On August 19, 2026, the Federal Circuit issued a precedential decision in VDPP, LLC v. Volkswagen Group of America, Inc., No. 2024-2226, affirming the dismissal of a patent infringement case because the patent owner could not plead that its licensees had complied with the patent marking statute, 35 U.S.C. § 287(a).

That statute requires anyone making or selling a patented device to mark the device with the number of any patent that covers it.  Without that marking, the patent owner forfeits its right to collect damages for any acts of infringement occurring before the lawsuit was filed (or, if applicable, before it properly notified the infringer of the alleged infringement).

In this case, VDPP argued that since it didn’t make or sell any products, it had nothing to mark and therefore the marking requirement didn’t apply.  That’s true, in a vacuum, but VDPP overlooked the Federal Circuit’s ruling in Arctic Cat Inc. v. Bombardier Recreational Products Inc.: the patentee’s licensees must also mark if the patentee wants to collect pre-suit damages for any period in which the license applied, and the patentee must make “reasonable efforts to ensure” that they do.

VDPP’s problem in this case was compounded by the fact that the patent had expired by the time it filed the lawsuit, so its only hope for any relief was through pre-suit damages.  But in the end, VDPP was sunk by its own actions.  VDPP had enforced this same patent in numerous prior lawsuits and had settlement agreements licensing the patent to the prior defendants.  Its proposed amended complaint in this case alleged no facts about whether any licensee marked.  VDPP argued that settlement agreements resolving prior litigation are not ordinary licenses, and did not qualify under Arctic Cat.  The court disagreed: a settlement agreement licensing a patent is still a license, and no special rules attach to it for the marking analysis.  Not only did none of the eleven settlements include language allowing VDPP to ensure the licensees mark, one of them said the licensee need not mark at all.

This is why a close look at a marking defense can be critical: the severity of a marking problem depends on where you are in the patent’s life.  At any point, it can trim damages for the defendant.  Near or after patent expiration, it can be the whole case.

This post is provided for general informational purposes and is not legal advice. Whether § 287 limits damages in any particular matter depends on the specific patents, agreements, products, and procedural posture involved.