Although finding that the defendant met the “low bar” of its initial burden to raise such a defense, Judge Payne recommended denial of the plaintiff’s motion because there was a genuine issue of fact as to whether the products complied with 35 U.S.C. §287, entitling it to pre-suit damages. This was because the plaintiff did not present arguments that the products were so marked, relying only on its argument that the defendant had not cleared its initial burden.
Judge Godbey granted the motion to dismiss the plaintiff’s claims with prejudice, noting that the asserted patents had expired, and that the plaintiff had twice failed to plead compliance with the marking statute, 35 U.S.C. § 287(a), thereby precluding recovery of any pre-suit damages.
Not another one. I hate this subject. At least it’s just pleading standards, though.
Motion practice on marking issues has always been a nightmare of double negatives for me. This order is a good example.
This order arising from a recent pretrial conference provides an example of the type of rulings that parties receive on the eve of trial from Judge Gilstrap.
Rulings on three topics in this case on the eve of trial – one with dueling motions.
The bad news is that both motions were denied. Of course that’s also the good news.
Had the defendant had met the initial burden established in Arctic Cat, so that it was the plaintiff’s turn to prove compliance with the marking requirement?
There’s no tool in my woodshop that I think is as cool as my marking gauge. As a result, every time I see a dispute under § 287, I have a completely different mental image from what you’d expect. Like on this MSJ on damages on unmarked products.
Defendants sought summary judgment on pre-suit damages, and got an analysis regarding “bucketing” and some comments on the advisability of changing quotes.