As highlighted by a recent decision of the U.S. District Court for the Southern District of New York,1 a party's failure to properly mark its products with its issued U.S. patent number(s) will very likely result in a complete loss of the ability to recover infringement damages that occurred prior to the delivery of a specific allegation of infringement to an accused infringer. As further explained below, companies should thus very seriously consider the inclusion of patent markings on all relevant products. At bottom are two annotated versions of a figure from U.S. Design Patent No. USD720.933 for a "FACE WASHING BRUSH," issued on January 13, 2015, which was the design patent asserted in the matter noted above. While physically marking such a product is not always trivial (or desirable from a product aesthetic/marketing standpoint), an appropriate patent marking as suggested below would have provided the patent owner with the ability to collect pre-suit damages.
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