Under the patent marking statute, 35 U.S.C. §287, and Federal Circuit authority, patentees cannot recover pre-suit damages unless and until they (or their licensees) mark their patent-practicing products or provide actual notice of infringement, where such pre-suit damages accrue from as early as six years before suit is filed.
Divided Over Damages: Courts Split On Whether Failure to Mark Precludes All, or Only Some, Pre-Suit Damages
Only a few district courts have addressed the failure to mark in recent years — but they’ve reached directly opposing conclusions. This article analyzes the conflicting authorities and their reasoning, and it provides guidance to litigants on best practices given the conflict between district courts.
By
Cason Cole and Mark Liang
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