On February 19, the United States Court of Appeals for the Federal Circuit issued its opinion affirming a $28 million summary judgment win by WilmerHale client Bombardier Recreational Products, Inc. (BRP) in its long-running patent dispute with Arctic Cat, Inc.

Arctic Cat had previously obtained a $46 million judgment against BRP for infringement of two patents related to personal watercraft steering technology, but following an earlier appeal, the district court entered summary judgment in BRP’s favor reducing that judgment to roughly $18 million, because Arctic Cat had failed to comply with the patent marking statute. On appeal Arctic Cat argued that it was not required to comply with the patent marking statute, because its licensee had stopped selling patented products. The Federal Circuit rejected this argument, holding instead that where a patent owner or its licensee “merely stopped selling unmarked products” the patent owner has “never complied with the notice requirement” and cannot recover damages. The Federal Circuit also rejected Arctic Cat’s alternative argument that a typographical error in an earlier Federal Circuit opinion called that opinion’s validity into question.

As a result of Arctic Cat’s noncompliance with the marking statute, it cannot collect the roughly $28 million dollars in damages that it had claimed for the period before it put BRP on notice of its patent.

BRP was represented by Louis Tompros, Jennifer John and Michelle Sandals.