(SOF 4). It is indisputable that 35 U.S.C. § 287 contemplates only the marking of a “patented article,” and not a product for which a patent application is pending. Thus, Berman had no obligation to mark the TV Graffiti products sold prior to the issuance of the ’791 Patent.

The Court is of the opinion that the said motion should be granted. It is therefore ORDERED that Defendant Red Alinsod, M.D.’s Motion to Dismiss the Complaint Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6) and 35 U.S.C. § 287(c) is GRANTED. Case 2:16-cv-01189-JRG Document 14-2 Filed 12/19/16 Page 1 of 1 PageID #: 134

Here, Norman fails to allege marking at all. Nowhere in its Complaint does Norman allege that any products covered by the ’689 patent produced by itself or its licensees were properly marked under 35 U.S.C. § 287(a).

See generally Mass. Int. of Tech. v. Abacus Software, Inc., 2004 U.S. Dist. LEXIS 30052 (E.D. Tex. 2004). Incentives for website owners would tilt decisively toward publication of even dubious markings of internal mechanisms, because the substantial benefits of marking under § 287(a) (constructive notice for infringement) would be balanced against a nearly zero risk of liability under § 292 (a small chance of paying $500). Thus, Juniper submits that application of Oja to the facts of this case is inapposite, and that its claims for the Shipley’s generation of numerous mismarked web pages since 2004 should be allowed.

However, Ceres has not made that allegation, and even refuses to do so now.5 As AT&T argued in its opening brief, Ceres has not pleaded that any of the exceptions related to the recovery of past damages under section 287 apply in this case. See D.I. 99 at 5, n.2.

Id. at *33. The court then held that because only method claims were proceeding to trial, section 287(a) was “inapplicable.” Id. B. RIM Is Not Entitled to Judgment as a Matter of Law.

49. Acushnet has and has had constructive notice of the ’ 873 patent pursuant to 35 U.S.C. § 287(a). 50.

For instance, JumpSport produced the license agreements that evince JumpSport’s lack of a marking requirement on July 11, which was more than a month after Walmart amended its defenses. In addition, JumpSport’s response to Defendants’ Interrogatory No. 8, which asks JumpSport to “[d]escribe in complete detail all of JumpSport’s efforts to comply with the Marking requirements of 35 U.S.C. § 287 . . .,” was two short sentences that claim JumpSport marks its products and requires its licensees to do the same. JumpSport cannot bemoan a lack of factual detail when it has stonewalled Walmart’s efforts to obtain this very information.

IV. CONCLUSION For the foregoing reasons, Dick’s respectfully requests that the Court deny JumpSport’s Motion to Strike. To the extent the Court finds it proper to grant any part of JumpSport’s Motion, Dick’s respectfully requests leave to amend its Amended Answer. argument in its Amended Answer as an affirmative defense, the Court elects to construe that argument as an avoidance of liability that was properly asserted.”); see also Motorola, Inc. v. United States, 729 F.2d 765, 769 (Fed. Cir. 1984) (“[The predecessor statute of § 287] was not a statutory defense to an action for infringement; it was a limitation on damages.”). As a result, whether or not the Court denies JumpSport’s Motion with regard to Dick’s marking defense will not prevent Dick’s from later filing a dispositive motion regarding the same. 38 Mot. at 10; see also Dkt. Control Order, Dkt. No. 72 at 4. Case 6:17-cv-00414-RWS-JDL Document 161 Filed 08/15/18 Page 11 of 12 PageID #: 1868 12 Dated: August 15, 2018 Respectfully submitted, By: /s/ Carl E. Bruce Carl E. Bruce Texas Bar No. 24036278 bruce@fr.

section 287 argument in its Amended Answer as an affirmative defense, the Court elects to construe that argument as an avoidance of liability that was properly asserted.”); see also Motorola, Inc. v. United States, 729 F.2d 765, 769 (Fed. Cir. 1984) (“[The predecessor statute of § 287] was not a statutory defense to an action for infringement; it was a limitation on damages.”).