Defeating Patent Trolls with Failure to Mark
Many defendants to patent troll suits have never heard of the patent owner or its patent(s), and will have never received notice of infringement until service of the lawsuit. Typically patent trolls have no product to mark, since they are non-manufacturing entities. In that situation, the patent troll must take reasonable steps to ensure that its licensees mark their licensed products – if it has licensees. If a patent troll plaintiff has not required its licensees to mark, the defendant may be able to defeat past damage claims without spending thousands in legal fees mounting a defense on the merits to an infringement claim. This, at the very least, minimizes potential exposure to a patent infringement defendant.