The CAFC analyzes 35 U.S.C. § 287 in Arctic Cat

The outcome:



Arctic Cat Inc. (“Arctic Cat”) appeals from a judgment
of the United States District Court for the Southern District of Florida that Arctic Cat is
not entitled to recover precomplaint damages from Bombardier Recreational Products Inc. (“Bombardier”) due to the failure of Arctic Cat’s
licensee to mark products in accordance with 35 U.S.C.
§ 287. Arctic Cat Inc. v. Bombardier Recreational Prods.,
334 F. Supp. 3d 1238, 1240 (S.D. Fla. 2018). Because we
agree with the district court that § 287 continues to limit
damages after a patentee or licensee ceases sales of unmarked products, and that willful infringement does not
establish actual notice under § 287, we affirm.

(...)

This case presents a discontinuous situation in which
unmarked products were sold, such that Arctic Cat could
not receive damages before providing notice, but the sales
of unmarked products allegedly stopped for a period of time
prior to the filing of Arctic Cat’s complaint. Thus, the issue
presented is whether the cessation of sales of unmarked
products excuses noncompliance with the notice requirement of § 287 such that a patentee may recover damages
for the period after sales of unmarked products ceased but
before the filing of a suit for infringement. We hold that it
does not.



An argument about "verb tense" was presented:


Arctic Cat argues that, because § 287 is written in the
present tense, the statute by its terms only applies while a
patentee is “making, offering for sale, or selling” its products. Thus,
according to Arctic Cat, the statute limits damages only during periods when the patentee is actually
making, offering for sale, or selling the patented article.
Bombardier responds that, to begin recovering damages after sales of unmarked products have begun, § 287 requires
that a patentee either begin marking its products or provide actual notice to an alleged infringer; cessation of sales
of unmarked products is not enough. We agree with Bombardier.



Also of note


Arctic Cat also argues that, regardless of its failure to
mark, it should nevertheless recover the maximum amount
of pre-suit damages allowed by 35 U.S.C. § 286 because the
jury’s finding that Bombardier willfully infringed the asserted claims should be sufficient to establish actual notice
under § 287. Arctic Cat acknowledges, as it must, that this
argument is foreclosed by our precedent. In Amsted Indus.
Inc. v. Buckeye Steel Castings Co. we held that the determination whether a patentee provided actual notice under
§ 287 “must focus on the action of the patentee, not the
knowledge or understanding of the infringer,” and that “[i]t
is irrelevant . . . whether the defendant knew of the patent
or knew of his own infringement.” 24 F.3d 178, 187 (Fed.
Cir. 1994) (citing Am. Med. Sys., Inc., 6 F.3d at 1537 n.18)).
Accordingly, we reject Arctic Cat’s argument.
Aside from our inability to reverse the decision of an
earlier panel, see Newell Cos., Inc. v. Kenney Mfg. Co., 864
F.2d 757, 765 (Fed. Cir. 1988), we reiterate the conclusion
that willfulness, as an indication that an infringer knew of
a patent and of its infringement, does not serve as actual
notice as contemplated by § 287. While willfulness turns
on the knowledge of an infringer, § 287 is directed to the
conduct of the patentee. The marking statute imposes notice obligations on the patentee, and only the patentee is
capable of discharging those obligations. It is not directed
to the infringer and does not contemplate mere knowledge
of the infringer as sufficient to discharge the notice requirements placed on the patentee.




The matter of typographical error arises:


Arctic Cat bases its argument for reversing Amsted on
a supposed typographical error in that opinion in a quotation from the Supreme Court’s decision in Dunlap v.
Schofield, 152 U.S. 244 (1894). Where the Supreme Court
stated that notice “is an affirmative fact,” id. at 248, our
opinion in Amsted quoted Dunlap as characterizing notice
as “an affirmative act,” 24 F.3d at 187. Arctic Cat argues
that this discrepancy undermines the reasoning in Amsted
and that, properly understood, Dunlap stands for the proposition that notice is a fact that can be proved by knowledge
of the infringer. But the alleged mistranscription in Amsted is inconsequential to our analysis of Dunlap because
the relevant fact is the act of the patentee. T