ARCTIC CAT INC. v. BOMBARDIER RECREATIONAL PRODUCTS INC., Appeal No. 2019-1080 (Fed. Cir. February 19, 2020).  Before Lourie, Moore, and Stoll.  Appealed from S.D. Fla. (Judge Bloom).  (Patent Marking)


Arctic Cat owns the ‘545 and ‘969 patents, which are directed to thrust steering systems for personal watercraft (PWCs).  Bombardier was previously found to willfully infringe these patents.  As relevant to patent marking for pre-suit damages, unmarked PWCs were sold under a patent license until one year before Arctic Cat sued Bombardier for patent infringement.  Bombardier argued that Arctic Cat was not entitled to pre-suit damages because the licensee failed to mark the PWCs pursuant to 35 U.S.C. §287 while the PWCs were on sale.

In response, Arctic Cat argued that the damages limitation of §287 should not bar pre-suit damages when the unmarked PWCs were no longer sold.  In that respect, Arctic Cat argued that damages should be awarded at least for the one year period between the last sale of the PWCs and the filing of this lawsuit.  Further, Arctic Cat argued that §287 does not apply in light of the willful infringement holding, alleging that Bombardier had actual notice.  The district court held that Arctic Cat is precluded from all pre-suit damages due to the licensee’s failure to mark products in accordance with §287.  Arctic Cat appealed.


Did the district court err in holding that the damages limitation of §287 applies even after unmarked products are no longer sold?

Did the district court err in holding that Bombardier’s willful infringement is not sufficient to demonstrate actual notice for purposes of §287?  (continue reading)

Summary byStephano Salani

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