Marking : CAFC Alert

CAFC Rejects the Doctrine of “Marking Estoppel”

| March 27, 2013

Frolow v. Wilson Sporting Goods Co.

March 15, 2013

Panel: Newman, Clevenger and Moore.  Opinion by Moore.  Concurrences by Clevenger and Newman.


The CAFC specifically rejected the doctrine of “marking estoppel” – which precludes a party that marks its product with a patent number from asserting that the product is not covered by the patent.  However, the CAFC held that patent marking evidence is “circumstantial” evidence of infringement that could be used to establish infringement or to raise an issue of material fact preventing summary judgment of non-infringement.

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