Plaintiff’s Lost Profits Contentions Undermine Claim for Pre-Suit Damages

The court granted defendants' motion for summary judgment that plaintiff was not entitled to pre-suit damages because it did not comply with 35 U.S.C. § 287(a). "[Plaintiff] argues that it has not sold or imported any patented products in this country, so it need not comply with § 287(a). This is not plausible, however, in light of [plaintiff's] own admissions. In its infringement contentions, [plaintiff] specifically alleges that several of its products practice multiple claims of the [patent], and in seeking damages for lost profits, [plaintiff] claims that it would have earned more revenue in the United States from selling these products but for Defendants’ infringement. It cannot protest simultaneously that it was not selling any products here and that it lost revenue from not selling more of them."

Corning Optical Communications Wireless Ltd. v. Solid, Inc. et al, 5-14-cv-03750 (CAND September 16, 2015, Order) (Grewal, M.J.)