Plaintiff cannot recover pre-suit damages because of unmarked licensee products

Packet Intelligence v. NetScout was decided on July 14, 2020, on appeal from the Eastern District of Texas. Plaintiff Packet Intelligence sued Defendant NetScout on two method-claims patents and one apparatus-claims patent. The jury found all claims willfully infringed, rejected NetScout’s invalidity defenses under § 102, awarded $3.5 million in …

No appellate jurisdiction for non-final judgments of lack of notice under Section 287

Iron Oak Techs. v. Microsoft is a nonprecedential case decided on June 8, 2020, on appeal from the Northern District of Texas. In 2016 and 2017, Iron Oak sued various electronics manufacturers. Because those lawsuits implicated Microsoft’s products, Declaratory Plaintiff Microsoft sued Iron Oak “seeking a declaratory judgment action that …

Finding of bad faith is required to enjoin patentee from making infringement accusations

Myco v. BlephEx was decided on April 3, 2020 on appeal from the Eastern District of Michigan. Declaratory plaintiff Myco filed an action against declaratory defendant BlephEx, seeking a declaration of no infringement and that the claims of BlephEx’s patent are invalid, and for injunctive and monetary relief. The district …

Patent infringement notice letter examples: Philippi-Hagenbuch v. Western Technology Service International

In Philippi-Hagenbuch v. Western Technology Service International, the Central District of Illinois made mixed findings as to whether patent infringement notice letters sent by Plaintiff’s counsel were sufficient under 35 U.S.C. § 287. The found that that the 2004 letter was sufficient to provide actual notice for damages for patent …

Marking statute limits damages even after the sale of unmarked product ceases

Artic Cat v. Bombadier Recreational was decided on February 19, 2020 on appeal from the Southern District of Florida. Plaintiff Artic Cat entered into a license agreement with a third party, which “expressly stated that [the third party] had no marking obligations.” Thereafter, the third party began making and selling …

Federal Circuit on Section 286 and the statute of limitations for patent infringement damages

Section 286 of the Patent Act “sets forth a limitation on damages.” Adams & Associates v. Dell. Under 35 U.S.C. § 286, “[e]xcept as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for …

Damages available for products in amended complaint that relate back to the originally accused products

Anza Tech. v. Mushkin was decided on August 16, 2019 on appeal from the District of Colorado. Plaintiff Anza filed this action in March 2017 against Defendant Mushkin in the Eastern District of California. In September 2017, Anza filed its first amended complaint, which joined Avant as a co-defendant. The …

Case exceptional where Plaintiff did not perform a simple test of the publicly available accused products

ThermoLife v. GNC was decided on May 1, 2019 on appeal from the Southern District of California. Plaintiff ThermoLife brought suit against Defendant GNC, and other defendants, for patent infringement. This was one of 81 infringement lawsuits the exclusive licensee filed. The patents relate to “methods and compositions involving the amino …

Federal Circuit on providing actual notice under Section 287 for patent infringement damages

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 …

Foreign suit doesn’t rebut laches presumption unless defendant knows of the subsequent US suit

Lismont v. Alexander Binzel was decided on February 16, 2016 on appeal from the Eastern District of Virginia. There, the district court granted summary judgment for Alexander Binzel, concluding that Lismont’s inventorship claim, which he filed in the US (in 2012) ten years after the patent issued, was barred by laches. Throughout …