Tuesday, August 14, 2018

Jury Finding of Willful Infringement Does Not Satisfy Section 287 Notice Requirement

Following remand, the court granted defendant's motion for summary judgment to preclude plaintiff from seeking pre-suit damages and rejected plaintiff's argument that the jury's willful infringement finding satisfied plaintiff's obligation to establish actual notice. "⁠[Plaintiff] argues . . . that it meets it burden to show actual notice under Section 287 based on both the Court’s rulings and the jury’s findings of willful infringement. [Plaintiff] further points to evidence introduced at trial that [defendant] knew about the [patents-in-suit] and was aware internally about potential infringement. But the reading of the statute that [plaintiff] urges conflates the patentee-centered inquiry of notice under Section 287(a) with the infringer-centered inquiry of willfulness with regard to liability. . . . The jury’s finding of willfulness does not relieve [plaintiff] of its obligation to mark or notify -- neither of which [plaintiff] did prior to [filing suit]. "

Arctic Cat Inc. v. Bombardier Recreational Products Inc. et al, 0-14-cv-62369 (FLSD August 10, 2018, Order) (Bloom, USDJ)

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