No Patent Marking, No Damages | Cape Law Firm

Patent Infringement

To re cover damages for patent infringement, U.S. patent law requires patent owners to either (i) mark the patented articles with a patent notice, or (ii) provide the accused infringer with notice of the infringement. If the articles themselves aren’t marked, the patent owner will only be able to recover damages after a specific infringement notice is delivered to the accused infringer, who then continues to infringe. The Federal Circuit Court of Appeals recently clarified the impact of the marking requirement in reversing a jury’s damages award which included pre-notice sales. The case involved a patented vape pen where the infringer sought to avoid damages by pointing to a particular vape pen offered on the patentee’s web site without a patent marking. Although the patent owner offered evidence that the infringer had actual notice of the patents, the Court explained that by not marking all of the patented articles, the patent owner could only recover damages for the period after it provided an infringement notice. Importantly, the notice must be “[an] affirmative communication of a specific charge of infringement by a specific accused product or device.”
The case should serve as an important reminder to seed companies to ensure that bags, boxes, and tags are accurately marked with the applicable patents that cover the seed.

EPA seeking input on dicamba crop injury

After 5 years of repeated widespread complaints of crop and landscape injury from dicamba herbicide, the EPA is seeking out information to better understand the impacts of current dicamba use and the severity of injuries to susceptible plants, according to a recent DTN report. In addition to requesting information from dicamba registrants (Bayer, BASF & Syngenta), EPA has asked for help from several groups such as State extension agents, academics, and the Weed Science Society of America, among others. The Agency’s requests have noted allegations of dicamba injury to a number of seed breeding programs and research plots which have not been previously reported. Many stakeholders in agriculture are concerned that dicamba injury is being underreported due to a lack of time, resources, and fatigue by State regulators and researchers.

Rural America needs lawyers

The Kansas Farm Bureau Legal Foundation has announced grants up to $16,500 to new lawyers willing to set up practices in rural Kansas counties. “Kansas farmers and ranchers need sound legal advice across a broad range of issues, especially as operations expand and become more complex.” The program seeks applicants to set up practices anywhere outside Douglas, Johnson, Sedgwick, Shawnee or Wyandotte counties. As we reported earlier this year, rural America faces a number of political and economic challenges as populations shrink, requiring new and novel approaches to maintaining rural communities and quality of life.

Cape Law Firm’s Frequently (or Randomly) Asked Questions

How can I generate carbon credits on my farm?

Using farms to capture carbon which can be sold as a “carbon credit” to businesses that generate a lot of carbon has generated a lot of buzz in agriculture lately, and pending federal legislation is poised to provide additional incentives for carbon-capturing ag practices. For farms, the current opportunities focus on converting conventional, highly-managed acreage to less intensive practices such as no-till, cover crops, perennials, and fewer fossil-fuel-based inputs. Carbon credits are earned by enrolling acres with a third-party verifier that certifies the farm’s use of carbon-capturing practices and documents the capture in a way that they can be sold to other businesses. The credits typically require a long-term commitment to implement practices for 10 years or longer so the carbon stays locked in the soil/plants. Some challenges to wide-spread adoption of on-farm carbon credits include difficulties in measuring the amount of carbon captured, and whether the financial benefits outweigh, or at least equal, the potential sacrifices in yields.

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