Friday, September 10, 2010

Failure to Mark Not Attributed to Licensor Where Licensee's Rights Arise From "License That Contains an Apparently Unlimited Covenant not to Sue"

Defendants' motion for summary judgment to limit damages for plaintiff's licensee's failure to comply with the marking requirement was denied. "Defendants’ argument on marking requires the court to determine the scope to be accorded the 'for or under' language of § 287(a) when there is a restrictive express license that contains an apparently unlimited covenant not to sue. Neither party has submitted case law directly addressing this issue, which is apparently one of first impression. . . . To focus solely on one phrase of the covenant would render the rest of the language surplusage. Thus . . . the [licensee's] sales of computers containing the allegedly infringing chips cannot be imputed to Plaintiff for purposes of the marking statute."

Phillip M. Adams & Associates, L.L.C. v. Lenovo International, et. al., 1-05-cv-00064 (UTD September 8, 2010, Memorandum Decision and Order) (Stewart, J.)

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