Summary Judgment Sought on Marking Defense

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.