The United States Code, Title 35, Section 287, allows those holding utility or design patents to recover damages for up to six years prior to filing legal action against an infringer, as long as the patentee has given notice of the alleged infringement[1]. However, a divide exists among district courts in their interpretation of this statute, particularly in cases wherein marking cannot be carried out on a patented article due to its character.
The Federal Circuit, as the central appellate structure overseeing patent appeals, carries the potential authority to resolve this district split. Clarifying the interpretation of Section 287(a), an influential statute with significant implications for patent damages would provide a consistency that is currently lacking among the district courts.
The actions of Nicholas Nowak and Jamie Dohopolski at Sterne Kessler can be seen as a step towards this objective. The duo has called upon the circuit to view this as an unmissable opportunity to refine the narrative surrounding Section 287(a) and its interpretation, ensuring that it is clear and universally understood[1].
This ideally should not only streamline the process of resolving cases of alleged patent infringements but also ensure a fair and just outcome for any utility or design patentee trying to protect their patent rights.