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)