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Judge Burke recommends granting defendants’ motion for summary judgment regarding damages

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In a recent Report and Recommendation, Magistrate Judge Christopher J. Burke recommended that the court grant defendants’ motion for summary judgment regarding damages. Lambda Optical Solutions, LLC v. Alcatel-Lucent USA Inc., C.A. No. 10-487-RGA-CJB (D. Del. Jul. 29, 2015). First, defendants (collectively, “Alcatel”) argued that “Lambda cannot recover pre-suit damages from the date when LOS [, the assignee of the asserted patent,] stopped selling unmarked patented products (February 28, 2007) until the date it gave Alcatel notice of the patent by filing suit in this case (June 4, 2010).” Id. at 5. Considering Alcatel’s argument, Judge Burke was required to address a fairly unsettled question:  “whether a patentee that sells unmarked product, but later ceases such sales, becomes a non-producing patentee that may obtain damages under Section 287(a) once sales of the unmarked product cease.” Id. at 7. Judge Burke found that it did not, and therefore recommended that “Lambda is not entitled to damages for the time between when LOS stopped selling unmarked products and the date when Lambda filed suit.” Id. at 13.  Judge Burke reasoned this outcome was consistent with the actual language of Section 287(a), and comported with the policies underlying Section 287. See id. at 7-13. For example, Judge Burke noted that “if a patentee-plaintiff were able to return to the more favorable status of a nonproducing patentee simply by halting production of unmarked product, this would not encourage patentees in the first instance ‘to give notice to the public that the article is patented,’ nor would it ‘aid[] the public to identify whether an article is patented[.]’” Id. at 11. Alcatel also argued that Lambda was not entitled to damages based upon sales of Alcatel’s 1675 LambdaUnite product. Id. at 13. Judge Burke agreed with Alcatel and recommended granting summary judgment in its favor on this issue, finding that the product failed to “selectively provide optical coupling,” as required by the independent claims at issue. Id. at 14.

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