Oribel Loses Pre-Suit Damages Against Carter's and Skip Hop After Failing to Show Reasonable Marking Efforts.

The case

Oribel Pte. Ltd. sued Carter's Retail, Inc., The William Carter Company, and Skip Hop in November 2024 over U.S. Patent 10,736,437, titled Portable Activity Center. The order memorializes rulings from a September 8, 2026 pretrial conference. The court released the case from its September and October trial dates and denied the defendants' motion to continue as moot.

Claim 1 was not in Oribel's final election of claims, and the court denied the defendants' motion for summary judgment of noninfringement of claim 18 and its dependent claims. Claim 18 covers a portable activity center for a young child with a frame, legs, a tray with an opening, a seat positioned within the opening and securely attached to a seat support, a cover that is interchangeable with the seat and positioned within the opening to convert the activity center into a table structure, and at least one interchangeable playgroup accessory removably secured to that cover.

The marking ruling

The court granted the defendants' motion for summary judgment of no pre-suit damages. The order says Oribel "failed to show reasonable efforts to ensure substantial compliance for marking." Its only evidence of reasonable efforts was that it told its manufacturer, Meiban, to tell its packaging entity to make sure the products were marked, and it did not represent that it had any contract or line of communication beyond that original statement. As a result, the order says, Oribel failed to mark 61 percent of patent-practicing units between 2021 and 2023, and the court found that failure "to be a lack of substantial compliance that was probative of the lack of reasonable efforts."

The court also granted summary judgment of no pre-suit willful infringement, stating that failure to comply with the marking statute prohibits recovery of pre-suit damages. Under 35 U.S.C. 287(a), a patentee that fails to mark may recover damages only for infringement after the infringer was notified, and the filing of an infringement action constitutes notice. The court denied the motion as to lost profits, both Oribel's own and those of non-party Oribel Inc.

Other rulings

The order says the defendants withdrew their invalidity defenses. The court granted Oribel's motion on several affirmative defenses, largely as unopposed, and held that prosecution disclaimer "is not an affirmative defense in a trial on the merits before the jury." On the motions in limine, it barred the term "copying" but allowed "benchmarking" and "reverse engineering," excluded evidence of Skip Hop's alleged offer to buy the PortaPlay concept from Oribel, and declined to bar evidence that Skip Hop knew of the '437 patent.

What it means

Delegating marking to a manufacturer and packager without a contract or follow-up did not count as reasonable efforts here, and the court treated the 61 percent of practicing units left unmarked from 2021 to 2023 as probative of that lack of reasonable efforts. With invalidity withdrawn, the remaining disputes for trial include infringement of claim 18 and its dependent claims and post-notice damages, including lost profits.

What to watch next

Watch for a new trial setting and whether the parties narrow the damages period in light of the marking ruling.