One advantage a non-practicing entity (NPE) has for collecting damages through patent infringement litigation is that there is no obligation to mark a product prior to collecting damages, whereas the marking statute (35 U.S.C. §287) requires a patent holder to mark the patent number on a commercial embodiment of its invention (i.e., the product or service it uses, sells or offers to sale) in order to collect damages for infringement. However, what happens after an NPE settles a patent infringement case with a defendant that produces a product or service, and that product or service was the accused instrumentality in the patent infringement lawsuit?

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