The court granted defendant's motion for summary judgment of no indirect infringement for the continuing acts of other defendants involving products sold by the moving defendant before it received actual notice. "[T]he Court concludes that the only manner in which to logically and consistently apply the binding precedent of [Fonar Corp. v. General Elec. Co., 107 F.3d 1543, (Fed. Cir. 1997)] is to hold that the continued use of the sixty-eight [accused products] that were clearly sold prior to notice does not give rise to direct infringement. And without direct infringement, [defendant] cannot be held liable for indirect infringement as to these products. . . . The Court notes however, that it is somewhat troubled by the result it has reached. . . . Continuing acts of infringement should carry with them independent consequences, particularly if these acts occur with notice of the infringement. Therefore, the resolution reached by the Court, in essence, allows the Defendants to do an end-run around this continuing infringement language within the marking statute. Nonetheless, the Court is bound by Federal Circuit precedent. . . ."
Tesco Corporation v. Weatherford International, Inc. et al., 4-08-cv-02531 (TXSD August 5, 2010, Memorandum & Order) (Ellison, J.)