Altair Logic actually sued Asus as well in 2019, after the patent had expired in 2018, alleging that Asus sold products infringing exactly this patent 6,289,434 before then. Asus tried, unsuccessfully, to get it dismissed, so we'll see where it goes later.
But the dismissal judgment is enlightening about what happens when you sit on a patent for 20 years and then start to sue people. The 'marking requirement' referred to is that you stamp products with a US patent number.
> The '434 Patent was valid for 20 years from the filing date, meaning that it expired on February 27, 2018. See 35 U.S.C. ยง 154(a)(2). Because Altair did not bring suit until after the patent had expired, it is entitled to relief only if it can ultimately establish notice of infringement prior to the patent's expiration date. Here, Altair would need to prove either that it satisfied the marking requirement or that neither it nor any of its licensees ever made a product which needed to be marked.
It seems the fact of never having licensed your patent to anyone allows you to avoid having to give notice to infringers. I'm guessing the damages limitations around non-marking are drafted to avoid a situation where someone sees a product, sees it and copies it thinking that because it has no patent number, it hasn't been patented. There appear to be other 'constructive notice' provisions. But it seems a little perverse that you're at an advantage, notice-wise, as a patent troll if you avoid the marking requirements by never attempting to license the patent to anyone in 20 years, and separately nobody takes a second look when searching for patents applicable to their products. Normally both those things point to the patent not being useful or valuable from a licensee perspective.
But the dismissal judgment is enlightening about what happens when you sit on a patent for 20 years and then start to sue people. The 'marking requirement' referred to is that you stamp products with a US patent number.
> The '434 Patent was valid for 20 years from the filing date, meaning that it expired on February 27, 2018. See 35 U.S.C. ยง 154(a)(2). Because Altair did not bring suit until after the patent had expired, it is entitled to relief only if it can ultimately establish notice of infringement prior to the patent's expiration date. Here, Altair would need to prove either that it satisfied the marking requirement or that neither it nor any of its licensees ever made a product which needed to be marked.
It seems the fact of never having licensed your patent to anyone allows you to avoid having to give notice to infringers. I'm guessing the damages limitations around non-marking are drafted to avoid a situation where someone sees a product, sees it and copies it thinking that because it has no patent number, it hasn't been patented. There appear to be other 'constructive notice' provisions. But it seems a little perverse that you're at an advantage, notice-wise, as a patent troll if you avoid the marking requirements by never attempting to license the patent to anyone in 20 years, and separately nobody takes a second look when searching for patents applicable to their products. Normally both those things point to the patent not being useful or valuable from a licensee perspective.
https://casetext.com/case/altair-logix-llc-v-asus-computer-i...
(Morbid detail: the patent was issued on September 11, 2001. Somehow the USPTO worked through that day.)