LUBBY HOLDINGS LLC v. CHUNG, Appeal No. 2019-2286 (Fed. Cir. September 1, 2021).  Before Newman, Dyk, and Wallach.  Appealed from C.D. Cal. (Judge Klausner). (Marking Requirement)


Lubby Holdings owned a patent directed to an electronic cigarette (e-cigarette) with reduced vapor fluid leakage.  Henry Chung had been in negotiations with Lubby concerning the sale of e-cigarettes in the United States, but those negotiations failed.  At the conclusion of the negotiations, an owner of Lubby Holdings warned Chung not to infringe their forthcoming patent.

Chung proceeded to import and sell a large quantity of infringing e-cigarettes from China, and continued to do so until shortly after being served with Lubby’s lawsuit for patent infringement.

The district court found Chung liable for infringement, and the jury awarded Lubby nearly a million dollars in damages.  Chung filed post-trial motions asserting that Lubby failed to meet the marking requirement, and thus infringement liability was limited to sales after service of the complaint (i.e. when he received actual notice of infringement).  The district court denied these motions, and Chung appealed.


Did the district court err in holding that Chung was liable for pre-litigation infringing sales? (continue reading)

Summary by:  Brian Repper

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