In patent litigation, a patentee may recover damages for up to six years prior to the filing of the complaint. However, the patent-marking statue, 35 U.S.C. Section 287(a), may limit the amount of past damages the patentee can recover when the patentee or its licensee makes or sells a product covered by the patent, but does not mark the product with the patent number. Nevertheless, under current law of the U.S. Court of Appeals for the Federal Circuit, there is an important exception to the patent-marking statute — a patentee that asserts only method claims is exempt. Because past damages may form a significant part of potential recovery, understanding when to limit the asserted claims may be a critical component in forming a litigation strategy.
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Originally published in the August 21, 2014 edition of the Daily Journal.
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