Account

Sign in to access your account and subscription

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.

13 minute read May 31, 2025 at 11:15 PM
By
Cason Cole and Mark Liang
Divided Over Damages: Courts Split On Whether Failure to Mark Precludes All, or Only Some, Pre-Suit Damages

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.

This premium content is locked for The Intellectual Property Strategist subscribers only

ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN The Intellectual Property Strategist

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

Already have an account? Sign In Now

For enterprise-wide or corporate access, please contact Customer Service at [email protected] or call 1-877-256-2473.

NOT FOR REPRINT

© 2026 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.

Continue Reading

Most firms are aiming their newest tools at the work they already do — pouring their most powerful technology into running the same tasks a little faster. But when everyone automates the same tasks at once, no one pulls ahead. That reaches the future a little faster while leaving a firm’s largest opportunity untouched — and that opportunity isn’t doing more of the existing work, but transforming how the high-value work gets done.

June 01, 2026

Artificial intelligence is rapidly embedding itself into legal workflows, but much of the conversation treats all use cases as if they carry the same level of risk, even if they do not. The more useful question is not whether AI works, but where it can be safely applied and where it cannot.

June 01, 2026