Under the patent marking statute, 35 U.S.C. §287, patentees are precluded from recovering pre-suit damages unless they mark their patent-practicing products or provide actual notice of infringement. However, ambiguity arises when the marking obligation begins only shortly before a filing, within the six-year pre-suit window.
The issue has created a split among district courts on whether all pre-suit damages or only those accrued after the marking obligation commenced should be denied. This has significant implications on the extent of damages a patentee may claim and the extent of financial exposure a defendant may face. Find out more about the conflicting court decisions and recommendations for litigants.