Fed. Circ. Chief Feels 'Bright-Line Rule Coming' for IP Marking

Finnegan represented Volkswagen Group of America before the Federal Circuit as the court examined marking issues and sanctions against VDPP LLC and its attorney. During oral arguments, the panel pressed VDPP’s attorney, William Ramey, on the district court’s findings of “sloppy errors” and misleading communications, as well as VDPP’s attempt to seek past damages without satisfying the Patent Act’s marking requirement across 11 settlement‑based licenses. Chief Judge Kimberly Moore suggested the court may need a bright‑line rule for marking in admissionless settlements, calling the current landscape “a really murky area.”

Arguing for Volkswagen, Finnegan attorney Dan Tucker addressed VDPP’s  sanctions appeal and the marking dispute. One key question was whether Ramey had appealed the sanctions for himself, rather than just VDPP, since his name appears in the body of the notice of appeal but not listed as a party. Dan explained that multiple circuits have case law requiring the name to appear in the caption. When Judge Moore asked about VDPP’s contradicting arguments,  Dan responded, “I also was struggling to understand exactly what VDPP’s argument is.”

The panel appeared skeptical of VDPP’s position, repeatedly pointing to the settlement agreements themselves, each lacking any marking requirement, and questioning how VDPP could claim presuit damages or seek future relief on an already‑expired patent.

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