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Patent Infringement Attorneys Proving Damages

In patent infringement litigation, the issue of product marking can be critical. Patent owners who do not mark their products are prevented by 35 U.S.C. § 287 from recovering any damages for any of the infringement occurring prior to serving an actual notice of infringement, or bringing suit. As an exception, products that only use a patented process need not be marked under § 287. On the question of when a sales-based damage model starts, a threshold question is whether marking was required and, if so, when marking occurred. Patent owners with claims of infringement to assert are urged to discuss with a patent infringement attorney whether any marking required to trigger the damage period has been satisfied.
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