Constructive Notice Insufficient for Award of Provisional Remedies

The court granted defendant's motion for summary judgment of no provisional remedies because plaintiff provided no actual notice of its patent application. "Pursuant to the plain language of § 154(d), the alleged infringer must have 'actual notice' of the 'published patent application.' . . . [N]one of [plaintiff's] evidence identifies the [patent] application by name. At best, it is evidence of constructive notice which, consistent with the statutory language, the case law, and the legislative history, does not constitute 'actual notice' for purposes of claiming provisional remedies. Moreover, the court rejects any inference that [defendant] had an affirmative duty to search for patent applications published by [plaintiff] because of the parties' litigation history. . . .To find that the patentee has no affirmative duty to provide actual notice to an alleged infringer, but that the alleged infringer has an affirmative duty to search for patent applications, would turn the legislation on its head."

Rosebud LMS, Inc. d/b/a/ Rosebud PLM v. Adobe Systems Incorporated, 1-14-cv-00194 (DED February 5, 2015, Order) (Robinson, J.)