Tuesday, January 30, 2018

Description of Product Type May be Sufficient to Satisfy Section 287 Notice of Infringement

The court denied defendant's motion for summary judgment to preclude certain pre-suit damages for its anti-counterfeiting patents because there was a genuine dispute of fact whether plaintiff provided actual notice of infringement in a letter to defendant almost four years before it filed suit. "⁠[Defendant] principally contends that the letter failed to accuse specific products of infringement as required by Section 287(a). . . . Contrary to [defendant's] contention, [Amsted Indus. Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 187 (Fed. Cir. 1993)] . . . did not hold that Section 287(a) is not satisfied when the patentee notifies an alleged infringer of a 'type of product' that the patentee believes to infringe its patent. Rather, the letter that the Federal Circuit found inadequate in Amsted failed to accuse even the offering by any recipient of an infringing product or type of product. . . . [Plaintiff's] letter identifies [defendant's] film products 'that produce three dimensional images that appear to exist on a plane other than the surface of the film' and that [defendant] offered 'for packing and security label applications.' A reasonable factfinder could conclude that these statements provided a charge of infringement and sufficiently specific product identification for purposes of actual notice."

Crane Security Technologies, Inc. et al v. Rolling Optics AB, 1-14-cv-12428 (MAD January 26, 2018, Order) (Sorokin, MJ)

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