IP Blog
Patent Marking
How Important is Compliance with the Marking Statute? The Federal Circuit Continues to Say It Is Pretty Important.
When an accused infringer admits to knowledge of potential infringement, but the commercial embodiment of the patent fails to comply with the marking statute, 35 U.S.C. § 287, what date should be used for calculating damages? The Federal Circuit says that if a product is not compliant with § 287, damages are calculated from the date of actual notice regardless...
35 U.S.C. § 287(a) and the Burdens of Providing Notice for Pre-Suit Damages: Packet Intelligence LLC, v. Netscout Systems, Inc.
In Packet Intelligence LLC, v. Netscout Systems, Inc. the Federal Circuit reversed a jury determination for pre-suit damages, and vacated an enhancement of such damages, for Netscout’s infringement of U.S. Patent 6,665,725, U.S. Patent 6,839,751, and U.S. Patent 6,954,789, all owned by Packet Intelligence. The patents at issue were all directed to monitoring packets exchanged over a computer network. The...
Patent Marking Makes Patent Owner's Allegation of Practicing Invention a Double-Edged Sword
After alleging that its product practiced the invention claimed in its patent, and having failed to properly mark that product, a patent owner found itself unable to pursue damages for alleged infringement before the date when the accused infringer received actual notice of the patent. Bed Bath & Beyond, Inc. v. Sears Brands, LLC, No. 08-5839 (SDW)(MCA) (D. N.J. June...