Fresh From the Bench: Latest Federal Circuit Court Cases

CASE OF THE WEEK

Arctic Cat Inc. v. Bombardier Recreational Products Inc., Appeal No. 2019-1080 (Fed. Cir. Feb. 19, 2020‎)

In this week’s Case of the Week, the Federal Circuit addresses issues relating to the notice requirement of the patent marking statute, 35 U.S.C. § 287. The patents relate to thrust steering systems for personal watercraft (“PWCs”). The patent owner, Arctic Cat, appealed a district court judgment that it is not entitled to pre-suit damages from Bombardier due to the failure of Arctic Cat’s licensee to mark its products in accordance with Section 287. The Court affirmed the district court’s judgment.

As background, Arctic Cat licensed its patents to Honda. The original draft license agreement included a requirement that Honda mark its products with Arctic Cat’s patent numbers; however, a later draft removed that clause. The final agreement was signed with an express statement that Honda had no obligation to mark its licensed products. Honda thus began making and selling unmarked licensed products, and Arctic Cat made no effort to mark them. At some point prior to the filing of the complaint against Bombardier for patent infringement, Honda ceased selling the unmarked licensed products.