When there has been a failure to mark a patented product, 35 U.S.C. § 287(a) forecloses damages for infringement “except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.” This notice requirement under §287(a) only applies to patentees that make or sell in the United States a product covering the patent. When a patentee fails to mark its product, the damages recoverable by the patentee are limited by the date that the accused infringer received actual notice of the infringement. And the patentee that failed to mark its product cannot recover pre-Complaint damages unless it provided the accused infringer with actual notice. (Under Section 286, patentees that do not make or sell a product can recover damages for up to six years predating the complaint). Accordingly, “[t]o begin recovering damages after sales of unmarked products have begun, § 287 requires that a patentee either begin marking its products or provide actual notice to an alleged infringer.” Arctic Cat Inc. v. Bombardier (plaintiff “never complied with the notice requirement of § 287 and thus cannot recover damages for any period prior to the filing of its complaint”).
To serve as actual notice under §287, a letter must communicate a charge of infringement of a specific patent by a specific product or group of products, and inform the alleged infringer of the patent holder’s identity. The letter must be “sufficiently specific to support an objective understanding that the recipient may be an infringer.” Monsanto v. Bowman. The inquiry focuses “on the action of the patentee, not the knowledge or understanding of the infringer.” Amsted v. Buckeye Steel. And the determination is made based on the totality of the circumstances.
Charge of infringement. To provide actual notice, a patentee’s letter must communicate a charge of infringement of a specific patent by a specific product or group of products. “For purposes of section 287(a), notice must be of the infringement, not merely notice of the patent’s existence or ownership.” Amsted (finding that letter sent to the whole industry, informing companies of patentee’s ownership of the patent, and generally advising the companies not to infringe, was not notice within §287 where the letter did not mention specific products). Conversely, letters that identify a product or group of products, and offer a license may constitute actual notice. Gart v. Logitech (finding actual notice because “from an objective standpoint, the clear inference from the [letter’s] reference to specific claims of the patent, a specific product, and the suggestion that a license under the patent may be needed is that” the patentee believed that the accused product infringed specific claims of the patent); see also SRI v. Advanced Technology (finding actual notice where the letter offered a license “instead of demanding that [the accused infringer] cease and desist”).
Specific product. Generally, “[a]ctual notice requires the affirmative communication of a specific charge of infringement by a specific accused product or device.” Amsted. But a letter omitting a specific product may nonetheless provide actual notice under §287 given the totality of the circumstances. See Minks v. Polaris (finding letter that specified the infringing mechanism, but not a specific product, made a charge of infringement in light of earlier communications by the parties); see also Gart (finding that a 1996 letter by the patentee would not constitute actual notice by itself, but did constitute actual notice when viewed in light of a 1995 letter by patentee). Moreover, when a letter is sufficiently specific as to some products, discovery of other related products that contain the same allegedly infringing components “may bring those products within the scope of the notice.” Funai v. Daewoo.
Patentee’s identity. Actual notice under § 287(a) “must be an affirmative act on the part of the patentee which informs the defendant of infringement.” Lans v. Digital Equipment. Thus, notice from someone who is not the patentee “does not satisfy § 287(a),” even if the person is “closely associated with the patentee.” Id. This requirement is met where the relevant patent is enclosed with the notice letter sent by a non-patent holder, and the enclosed patent correctly identifies the current patent holder. U.S. Phillips v. Iwasaki.
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Willfulness finding. “[W]illfulness, as an indication that an infringer knew of a patent and of its infringement, does not serve as actual notice as contemplated by § 287.” Arctic Cat. “While willfulness turns on the knowledge of an infringer, § 287 is directed to the conduct of the patentee. The marking statute imposes notice obligations on the patentee, and only the patentee is capable of discharging those obligations.” Id. (jury finding of willfulness is not sufficient to show actual notice for plaintiff to recover maximum pre-suit damages).
Relationship to a declaratory judgment action. “The criteria for actual notice under Section[] 287(a) are not coextensive with the criteria for filing a declaratory judgment action. These statutory purposes are distinct, serve different policies, and are governed by different laws.” SRI. Thus, actual notice under §287 “may be achieved without creating a case of actual controversy” sufficient for a declaratory judgment action. Id.
Notice not required. “The notice provisions of § 287 do not apply to patents directed to processes or methods. Nor do they apply when a patentee never makes or sells a patented article. Thus, a patentee who never makes or sells a patented article may recover damages even absent notice to an alleged infringer.” Arctic Cat.