"The Federal Circuit has affirmed an exceptional case finding and attorney fee award against Ortiz & Associates in its patent infringement action against Vizio. Ortiz & Associates Consulting, LLC v. Vizio, Inc., No. 2024-1783 (Fed. Cir. Dec. 17, 2025) (nonprecedential). Writing for the panel, Judge Bryson found no abuse of discretion in the district court's determination that the case "stands out from others" under Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014)."
"Patent marking allows a patentee to provide constructive notice and thus permits collection of back damages for up to six years. Under 35 U.S.C. 287(a), "[i]n the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter." A huge caveat to the rule is that back damages are permitted without notice in situations where there is no product to be marked."
The Federal Circuit affirmed an exceptional-case finding and an attorney fee award against Ortiz & Associates in its patent infringement action against Vizio. The decision, rendered by Judge Bryson, found no abuse of discretion in the district court's Octane Fitness determination that the case "stands out from others." The opinion raises but does not resolve an issue concerning non-practicing entity litigation and patent marking. Patent marking under 35 U.S.C. 287(a) permits constructive notice and recovery of up to six years of back damages when products are properly marked. Back damages may be available without notice when no product exists to mark, a common NPE circumstance, though NPE status can end once a patent is licensed.
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