Non-Frivolous Defense Based On “Run-of-the-Mill” Claim Construction Argument Insufficient To Preclude Willfulness

The court denied defendants' motion for summary judgment of no willful infringement of plaintiff's food mold patent and rejected defendants' lack of notice argument. "[Plaintiff] did not give notice of infringement until [2 1/2 years ago], even though the defendants had been advertising and selling the products for a decade or more. Most telling is that [plaintiff] accused Defendants of infringing other patents, but did not mention the [patent-in-suit] until much later. . . . Although the defendants rely on [Kodak Co. V. Agfa-Gevaert N.V., 560 F.Supp.2d 227 (W.D.N.Y. 2008)], that decision was issued after a seven-day trial. Nowhere in that opinion does it suggest that, as a matter of law, a defendant cannot be a willful infringer if the patent holder does not give notice of infringement for a given number of years. . . . Here, there is no indication that (1) [plaintiff] knew of the infringement for a lengthy period of time; and (2) [defendant] knew that [plaintiff] knew."

Formax Inc. v. Alkar-RapidPak-MP Equipment Inc., et al, 1-11-cv-00298 (WIED June 26, 2014, Order) (Griesbach, J.)