News & Analysis as of

Patent Litigation § 287

Manatt, Phelps & Phillips, LLP

Employee/Officer Held Personally Liable for Patent Infringement

In Lubby Holdings LLC v. Chung, the Federal Circuit held corporate officers and employees who actively assist with their corporation’s infringement may be personally liable for inducing infringement even without any piercing...more

Buckingham, Doolittle & Burroughs, LLC

Can Notice of Infringement be Inferred Under Sec. 287(a)?

The Federal Circuit in Lubby Holdings v. Chung overturned a jury verdict finding that Lubby satisfied Sec. 287(a)’s requirement to notify Chung of his infringement. Was this reversible error, or has the court determined that...more

McDermott Will & Emery

Notice Under § 287 Means Knowledge of Infringement, Not Knowledge of Patent

McDermott Will & Emery on

The US Court of Appeals for the Federal Circuit reversed a district court’s finding of liability for infringement that occurred prior to the filing of the action, explaining that notwithstanding the defendant’ admission that...more

Bradley Arant Boult Cummings LLP

Federal Circuit Vaporizes Pre-Suit Damages

Section 287 of the U.S. Patent Act gives a patent owner the ability to recover damages for patent infringement in two ways: (1) if a patented article is marked; or (2) if actual notice of infringement has been provided. The...more

Knobbe Martens

A General Warning Against Infringement Is Not Actual Notice of Infringement

Knobbe Martens on

LUBBY HOLDINGS LLC v. CHUNG - Before Dyk, Newman, and Wallach. Appeal from the Central District of California. Summary: Specific charges of infringement by a specific accused product are required to provide actual...more

Mintz - Intellectual Property Viewpoints

Federal Circuit: Licensees’ Failure to Mark Eliminates Entitlement to Pre-Suit Damages

Recently, in Packet Intelligence LLC v. NetScout Sys., Inc., No 19-2041 (July 14, 2020), the Court of Appeals for the Federal Circuit reversed a jury verdict of $3.5 million in pre-suit damages and vacated the trial court’s...more

Knobbe Martens

A Patentee Cannot Circumvent the Marking Requirement by Proving Separate Infringement of Method Claims

Knobbe Martens on

PACKET INTELLIGENCE LLC v. NETSCOUT SYSTEMS, INC. Before Lourie, Reyna, and Hughes. Appeal from U.S. District Court for the Eastern District of Texas - Summary: The defendant’s infringement of method claims through...more

Knobbe Martens

Enjoining Speech and the Right to Allege Patent Infringement

Knobbe Martens on

MYCO INDUSTRIES, INC. v. BLEPHEX, LLC - Before Newman, O’Malley, and Taranto. Appeal from the U.S. District Court for the Eastern District of Michigan - Summary: Enjoining a patentee from making statements about...more

Mintz - Intellectual Property Viewpoints

Too little, too late: Federal Circuit holds that cessation of sales does not alleviate patentee’s affirmative duty to mark

In a February 19, 2020 decision the Federal Circuit held that a patentee does not escape 35 U.S.C. § 287’s marking requirement merely by ceasing sales of the practicing product. Instead, the Federal Circuit held that once a...more

McDonnell Boehnen Hulbert & Berghoff LLP

Arctic Cat Inc. v. Bombardier Recreational Products Inc. (Fed. Cir. 2020)

The patent marking statute, codified at 35 U.S.C. § 287(a) appears straightforward: Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing...more

Knobbe Martens

Pre-Complaint Damages for Willful Infringement Sunk by Failure to Comply With Marking Statute

Knobbe Martens on

Arctic Cat Inc. v. Bombardier Recreational Prods. Inc. Before Lourie, Moore, and Stoll. Appeal from the Southern District of Florida. Summary: To recover pre-complaint damages for infringement after sales of unmarked...more

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