by Dennis Crouch
The Federal Circuit has affirmed an exceptional case finding and attorney fee award against Ortiz & Associates in its patent infringement action against Vizio. Ortiz & Associates Consulting, LLC v. Vizio, Inc., No. 2024-1783 (Fed. Cir. Dec. 17, 2025) (nonprecedential). Writing for the panel, Judge Bryson found no abuse of discretion in the district court's determination that the case "stands out from others" under Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014).
The decision also raises (but doesn't decide) an underdeveloped issue involving NPE litigation and patent marking.
The Patent Marking Statute Many of us are familiar with products marked as PATENTED and then listing the patent number. Patent marking allows a patentee to provide constructive notice and thus permits collection of back damages for up to six years. Under 35 U.S.C. 287(a), "[i]n the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter." A huge caveat to the rule is that back damages are permitted without notice in situations where there is no product to be marked. This is typically the case for non-practicing entity (NPE) litigation where the plaintiff's key asset is the patent. But, the NPE status goes away once the patent is licensed, which is the common result of patent litigation settlement.To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.