CAFC: Marking must be pled, but specificity is optional

Sentry Protection v. Eagle Manufacturing (Fed. Cir. 2005)

In a case involving patented technology for protecting structural columns from motor vehicle accidents, the Federal Circuit affirmed-in-part and remanded.

One question on appeal involved whether the patentee could obtain damages for pre-suit infringement under a theory of constructive notice via marking.  The CAFC held:

  1. Pleadings/Waiver: Although there is a requirement that "constructive notice" must be pled, pleading that the "infringement have been willful and with full knowledge of the . . . patents" was sufficient to avoid waiver.
  2. Summary Judgment: Plaintiff had produced evidence of marking and an affidavit stating that its products had been marked — this evidence is sufficient to reverse the district court’s summary judgment of noninfringement for lack of constructive notice.