Patent marking gives public notice by marking a patented article with the patent number or a qualifying virtual-marking address. Actual notice of infringement is a separate route under 35 U.S.C. 287(a). Where the marking requirement applies, failure to mark can limit damages to infringement occurring after actual notice.

What the statute requires in short

Section 287(a) ties recoverable damages to constructive notice through marking, or to actual notice of the infringement. The statute is about limiting pre-suit damages for patented articles that are made, offered, or sold. It is not a free-standing willfulness doctrine. A complaint may allege willfulness under 35 U.S.C. 284 on a notice theory while section 287 separately cuts how far back ordinary damages can reach. Keep those tracks distinct when you read a prayer for relief.

Why litigators care

Pre-suit damages frequently turn on notice under section 287. That is true in competitor cases and in licensing-driven dockets. Settlement licenses are still licenses for marking purposes. How a complaint pleads licensee compliance (or reasonable efforts) can become a Rule 12 issue. Express no-obligation-to-mark clauses in settlement licenses create hard facts for the patentee. Virtual marking via a freely accessible internet address that associates the patented article with the patent numbers is also part of the modern statute; details belong to the current text of section 287(a) and to counsel's review of the client's marking program.

What VDPP held

In VDPP, LLC v. Volkswagen Group of America, Inc., No. 2024-2226 (Fed. Cir. Aug. 19, 2026) (precedential), the Federal Circuit affirmed dismissal without leave to amend. On this expired-patent record, VDPP did not plead licensee marking or reasonable efforts that could support the damages sought; settlement licenses were not exempt from section 287(a). The court also affirmed a section 285 fee award of $207,543.60. A separate appeal of counsel's personal sanctions was dismissed for lack of appellate jurisdiction.

The opinion builds on familiar marking cases: licensees must comply even when the owner does not practice (Arctic Cat Inc. v. Bombardier Recreational Products Inc., 950 F.3d 860, 864 (Fed. Cir. 2020)); a settlement license is still a license (TransCore, LP v. Electronic Transaction Consultants Corp., 563 F.3d 1271, 1275-76 (Fed. Cir. 2009)); and notice turns on the patentee's actions, not the accused infringer's subjective view (Lubby Holdings LLC v. Chung, 11 F.4th 1355, 1360 (Fed. Cir. 2021)).

On the VDPP record, the proposed amended complaint said only that VDPP is a non-practicing entity with no products to mark and that statutory conditions were met. VDPP had eleven settlement agreements licensing U.S. Patent 9,426,452. One of those agreements specified that the licensee had no obligation to mark. The court treated leave to amend as futile on that record. The court expressly left open the possibility that reasonable efforts could be established without a contractual marking obligation. Actual notice remains a separate statutory route to damages for infringement occurring after the required notice.

What defendants and plaintiffs watch

  • Plaintiffs / licensors: when section 287(a) applies and damages depend on marking, document licensee marking and reasonable efforts to secure compliance. Separately identify any actual notice and the period of infringement after that notice. A bare statement that the owner makes no products does not answer the licensee question.
  • Defendants / defense counsel: distinguish damages based on marking from damages after actual notice. Where marking is relevant, examine the pleaded facts about licensees and reasonable efforts, along with settlement agreements properly before the court.
  • Both sides: separate section 287 damages-window arguments from section 284 willfulness allegations. The same notice letter can matter for both, but the doctrines answer different questions.

Examples from this board

The board's deep dive on VDPP v. Volkswagen is the working example: expired patent, back damages only, eleven settlement licenses, an express no-marking clause in at least one license, and a precedential affirmance of dismissal plus section 285 fees. That page is the case-specific companion to this overview.

What to watch next

Watch whether later panels treat the "no way to amend" language as limited to a record with many licenses and an express no-marking clause. Also watch how quickly Rule 12 motions start attaching settlement licenses to force a marking plea on the papers.

Practice pointers

  • Where section 287(a) applies, identify whether the claimed damages depend on marking, actual notice, or both, and plead the relevant facts.
  • Audit settlement templates for no-marking clauses before the next enforcement wave.
  • On defense, separate the marking merits from fees and sanctions so a jurisdictional miss on personal sanctions does not muddy the 287 holding.
  • When a pre-suit letter arrives, ask whether it is being used for actual notice under section 287, for willfulness under section 284, or for both.