D. Mass. denies SJ where settlement licensees failed to mark

The District of Massachusetts, in In re NeuroGrafix ('360) Patent Litigation, Case No. 1-13-md-02432 (Judge Stearns) (August 1, 2016), denied defendants' summary judgment motion to limit plaintiff's damages for its licensees' failure to mark. The fact pattern is one that is relatively common when multiple defendants are sued under the same patents: The plaintiff had settled with two manufacturers, and in the agreement gave a license to the manufacturers, but then failed to ensure that they marked the licensed MRI system with the patent number. The court denied the motion, citing the following facts: (1) "it is unclear to the court what, if any, products should have been market with the [patent]," (2) the licensees "expressly denied infringement in their respective settlement agreements," and (3) the agreements did not "identify a specific set of licensed products." Elec. Order at 1. "Finally, the court notes that obtaining a patent license after being sued is a common compromise undertaken to settle a claim and avoid expensive and uncertain litigation. Because defendants have not met their burden of production in showing that there are licensed products practicing the patented technology that should be marked, their motion for summary judgment on this ground will be denied." Id.