Triable Issues in Section 287 defenses

Reader: There is no way you can connect pictures of a sunken aircraft carrier’s planes to damages defenses in patent cases.

Me: Hold my beer.

The discovery of the wreck of the old Lexington (CV-2) sunk at the Battle of the Coral Sea was almost an anticlimax after the wreck was found to have dozens of nearly perfectly preserved aircraft that had apparently floated off the carrier’s flight deck as it sank.  Most notable were several TBD Devastator torpedo bombers and F4F-3 Wildcat fighters in part because even after 76 years at the bottom of the Pacific the aircraft still had nearly pristine … markings.

In patent cases, whether or not products were marked can have a major effect on the recoverable damages.  And in a way not really at all similar to the way that submersion for 76 years at the bottom of the Pacific didn’t erase the Felix the Cat insignia on the F4Fs, the facts of how products were marked can make damages recoverable, or at least shift the burden under Arctic Cat.

This recent decision provides another useful analysis of when the burden was successfully shifted, and when there is a triable issue as to whether Plaintiff provided actual notice under § 287 before the lawsuit.