We need answer. Need solve comprehensively. Need perhaps discuss. Need be careful. We have patent issued Jan 1 2022 expired Dec 31 2025. Sold patented tags throughout. Marking: Jan1-Jun30 2022 60%; beginning July1 2022 97% and remained >=97 through expiration. Constructive notice begins on date substantial compliance begins (>=95) under rule. Does first constructive notice date July 1 2022? Need consider marking at least 95 percent of distributed units constitutes substantial compliance. Jan-Jun at 60 not. Beginning July 1: 97%. "Constructive notice begins on date substantial compliance begins and continues while compliance remains at or above 95 percent." So first constructive notice date July 1 2022. But because patent statute pre-? Need "Before substantial compliance, damages unavailable unless actual notice." Constructive notice starts July 1 2022. Need calculate recoverable damages date based on notice and lookback. Actual notice? Oct email: "We believe Model K uses technology similar to ours... Interested commercial license." Does not identify patent number nor infringing conduct. Under rule insufficient. No actual notice. Feb 1 2023 letter identifies patent, Model K, maps claims, states sales infringed. This is actual notice, received that day. But constructive notice already July 1 2022, so Feb letter doesn't change start if constructive valid. Effect maybe confirms/alternative actual notice. "Once constructive or actual notice begins, damages may be recovered for later infringement through expiration, subject to filing lookback." But need also six-year lookback. Filing June 1, 2026. Lookback excludes damages more than six years before filing: before June 1, 2020 not recoverable. Here earliest infringement March 2022. All within 6 years before filing (June 1, 2020 to June 1, 2026). Patent expired Dec 31 2025. So no lookback limitation. First damages recoverable date? Need define from marking starts July 1 2022. But "damages may be recovered for later infringement" maybe first date after notice? Need patentee can recover infringement occurring after date of marking compliance/constructive notice? "Before substantial compliance, damages unavailable unless actual notice." "Once constructive or actual notice begins, damages may be recovered for later infringement." "Constructive notice begins on date substantial compliance begins." So starting July 1, 2022. Need if infringing units in July and after recoverable, not Jan-Jun. Does "later infringement" include July 1? Yes. But maybe there is nuance: 35 U.S.C. 287 requires marking "substantially all" distributed patented articles; marking must be consistent "substantially all" and damages can only be recovered for infringement occurring after the infringer was notified, unless marking had been done. But compliance beginning July 1, 2022, then damages for infringement after marking compliance? Actually under 287(a), if patentee fails to mark "no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice." Filing of suit constitutes notice. Constructive notice? If "marking" gives notice to public, marking doesn't provide actual notice of infringement to particular infringer? Let's not rely on real law. Under supplied rules, constructive notice begins with marking compliance. So first recoverable damages date July 1, 2022? Need analyze: Does "before substantial compliance, damages unavailable unless accused infringer receives actual notice" mean if constructive notice begins July 1, the first date of damages is July 1. But if actual notice February 1, 2023, could that permit recovery from July 1? Constructive notice from July 1 already does. If marking compliance had been insufficient? Maybe need determine "first recoverable damages date" under notice and lookback. It should be July 1, 2022, if actual notice doesn't matter. Need compute recoverable months: March 2022 through Dec 2025 sold 2,000 units/month = 46 months? Let's count: Mar-Dec 2022 = 10 months. Jan-Dec 2023 =12 (22). Jan-Dec 2024 =12 (34). Jan-Dec 2025 =12 (46). Yes 46 total. From July 1 2022 to Dec 31 2025: July-Dec 2022 = 6 months plus Jan-Dec 2023 12 =18, 2024=12 ->30, 2025=12 ->42. Wait March-June 2022 = 4 months unrecoverable. 46 - 4 = 42. Recoverable months 42. Units 2,000*42=84,000. Royalty $18/unit => $1,512,000. Need check if July 2022 through Dec 2025 includes "calendar months" each listed month contains 2,000 infringing units. Starting July 1, 2022. Yes 42 months. If starting July 1 means July entire month 2,000 units recoverable. If start date exact July 1 and monthly units distributed evenly? Rule? They say each listed month contains 2,000 infringing units, no need allocate day. So yes. Damages if Feb 1, 2023 incorrectly used start date: from Feb 2023 through Dec 2025. Months: Feb-Dec 2023 =11 months; 2024=12 ->23; 2025=12 ->35. Units 70,000. Royalty $1,260,000. Need also if "Feb 1, 2023 incorrectly used as start date" means actual notice date, no July 2022-Jun 2023? Wait Feb 1 2023 incorrectly used as start date (rather than constructive July 1 2022). Recoverable from Feb 1 2023 through Dec 2025 = 35 months (if Feb included) = $1,260,000. Difference = $252,000? Let's compute 42-35 =7 months; *2000*18 = 252,000. Which months? Recoverable under correct but not incorrect: July 1, 2022 through Jan 31, 2023 = 7 calendar months? July-Dec 2022 =6 plus Jan 2023 =1. Yes 7 months. Also "unrecoverable March through June 2022 period": 4 months *2000*18 = 144,000. Total potential lost from wrong start? Let's parse question: "The value lost from that incorrect start date and the unrecoverable March through June 2022 period." Need maybe "value lost from incorrect start date" is $252,000 (due to 7 months if using Feb instead of July) and "unrecoverable March through June 2022 period" = $144,000. They might ask total? It says "and the unrecoverable..." Need calculate both. Could also "damages amount that would result if Feb 1, 2023 incorrectly used as start date." Need compare with total royalty 1,512,000; difference 252,000. The unrecoverable March-June 2022 = 4 months=8,000 units*18=144,000. The value lost from incorrect start date (relative to July 1, 2022) = 252,000. If comparing to maximum from first infringement March 1 2022 maybe difference? Let's think. Question text: "Calculate: ... first recoverable damages date; number of recoverable calendar months and units through expiration; total royalty damages; damages amount if Feb 1, 2023 incorrectly used as start date; value lost from that incorrect start date and the unrecoverable March through June 2022 period." So they likely want: - Total recoverable damages = 1,512,000. - Incorrect Feb 1 start = 1,260,000, losing 252,000. - Unrecoverable March-June 2022 = 144,000 (even correct start can't recover those). Maybe "value lost from that incorrect start date" includes loss from July 2022 through Jan 2023 = $252,000, plus? "and the unrecoverable March through June 2022 period" yes separate. Need articulate marking Jan-June 2022 no constructive notice: 60% <95. First constructive notice July 1, 2022. Since substantial compliance starts July 1, not June 30? Need no partial-month proration? They ask first constructive-notice date "Beginning July 1, 2022: 97 percent"; Jan through June 30 2022. So first date when marking compliance begins is July 1, 2022. If marking records by month, 60% through June 30; July 1 changed. Use calendar month units; July counts full. Need "constructive notice begins on date substantial compliance begins and continues while compliance remains at or above 95 percent." From July 1 through expiration. Constructive notice doesn't require actual notice. "Patentee must give constructive notice by marking substantially all patented articles. Before substantial compliance, damages unavailable unless actual notice." Actual notice exception only before substantial compliance? It says "Before substantial compliance, damages are unavailable unless infringer receives actual notice." Since Oct email maybe doesn't qualify. Need perhaps "constructive notice doesn't require DeltaMark actually saw tags; it is statutory/constructive." Need maybe discuss "The email is not actual notice because: - no patent number - no Model K? It mentions Model K maybe? It says "Model K uses technology similar to ours" identifies product? But no patent and no charge infringement. A licensing invitation insufficient. Similar technology is expressly insufficient. Thus no actual notice on Oct 15. Feb 1 letter effect: - Satisfies actual notice: affirmative communication, identifies patent, identifies Model K, maps claims (identifying accused product/conduct), and states DeltaMark's sales infringed (charging infringement). Received Feb 1. - Because constructive notice already in effect, the letter does not move damages start earlier/later. It may be alternative notice; if marking compliance were later invalid/ challenged, actual notice supports damages from Feb 1. But under facts, marking stayed compliant, so Feb 1 is not start. Need maybe mention "accused infringer bears burden of proving any earlier unmarked patented sales after patentee establishes compliant program" but no evidence of noncompliance after July; compliance remains at or above. Thus July 1. Six-year lookback: - Suit filed June 1, 2026. Six-year lookback period starts June 1, 2020. - All alleged infringement occurred Mar 2022 through Dec 2025, which is after June 1, 2020; no sales before lookback. - The notice-based start (July 1, 2022) is later than lookback, so lookback no restriction. "Lookback does not shorten later notice-based start date." Need perhaps if infringement continued after Dec 31? Patent expired; no damages after expiration. Expiration Dec 31, 2025. Need include patent expiration. Need calculate months count carefully: Total infringement months March 2022-Dec 2025: - 2022 Mar-Dec = 10 months - 2023 =12 - 2024 =12 - 2025 =12 Total = 46 months, 92,000 units, $1,656,000 if no marking/notice restrictions. Pre-constructive unmarked period: Jan? Wait DeltaMark sold from March 2022. Jan-Feb no DeltaMark sales because DeltaMark sales start March 2022. Need "unrecoverable March through June 2022 period" = Mar-Apr-May-Jun = 4 months. But note Jan-Feb patent issued and no DeltaMark sales. Constructive notice starts July 1; before that from March through June 2022, no constructive notice and no actual notice. If DeltaMark sold in March 2022 and later actual notice on Feb 2023, can patent recover for post-notice continued infringement? Rule 1 says before substantial compliance damages unavailable unless actual notice; actual notice came Feb 2023, but under real law if marking absent, damages only after actual notice, not retroactive. So pre-Feb 2023 no. However constructive notice starting July 1 gives damages from July 1. So March-June unrecoverable. Good. Need maybe address if actual notice Feb 1 allows recovery of infringement "after" Feb 1 only; constructive notice from July 1 already. The "first recoverable damages date" under supplied marking and actual-notice rules: Since constructive notice from Jul 1, actual notice Feb 1 later. Damages recoverable for "later infringement" from July 1 through expiration, subject lookback and expiration. But is July 1 itself "later infringement" than constructive notice begins? yes. Potential issue: Constructive notice by marking requires "marking substantially all patented articles" and "patentee that makes or sells a patented article must give constructive notice by marking substantially all patented articles." At July 1 compliance is 97%. Rule 2: at least 95 percent constitutes substantial compliance. A lower percentage does not. So 97 qualifies. Jan-June 60 fails, no constructive notice. "Substantially all" perhaps means all distributed patented units; if "marking at least 95 percent" substantial compliance but "constructive notice begins on date substantial compliance begins". Need no need 100%. Need maybe account for patent issued Jan 1 2022; "throughout period" sold. Marking had 60% before July. Since no DeltaMark sales in Jan/Feb, if patentee had actual notice in Oct? no. For "damages unavailable unless actual notice" before substantial compliance, does this apply if patentee did not mark "substantially all" but DeltaMark didn't rely? Under rules, yes. Need think whether "constructive notice" can start while "patentee that makes or sells patented article" marking "substantially all" but "marking at least 95 percent of distributed patented units" compliance. It says "Constructive notice begins on date substantial compliance begins and continues while compliance remains at or above 95 percent." If compliance is 97 from July 1 "through expiration"; okay. Need maybe decide "first constructive-notice date" if the facts say "Beginning July 1, 2022: 97% bore the patent number." Is "beginning July 1" perhaps means all units distributed on/after July 1 have 97% patent number. Constructive notice could begin July 1. If patent number appeared on products at time of sale; notice to public from first day. Need perhaps "actual notice" if email not enough but if no marking? It doesn't identify patent or infringement, despite "Model K uses technology similar to ours" and license invitation. Under actual notice rule, general awareness/licensing invitation/similar tech insufficient. It might be enough to identify accused product? It identifies Model K, but not patent and not infringement. Since actual notice requires identifying patent, product/conduct, and charging infringement; it lacks latter two? It identifies product but not patent nor charge. So no. Need maybe "Feb 1 letter effect" if actual notice date is Feb 1 but because of marking compliance, actual notice is not needed and start remains July 1. But if for some reason marking compliance challenged, the letter would provide actual notice and permit damages from Feb 1,2023 onwards. It would not validate earlier period. Need state. Need perhaps address "filing lookback": Suit filed June 1, 2026. Six years before June 1, 2026 = June 1, 2020. Patent issued Jan 1 2022; all DeltaMark sales are after Jan 1 2022 and before expiration Dec 31 2025; all within lookback. So no pre-lookback bar. But lookback doesn't expand recovery before notice; thus first recoverable damages still July 1, 2022, not March 2022. Need maybe total royalty "through patent expiration" includes all months after constructive notice start. If a sale occurs after expiration? None. If DeltaMark sold "from March 2022 through December 2025" every calendar month, and patent expires Dec 31, 2025. It sold in December 2025; those are within expiration. Good. Let's compute detailed numbers: - Recoverable months: -- Jul-Dec 2022: 6 -- Jan-Dec 2023: 12 -- Jan-Dec 2024: 12 -- Jan-Dec 2025: 12 Total 42. Units = 42 * 2,000 = 84,000. Royalty = 84,000 * $18 = $1,512,000. Let's multiply: 84,000*10=840,000; *8=672,000; sum 1,512,000. Good. If Feb 1 2023 incorrectly used: -- Feb-Dec 2023: 11 -- Jan-Dec 2024:12 -- Jan-Dec 2025:12 total 35. Units=70,000. Royalty=1,260,000. Check: 2,000*18=36,000/month. 36,000*35=1,260,000. Correct: 36,000*42 = 1,512,000. Difference 36,000*7 =252,000. Unrecoverable Mar-Jun 2022: -- months: March, April, May, June 2022 = 4. Units=8,000. Royalty=144,000. Potential "lost value from incorrect start date" not same as "unrecoverable March-June." If someone uses Feb 1 as start instead of July 1, they recover from Feb 2023, leaving out Jul 2022-Jan 2023. That's 7 months = $252,000. But wait if actual notice on Feb 1, 2023, under actual notice rule damages "for later infringement" from Feb 1. But because constructive notice date July 1, using actual notice is later not earlier. "Incorrectly used as start" means instead of July 1, 2022, recover from Feb 1, 2023. Thus lost value from that incorrect start date = 1,512,000-1,260,000 = 252,000. But there is also "unrecoverable March through June 2022 period" because before substantial compliance and no actual notice. If someone might think first recoverable date is March 1 2022, they would recover 46 months = 1,656,000. Difference from correct 144,000. Wait "value lost from that incorrect start date and the unrecoverable March through June 2022 period" maybe they ask "the damages amount that would result if Feb 1, 2023 incorrectly used as start date." Then "The value lost from that incorrect start date" maybe $252k, and "and the unrecoverable March through June 2022 period" maybe $144k. We can present both separately and maybe combined if they intend total value lost relative to all infringement? Let's parse exact user text: "Calculate: * Whether the January through June 2022 marking rate gave constructive notice. * The first constructive-notice date. * Whether the October 15 email gave actual notice. * The effect of the February 1 letter. * The six-year filing lookback. * The first recoverable damages date. * The number of recoverable calendar months and units through expiration. * Total royalty damages. * The damages amount that would result if February 1, 2023 were incorrectly used as the start date. * The value lost from that incorrect start date and the unrecoverable March through June 2022 period." Maybe they want "value lost from that incorrect start date" (if you use Feb 1 as start date, you lose from July 1 through Jan 2023) AND "the unrecoverable March through June 2022 period" (additional amount not recoverable even with correct start). Could combine: "Compared to the maximum if the entire March 2022-December 2025 period were recoverable, the correct answer excludes 11 months? Let's calculate: Max from Mar 2022-Dec 2025 =46 months*36k = $1,656,000. Correct answer 42 months = $1,512,000. Excluded due to pre-marking/no notice March-June: 4 months = $144,000. If incorrect Feb 2023 start, recover 35 months = $1,260,000. That loses 11 months relative to max? Feb 2023-Dec 2025 excludes Mar 2022-Jan 2023 =11 months (Mar-Jun 2022 4 + Jul 2022-Jan 2023 7) = 44? 4+7=11 months, units 22,000, royalty $396,000. Is that what "value lost from that incorrect start date and the unrecoverable March through June 2022 period" combined? Actually if Feb 1 incorrectly used, not only "value lost from that incorrect start date" $252k but also the original March-June period $144k = $396k. That equals the difference from maximum $1,656,000. Maybe the "and" means calculate both values: lost from wrong start (relative to correct) and unrecoverable March-June. We can state combined to avoid ambiguity. Need maybe include a table: Category | Months | Units | Royalty All sales 3/22-12/25 | 46 | 92,000 | 1,656,000 Not recoverable 3/22-6/22 | (4) | (8,000) | (144,000) Recoverable 7/1/22-12/31/25 | 42 | 84,000 | 1,512,000 If Feb 1 2023 start |35|70,000|1,260,000 Difference from correct (7/22-1/23) |7|14,000|252,000 Not recoverable pre-notice 3/22-6/22|4|8,000|144,000 Need perhaps "Mar through June 2022 period" is fully unrecoverable if no actual notice before or during, but wait what about "October 15 email" after June and before Feb? If the email were actual notice (it isn't), it could not make March-June recoverable because actual notice must be before infringement? Rule 4: "Actual notice requires affirmative communication identifying patent, identifying accused product/conduct, and charging infringement." "Once constructive or actual notice begins, damages may be recovered for later infringement..." So actual notice only after notice; email didn't qualify. If actual notice had been received on Feb 1, 2023, could it recover damages for continuing infringement after Feb only not earlier. So March-June unrecoverable. Even if actual notice in Oct 15? It isn't. Need mention. Need perhaps note "No damages from Jan 1, 2022 through June 30, 2022 because no DeltaMark sales in Jan/Feb; from March-June sales not recoverable due to no notice." Actually if DeltaMark sales begin March 2022 and patent issued Jan 1, no damages before March. "Before substantial compliance, damages are unavailable unless actual notice." DeltaMark had no actual notice until maybe Feb 1, 2023. So no pre-July recovery. March-June 2022 "unrecoverable." Could also mention if suit filed after patent expiration? Patent expired; damages for infringement while patent in force through expiration. Good. Need maybe consider "subject to filing lookback" if filing June 1, 2026, but patent expired Dec 31, 2025. Under U.S. law, no damages for infringement after expiration (except for pre-expiration conduct? A sale after expiration generally not infringement; making/using after expiration no). They stipulated Model K units in each month through Dec 2025 infringed and proper royalty. Good. Need perhaps address marking "distributed patented units" maybe by month: - Jan 1 through June 30, 2022: 60% of distributed units bore patent number; below 95, so not substantial. - July 1 2022 onward: 97%, at/above 95, substantial. Compliance remained 97+ through expiration. - Constructive notice date = July 1 2022. Not necessarily "through expiration"; marking after expiration? Doesn't matter. Need perhaps "constructive notice continues while compliance remains at or above 95 percent"; there is no fact of any later drop. It remains at or above. Need perhaps "actual notice email": - It is not affirmative enough. It states belief "Model K uses technology similar to ours" and wants license discussion. - Does not identify a patent number; mapping; says similar technology, not infringement; invitation to license is insufficient. It may put DeltaMark on inquiry notice, but inquiry/constructive notice from marking already; actual notice no. Under the rule, "general awareness, licensing invitation, statement similar tech insufficient" exactly. Need perhaps mention "Feb 1 letter" satisfies all elements: 1. Affirmative communication (letter sent/received). 2. Identifies patent. 3. Identifies accused product Model K. 4. Maps claims to Model K and states sales infringed; charges infringement. Therefore actual notice from Feb 1, 2023. But due to earlier constructive notice, it's a backstop. It may also satisfy actual notice if marking compliance later failed; however no facts indicate failure. It is not necessary for the correct start. Need maybe "six-year lookback": - "filing lookback": Filing on June 1, 2026; any infringement before June 1, 2020 is beyond. The earliest sale is March 2022, so none is time-barred. - If there were sales from Jan 2020? None. - "lookback does not shorten later notice-based start date" means no recovery for pre-July 2022 based solely on being within 6 years. The lookback is outer/limiting only; notice controls start. Potential nuance: Patent issued Jan 1, 2022; all infringement after issue, but if patent expired Dec 31, 2025 and suit filed June 1, 2026; six-year lookback from filing includes Dec 2025 within 6 months before filing. Good. Need perhaps if "damages for infringement more than six years before filing" means if filing June 1, 2026, lookback starts June 1, 2020; since patent infringement began March 2022, all within lookback. "No damages for infringement more than six years before filing" could include only "accrual" before June 1, 2020; no sales. Fine. Need maybe mention "Every Model K unit in recoverable period infringed and $18/unit proper royalty" so no apportionment issues. Use all units. Let's think if there is any hidden issue: "The Marking Date and the Damages Window" maybe perhaps from patent marking statute: Under 35 U.S.C. §287(a), a patentee who fails to mark cannot recover damages for infringement "unless the infringer was actually notified" and "in that event damages may be recovered only for infringement occurring after such notice." Marking doesn't "constructively" notify until "substantially all" and perhaps can provide damages from date marking begins. But if patentee "makes or sells a patented article" and marks substantially all starting July 1, then constructive notice begins. But maybe because marking compliance was only 97%, not "substantially all" in a legal sense? The assignment says 95% qualifies, so yes. Could "first constructive-notice date" be June 30, 2022? Because on July 1, 97% of units bore the patent number. "Beginning July 1" maybe units distributed July 1 onward. No recovery for July units? It says calendar months listed contain 2,000 infringing units; "first recoverable damages date" as July 1. Include July. Good. But perhaps if marking begins on July 1 and a unit is sold on July 1, can damages be recovered for that sale? Constructive notice begins "on date substantial compliance begins." If sale occurs same day, yes? Under real law, marking before sale gives notice? The facts not day-specific. We can say "July 2022 and all later months." No need split day because month units. Need maybe if "January 1 through June 30, 2022: 60 percent of distributed units bore the patent number." But DeltaMark sold from March 2022. In Jan/Feb, patentee's marking compliance 60%; actual notice? no. If DeltaMark's first sale in March 2022, if patentee marked 60% not enough. So no constructive notice. But if DeltaMark had actual notice? No until? Feb 1 2023 email. The October email maybe no. So March-June sales not recoverable. What about July 1, 2022 if "constructive notice" from marking of "substantially all patented articles" but DeltaMark didn't know specific patent? Constructive notice is from marking; it doesn't require actual awareness. The rule says so. Good. Need perhaps "General awareness, licensing invitation, or statement that products use similar technology is insufficient": In email: "We believe Model K uses technology similar to ours" exactly "similar technology" statement; no "infringement"; no patent identifier. Even though "Model K" identified, the email is insufficient. It may have created inquiry notice; not actual. Need perhaps "Effect of February 1 letter" if received that day. Actual notice satisfies requirement; but because "once constructive or actual notice begins, damages may be recovered for later infringement" and constructive began earlier, start date does not shift to Feb 1. Need be precise: The letter could not make damages recoverable for any pre-February infringement not already covered, but because July 1 already covers from July 1, it covers. If the letter is "actual notice", it might make the "Before substantial compliance, damages unavailable unless actual notice" exception obsolete? We should state "It provides an independent actual-notice basis from Feb 1, 2023, but it is not the first notice date." Need maybe "Constructive notice" date and "actual notice" date interplay: - Rule 1: Before substantial compliance, damages unavailable unless actual notice. - Rule 5: Once constructive or actual notice begins, damages may be recovered for later infringement through expiration, subject to lookback. - Here, actual notice after constructive; so first recoverable damage date is July 1, 2022. - If the marking compliance had never occurred, actual notice date Feb 1 2023 would be the first date and only Feb-Dec 2025? Wait Dec 2025 = 35 months. But if marking never occurred and only actual notice Feb 1, 2023, damages from Feb 2023 through Dec 2025 = 35 months. But because constructive notice exists, actual notice is irrelevant. Need perhaps table. Potential issue: "the patent owner bears burden of proving marking compliance or actual notice. The accused infringer bears burden of proving any earlier unmarked patented sales after patentee establishes a compliant program." Does the burden matter? The facts: compliance from July 2022; maybe accused infringer might try to show some unmarked units in July and after. But "Compliance remained at 97%" satisfies. If a company marks 97%, still 3% unmarked. Rule says substantial compliance at 95. It doesn't require proof of each unit. Accused could show earlier unmarked after compliant program but "compliance remained 97%" no evidence. So no issue. Need perhaps mention "the 3% unmarked units after July do not defeat constructive notice because at least 95% = substantial compliance." Good to preempt. Potential issue: "marking records show beginning July 1, 2022: 97 percent bore the patent number. Compliance remained at 97 percent or higher through expiration." Did constructive notice require marking "substantially all patented articles" "distributed patented units." The patentee's own marking rate includes all patented units; if 97% is not "substantially all" literally? The assignment defines. Yes. Need maybe "Through patent expiration" maybe Dec 31, 2025. "Recoverable calendar months and units through expiration" perhaps if constructive notice starts July 1, 2022, from July 2022 through December 2025 inclusive = 3.5 years =42 months. Need count: 2022: 6 months (Jul-Dec) 2023: 12 2024: 12 2025: 12 42. Units 84,000. If the phrase "through expiration" includes "December 2025"; if patent expired Dec 31, 2025 and DeltaMark sold 2,000 units in December 2025, all before expiration? Assume throughout Dec includes maybe before expiration. They instruct each listed month contains 2,000; use calendar months. Good. Need maybe if patent expired at end of Dec 31, any sale on Dec 31 infringes? Usually infringement if within term; yes. Need maybe "Jan 2026? none due to expiration; no sales after Dec 2025 per facts." Potential hidden "marking date" maybe if patent issued Jan 1 2022; patentee's marking at 60% Jan-Jun. At 60%, not substantial; first constructive notice could be July 1 2022. However the patentee "sold patented tracking tag throughout that period" but marking records show lower. If actual notice occurred Feb 1 2023, but "the patent owner bears burden of proving marking compliance or actual notice" — it proves marking after July; actual notice later. Good. Need maybe "damages window" with "six-year filing lookback": If suit filed June 1, 2026, and patent expired Dec 31, 2025, there is no issue with "more than six years before filing." But what about if damages recoverable from July 1, 2022 through Dec 31, 2025 and suit filed June 1, 2026. All this period within six years of filing? July 1, 2022 is 3 years 11 months before June 1, 2026, yes. Wait 6 years before June 1, 2026 is June 1, 2020; all after. So no reduction. Good. Potential issue: "Actual notice requires affirmative communication identifying patent, identifying accused product or conduct, and charging infringement." The Feb letter identified patent, Model K, mapped claims, and stated sales infringed. But it's sent by NovaTag and received by DeltaMark. "Received it that day." Good. Does it "charging infringement" if it maps claims and says sales infringed; yes. The Oct email "Model K uses technology similar to ours" is a statement similar technology; "We are interested in discussing commercial license" is licensing invitation. It does not identify patent; no infringement charge. So no. Need perhaps "Constructive notice from marking at 97% is from July 1 2022, and after that even if no actual notice, damages recoverable." Need use "constructive notice" rather than "notice" in dates. Let's maybe structure answer: 1. Marking/constructive notice: - Pre-July: 60% -> no. - July onward: 97% -> yes. Date: July 1, 2022. 2. Actual notice: - Oct 15 email: no. - Feb 1 letter: yes, but not earlier; because constructive notice already began July 1, first notice-based start remains July 1. The letter has no effect on advancing start; backstop. 3. Filing lookback: - Suit date June 1, 2026; six-year cutoff June 1, 2020. - All Model K sales between March 2022 and Dec 2025 are within lookback; no time-bar based reduction. 4. First recoverable damages date: - July 1, 2022 (not March 1, 2022; not Feb 1, 2023). Explanation: before July no constructive/actual notice; after July constructive notice. - Pre-July unmarked sales from Mar-Jun 2022 are irrecoverable. 5. Damages calculation: - Recoverable months 42; units 84,000; royalty $1,512,000. - Show perhaps monthly royalty = $36,000. - If Feb 1 2023 start: 35 months; 70,000 units; $1,260,000. - Difference from correct: $252,000 (7 months July 2022-Jan 2023). - Unrecoverable March-June 2022: 4 months, 8,000 units, $144,000. - Maybe combine: incorrect Feb start compared with all possible pre-expiration sales loses $396,000 ($252,000 + $144,000). Need maybe be careful: If Feb 1, 2023 used as start, should Feb 2023 full month be recoverable? Under actual notice, "once actual notice begins, damages may be recovered for later infringement." If notice date is Feb 1, a sale on Feb 1 or later is after notice. If all units in each month, and sales throughout, 2,000 units in Feb included. They ask "calendar months" so yes. If actual notice is Feb 1, the month of February is included entirely; no day-apportionment. They gave use calendar months. Similarly if constructive starts July 1, include July. Good. Potential issue: if "first recoverable damages date" is July 1, but "recoverable calendar months" includes July 2022 even though on July 1 constructive notice begins and DeltaMark units "each calendar month contains 2,000 infringing units" may have some sales before July 1? If no day allocation, they instruct "Use calendar months for the supplied unit and royalty calculation" maybe use entire month. Could one argue if notice begins July 1, but "calendar months" each contains 2,000 units and if sales evenly distributed, only units sold on/after July 1 count? They did not provide daily distribution and asked use calendar months; likely count months. Maybe they could intend "first recoverable damages date" as July 1, 2022, and "number of recoverable calendar months" as months beginning after date: July 2022 through Dec 2025. Need not prorate. We can say "Under the stipulated calendar-month convention, the July 2022 month is included." Good. Potential issue: "Constructive notice begins on date substantial compliance begins" if "first constructive notice date" = July 1; but "damages may be recovered for later infringement" maybe later than July 1, so if the month of July contains sales both before/after July 1 but not specified, using calendar month as unit maybe includes all July. We can note if dates matter, July 1 start and monthly convention; no allocation. Let's perhaps include calculations in detail: Monthly infringing units 2,000; monthly royalty $18 × 2,000 = $36,000/month. Correct: - Start: July 1, 2022 - End: Dec 31, 2025 - Full months: (Dec 2025 - Jul 2022) = 42? Let's count: from July 2022 through Dec 2025 inclusive = (2025-2022)*12 + (12-7+1) = 36 +6 =42. Yes. - Units = 42 × 2,000 =84,000 - Damages =84,000 × 18 =1,512,000. Incorrect Feb 1 2023: - Start Feb 2023; end Dec 2025 inclusive = (2025-2023)*12 + (12-2+1) =24+11=35. (alternatively 2023 Feb-Dec 11; 2024 12; 2025 12 =35). Units =70,000; damages=1,260,000. Difference = 1,512,000 -1,260,000 =252,000 or 7 months. Unrecoverable Mar-Jun 2022: - months = 4; units=8,000; damages=144,000. Maybe "value lost from incorrect start date" = $252,000. What about if "incorrect start date" Feb 1 also loses "unrecoverable March through June 2022" relative to total; but that would have been unrecoverable under correct start, so not "from incorrect start date." We'll separate. Need perhaps "The total royalty damages" maybe can represent "award" not including interest/enhanced. Yes. Potential hidden issue: "The patent owner bears burden of proving marking compliance or actual notice. The accused infringer bears burden of proving any earlier unmarked patented sales after the patentee establishes a compliant program." Could be relevant to "constructive notice begins on date substantial compliance begins" if patentee's marking records prove July onward but not every unit? The facts say yes. No issue. Potential hidden issue: "marking at least 95% constitutes substantial compliance. A lower percentage does not." What if Jan-June 60% plus July "97%" maybe average from Jan 1 through July 1 = (6*60 + 6*97? no) Actually Jan-Jun only; if averaging over all prior months, compliance after July maybe (6*60 + 6*97)/12=78.5, below. But rule says "date substantial compliance begins" and records show beginning July 1 97. Does substantial compliance require "marking substantially all patented articles" over time? It says "marking at least 95 percent of distributed patented units" and "constructive notice begins on date substantial compliance begins and continues while compliance remains at or above 95 percent." It doesn't say lookback average. So from July 1, 97 sufficient even if historical rate lower. Need maybe explicitly state "The earlier 60% does not disqualify later compliance; it only prevents constructive notice before July 1." Good. Potential nuance: "before substantial compliance, damages unavailable unless actual notice." Once substantial compliance begins, can damages be recovered for infringement that occurred before but continued after? For continuing infringement, no damages for pre-notice period, only post-notice. We use post-July. Good. Potential hidden issue: "Actual notice received on Feb 1, 2023" but under U.S. law where no marking, the "notice" must be of infringement and "continued to infringe thereafter"; damages only after notice. If there is an ongoing sale in Feb 2023, can include Feb 2023 whole month if infringement after notice. But marking already. Fine. Let's consider if "actual notice" from Feb letter could permit recovery for July 2022-Jan 2023 even if marking compliance later? No, actual notice only after notice. Constructive notice from July allows July. So okay. Potential hidden issue: "Once constructive or actual notice begins, damages may be recovered for later infringement through patent expiration, subject to the filing lookback." This might imply if notice begins July 1, 2022, damages can be recovered for "later infringement" from July 1 onward but only if there is "later infringement" after notice; DeltaMark sold every month. Good. Need maybe phrase "constructive notice from marking" means no proof DeltaMark saw the patent marking; "constructive" is sufficient. The email and letter actual notice are irrelevant after marking except to support. Let's perhaps produce final answer with legal analysis in bullet sections. Need ensure not overdo; desired oververbosity 5. But user asks analyze and calculate; moderate detail. We can include table and concise explanations. Let's think if there is any alternative "first recoverable damages date" under 35 USC 287(a) real law: If patentee failed to mark before July, actual notice on Feb 1, 2023, damages recoverable only after Feb 1, 2023. But because patentee marked after July, some courts say marking compliance starts a new "constructive notice" but does marking after failure cure the pre-marking period? Under supplied rule, yes start July 1. But if real law and "before substantial compliance, damages unavailable unless actual notice"—does later compliance establish constructive notice and permit damages from compliance date or must actual notice be given because earlier failure? The rule says constructive notice begins on date substantial compliance begins. So yes. Need maybe "January-June 2022 constructive notice" if patentee "sold a patented tracking tag throughout that period" and "60% of distributed units bore the patent number" but "patent issued Jan 1 2022" — before issue no marking? No. 60% fails. Need maybe "first constructive-notice date" if "marking at least 95% of distributed patented units" from July 1 with 97%; but if marking records are month-based, first full month July; but actual first date "July 1." If they ask date, not month. "July 1, 2022." Need maybe "October email" if it "identifies Model K" but no patent; no charge. It is a "licensing invitation" and "similar technology" statement, both specifically insufficient. It might be "general awareness" not actual notice. Need maybe "Feb 1 letter" if it "maps claims" maybe "specific." It charges infringement and identifies patent/product. It is actual notice; if used alone, damages start Feb 1, 2023. Need maybe "filing lookback" if "filing June 1, 2026" but patent expired Dec 31, 2025; all damages within six years. If an infringement occurred in Dec 2025, suit filed less than 6 months later, okay. The lookback period is from June 1, 2020 forward, so all infringement after Jan 1, 2022. Let's maybe include "Because the June 1, 2020 lookback date is before both the patent issuance and the first accused sale, no sale is excluded by the lookback." Is that accurate? First accused sale March 2022; patent issuance Jan 1 2022. Yes. But if patent issues Jan 1 and DeltaMark first sale in March; no sale before issuance. So no sale is older than 6 years. Good. Potential issue: "filing lookback" if patent infringement action can recover no damages for infringement "more than six years before filing"; if patent expired, maybe laches? No. Let's perhaps discuss "burden of proof" in answer: - NovaTag has shown compliant marking July 1 onward (records 97%). DeltaMark would have burden to show earlier unmarked units after that, but facts show compliance remained at 97% or higher; therefore no loss of constructive notice. Need maybe not necessary, but user included law; maybe mention. Let's think if "units and royalty calculation" use "calendar months for supplied unit and royalty calculation." We should present monthly royalty 36,000. Table: Period | Months | Units | Royalty All Model K sales 3/22-12/25 |46|92,000|1,656,000 Correctly recoverable 7/22-12/25 |42|84,000|1,512,000 Mar-Jun 2022 unrecoverable |4|8,000|144,000 If incorrectly Feb 2023 start |35|70,000|1,260,000 Additional lost due to Feb 2023 (7/22-1/23) |7|14,000|252,000 Maybe table "additional lost due to Feb 2023" and "Mar-Jun unrecoverable" sum 396,000; if compare to max all sales (1,656,000 -1,260,000 =396,000). Good. Need perhaps "The first recoverable damages date" vs "recoverable calendar months" if start date July 1 but first recoverable month July 2022. Could say "The first recoverable damages date is July 1, 2022. Under the calendar-month convention, damages begin with the entire July 2022 month." But if one wants exact date, "July 1" and if sale occurs after. We can mention "assuming the stipulated 2,000-unit months are treated as full counted months; no day-proration is specified." Let's examine if there might be a subtle issue: "Once constructive or actual notice begins, damages may be recovered for later infringement through patent expiration, subject to the filing lookback." Could a later actual notice (Feb 1, 2023) create a new "notice" that continues; but if constructive notice starts July 1, "damages may be recovered for later infringement" through expiration. But what about damages from July 1 to actual notice if DeltaMark did not know? Constructive notice is deemed; okay. Potential issue: If patentee's marking compliance is 97%, "substantially all" but not "all". Suppose 3% unmarked units were distributed each month. The rule says at least 95 qualifies. But "constructive notice begins on date substantial compliance begins" maybe the exact date of July 1, even though some units distributed on July 1 unmarked. We don't know distribution within July; but 97% sufficient. Good. Need maybe "accused infringer bears burden of proving earlier unmarked patented sales after patentee establishes compliant program." There are earlier unmarked sales from Jan-Jun 2022; but those are before substantial compliance. Actually after July, DeltaMark could point to unmarked units after July if any; the record says 97% had markings, 3% unmarked. Does the 3% unmarked sales after July maybe "earlier unmarked patented sales" in each month; but 95% safe. "Earlier unmarked patented sales after patentee establishes a compliant program" perhaps means if patentee establishes compliance, infringer must prove specific unmarked sales occurred to rebut with actual notice? Hmm, the rule says "The accused infringer bears the burden of proving any earlier unmarked patented sales after the patentee establishes a compliant program." If there is 3% unmarked after July, could those be proven? But "compliance remained at 97%" already includes 3% unmarked. Under the stipulated substantial compliance threshold, unmarked units below 5% don't defeat compliance. So "earlier unmarked patented sales" maybe relevant if they occurred before actual notice? Wait actual notice to infringer may start damages? Constructive marking is about all "distributed patented articles" not "patented articles sold to accused infringer." Suppose after compliance, some unmarked units sold to third parties; still 97% compliance. Good. No effect. Need perhaps "marking at 97% means 3% unmarked; the defendant might try to show those unmarked sales; but the rule explicitly deems >=95 substantial compliance, so 3% unmarked doesn't matter." Potential issue: "NovaTag sold patented tracking tag throughout that period." If it sold unmarked units before July at 60%, that's 40% unmarked. For damages for its own products? No, marking affects all claims. Fine. Potential issue: "The email did not identify a patent number and did not state that DeltaMark infringed." The rule says actual notice requires identifying patent, accused product/conduct, and charging infringement. The email did identify "Model K" maybe product, but lacked patent and charge. So no. Potential issue: "February 1 letter identifying patent, identifying Model K, mapping two claims to Model K, and stating DeltaMark's sales infringed." Actual notice. Does "identifying accused product or conduct" maybe mapping claims to Model K and sales infringed; yes. "Received that day." So actual notice date Feb 1. But since "constructive notice began July 1, 2022, the Feb actual notice does not set the damages start." It might matter if no marking after actual notice? But compliance remains. Potential issue: "Six-year filing lookback" if case filed June 1, 2026, but patent expired Dec 31, 2025; there is no "continued infringement" after expiration. "through patent expiration" maybe "damages window" includes up to Dec 31, 2025, but if infringement continued post-expiration? no. Need mention "no damages after expiration." Let's maybe include "recoverable months through expiration" maybe if patent expires Dec 31, 2025 and December 2025 units sold before expiration; yes count. Potential issue: If "patent issued January 1, 2022" and DeltaMark "sold 2,000 Model K units in every calendar month from March 2022 through December 2025." Were March 2022 sales "infringement" while the patent might not be marked? Yes, patent in force, product infringes. Let's perhaps final answer: ``` Constructive notice: Jan-Jun 2022: 60% <95%, no. Jul 1 2022 onward: 97% >=95%, yes. First constructive notice date = July 1, 2022. Actual notice: Oct 15, 2022 email: no; similar technology/licensing discussion/ no patent/ no infringement charge. Feb 1, 2023 letter: yes actual notice, but later than constructive notice; it is a backstop, not start. Lookback: Suit Jun1 2026; six-year bar reaches June1 2020; all sales (Mar 2022-Dec 2025) within period, so no lookback reduction. Damages: Monthly sales=2,000; monthly royalty=$36,000. Recoverable: Jul 2022-Dec 2025 =42 months =84,000 units = $1,512,000. First recoverable date: Jul1, 2022. Unrecoverable Mar-Jun 2022: 4 months =8,000 units = $144,000. If Feb1 2023 start: Feb2023-Dec2025 =35 months=70,000 units = $1,260,000. Lost from incorrect start = $252,000 (7 months Jul2022-Jan2023). ``` Need perhaps "value lost from incorrect start date" maybe "lost if using Feb 1" not "damages amount lost" maybe "7 months" with dollar. Great. Could there be an issue with "recoverable calendar months and units through expiration" if suit filed June 1, 2026 and patent expired Dec 31, 2025: the six-year lookback starts 2020 but there is also "pre-suit damages" maybe under FRCP no? They didn't specify unless lookback; no separate pre-suit notice requirement? All damages through expiration pre-suit; no ongoing royalty after expiry. Good. Let's perhaps think if "filing lookback" could exclude July 1 2022? No, not more than six years. Wait more than six years before filing: June 1, 2026 minus 6 years = June 1, 2020. Infringement in July 2022 is 3 years 11 months before filing; within. Good. Potential issue: "The lookback does not shorten a later notice-based start date." We can quote: "Although the filing lookback would allow recovery back to June 1, 2020, the notice-based start date is later (July 1, 2022), so that later date controls." Good. Potential issue: "Patent owner bears burden of proving marking compliance or actual notice. Accused infringer bears burden of proving any earlier unmarked patented sales after patentee establishes a compliant program." If the accused infringer might prove "earlier unmarked patented sales" from Jan-Jun? But those are before compliant program; they don't matter to after July. Need maybe no. Let's consider if "marking compliance" and "constructive notice" from July 1 is inconsistent with "Before substantial compliance, damages are unavailable unless actual notice" because NovaTag didn't mark substantially all before July. Once compliant, does the statute allow damages for all post-compliance infringement? Under the rule yes. Some real courts might say "constructive notice" only to public, but for damages, marking is not "notice" to the defendant in the way actual notice; but the problem is hypothetical. We should not import real law beyond supplied. Potential issue: if product patent, marking maybe not required when "patentee" does not make/sell? But they do make/sell. No issue. Let's perhaps include "No actual notice on Oct 15, 2022; therefore the only possible pre-July 2022 notice is absent, and March-June 2022 damages are barred." Need also "The six-year lookback does not change this because it is an outer limit, not an alternative notice." Good. Let's maybe write final in an organized way: - "Notice Analysis" - "Damages Window Calculations" - "Alternative and Loss Amounts" Let's maybe include "assumptions": monthly convention and full calendar months. We can say "using the stipulated 2,000 units/month and no day-proration." This is safe. Let's think if we should "The first constructive notice date" might be "July 1, 2022" or "July 2022." Since facts say "Beginning July 1, 2022: 97% bore the patent number." So yes. Could "marking compliance remains at or above 95 through expiration" but "through expiration" after patent expired? Product after expiration maybe no need mark; but no matter. Constructive notice through expiration. Good. Potential issue: "NovaTag's patent issued Jan 1, 2022 and expired Dec 31, 2025. NovaTag sold a patented tracking tag throughout that period." Marking records from Jan1 through Jun30 2022: 60%; "Beginning July 1 2022: 97%" Might "beginning July 1" be a statement of monthly marking rate for July, not necessarily from first moment July 1. If first units marked on July 1? The problem says "first constructive-notice date"; likely July 1. If compliance achieved throughout July, maybe "beginning July 1" means on July 1. Good. Potential issue: DeltaMark's sales in March 2022 through Dec 2025; if "first recoverable damages date" is Jul 1, 2022, we should not count unmarked units distributed by NovaTag before July? No, damages are for DeltaMark sales; notice preconditions. Good. Let's perhaps formulate final: ``` At 60%, Jan-Jun 2022 marking rate did not give constructive notice; it is below 95%. At 97%, Jul 1, 2022 marking qualified; first constructive notice date is Jul 1, 2022. The later 60% period does not prevent prospective compliance. ``` Need perhaps "substantial compliance" under Rule 2: "at least 95%" not "roughly substantial"; 60% definitely not; 97% yes. Good. Maybe "The October 15 email did not give actual notice because it does not satisfy all three elements: no patent identified; no infringement charge; it is merely a license invitation and 'similar technology' statement." Good. Potential issue: "February 1 letter effect" - "The letter satisfies actual notice, but its date is irrelevant to the start because constructive notice is earlier. If the court nevertheless rejected marking compliance, the letter would set the start at Feb 1, 2023." This nuance is useful. Need maybe "The six-year filing lookback" - "No pre-June 1, 2020 sales. The earliest sale is Mar 2022. So the lookback does not bar any of the otherwise recoverable period." Good. Let's perhaps include "Total royalty damages: $1,512,000" with "not including interest/enhancement, per instructions." Good. Potential issue: "reasonable royalty is $18 per unit" maybe per "Model K unit in recoverable period." We multiply all units. Good. Let's maybe compute using alternative: - If Feb 1 start: ``` Damages = 35 months * 2,000 units/month * $18/unit = $1,260,000. ``` - "Value lost from incorrect start" = Correct $1,512,000 - incorrect $1,260,000 = $252,000. - "Unrecoverable Mar-Jun 2022" = $144,000. Maybe "Under the incorrect Feb 1 start compared with the entire accused sales period, the total excluded value is $1,656,000 - $1,260,000 = $396,000, consisting of (i) the $144,000 March-June 2022 period that is also unrecoverable even on the correct start, and (ii) the additional $252,000 for July 2022-January 2023 lost only because of the incorrect Feb 1 start." This will address phrase "and". Nice. Need perhaps "The first recoverable damages date" and "The number of recoverable calendar months and units through expiration" maybe if "through expiration" includes patent expiration date; yes. Let's maybe think if any "damages window" due to "patent owner bears burden of proving marking compliance" and "accused infringer bears burden of proving any earlier unmarked patented sales after patentee establishes compliant program" could create an issue that actual notice letter "received Feb 1, 2023" maybe if "after patentee establishes compliant program" DeltaMark can show 3% unmarked units after July but not >5%; no. Good. Let's consider if "constructive notice begins on date substantial compliance begins and continues while compliance remains at or above 95 percent" might mean if compliance at 97% from July 1 but because Jan-Jun 60%, "substantial compliance begins" only when there has been at least 95% over a rolling period? Rule says "date substantial compliance begins" and "on July 1 2022: 97%". No. Potential issue: "marking at least 95 percent of distributed patented units constitutes substantial compliance. A lower percentage does not." If in Jan-June 60%, no. But in July 97%; if there were unmarked units distributed after July 1 but before marking status changed? We can infer marking status applies to units distributed during July. Good. Let's maybe mention "The fact the email says 'Model K uses technology similar to ours' might create inquiry notice, but the rule requires actual notice and expressly says a statement that products use similar technology is insufficient." Nice. Potential issue: "Actual notice requires affirmative communication identifying patent, identifying accused product or conduct, and charging infringement." Feb letter "identifying patent, identifying Model K, mapping two claims to Model K, and stating DeltaMark's sales infringed." It also maybe "charges" but says sales infringed; yes. Good. Need perhaps perhaps there is no actual notice until filing suit? But Feb letter qualifies; actual notice can be pre-suit. Good. Let's think if "reasonable royalty $18 per unit" "every Model K unit in recoverable period infringed" but if damages start July 1 2022, "recoverable period" could be defined as after notice; all those units infringed. Good. Potential issue: "the total royalty damages" maybe "royalty window through patent expiration" if recoverable months from July 2022 through Dec 2025, but if "patent expired Dec 31, 2025", a sale in Dec 2025 if after expiration on Dec 31? "through Dec 2025" and "expired Dec 31, 2025" includes Dec 31. No need. Let's perhaps final with "Summary table:" ``` Item | Value Marking Jan-Jun 2022 | no constructive notice (60%<95) First constructive notice | July 1, 2022 Oct 15 email actual notice | no Feb 1 letter actual notice | yes, but not start Six-year bar | no effect (cutoff June 1, 2020) First recoverable date | July 1, 2022 Recoverable months | 42 Units | 84,000 Total royalty | $1,512,000 Wrong Feb 1 start | $1,260,000 Lost from wrong start | $252,000 Unrecoverable Mar-Jun 2022 | $144,000 ``` Need maybe "if Feb 1 incorrectly used, recoverable months=35" in table. Good. Let's perhaps mention "No recovery for Jan-Feb 2022 because no Model K sales then" but not necessary; perhaps "earliest possible damages would be March 2022, but those are pre-notice and barred." Good. Potential issue: "Patent issued Jan 1 2022 and DeltaMark sold from March 2022. If patentee had no marking compliance and no actual notice until Feb 1 2023, under real law DeltaMark might be liable for post-Feb damages; but under our rules, July 1 constructive notice." Good. Let's maybe consider "Constructive notice from marking starts when patentee begins marking substantially all. Before that, no damages unless actual notice. Does actual notice on Feb 1 maybe "charge infringement" for ongoing DeltaMark sales; if marking had not started, damage period would be Feb 1 2023 onward. But with marking started, damage period July 1 2022." This alternative might be helpful to "effect of Feb 1 letter." Potential issue: "Once constructive or actual notice begins, damages may be recovered for later infringement through patent expiration, subject to the filing lookback." The phrase "later infringement" after constructive notice; if DeltaMark sells 2,000 units in July 2022 and notice begins July 1, all July units are "later" (or same day). If one were highly formal, if a sale occurred at 12:01 AM July 1 before marking? no. But the assignment uses calendar months; not specified. We'll say "Under the stipulated monthly convention, count July 2022 through December 2025 inclusive." Good. Let's think if "all Model K units in recoverable period infringed" maybe "recoverable period" in stipulation might mean the period after filing lookback? No, says "in the recoverable period." It doesn't define. We define. Good. Potential issue: "the filing lookback" under 35 USC 286: "No damages may be recovered for infringement committed more than six years prior to filing or counterclaim." The "lookback" doesn't shorten later notice start. Good. Potential issue: "patent expired Dec 31, 2025" and "filed suit June 1, 2026"; no ongoing royalty for post-expiration; but if there were "pre-suit damages" for Dec 31 2025, okay. Potential issue: "accrued damages" for "making/selling" each month; if DeltaMark "sold 2,000 Model K units in every calendar month from March 2022 through December 2025" but maybe making occurred earlier; no facts. We use sales. Let's perhaps ensure final answer not too long but enough. Desired oververbosity 5. Use tables. Good. Need maybe "Value lost from incorrect start date" maybe if start date Feb 1, 2023, compared to correct start, the lost months are "July 2022 through Jan 2023 (7 months)." But if actual notice at Feb 1, one could still recover damages for "continuing infringement after actual notice" only; not July-Jan. The lost amount is $252,000. Good. Let's perhaps formulate final elegantly: ``` The first recoverable damages date is July 1, 2022, not March 2022 and not February 2023. ``` Maybe "first recoverable damages date" if "March 2022 through June 2022" unrecoverable, but "July 1, 2022" is exact. Good. Need maybe "unrecoverable March through June 2022 period" not include "June 30" no actual notice; if marking changes on July 1, June 30 previous day no. Good. Let's think if "actual notice" at Feb 1 could recover "damages for later infringement" and "continued infringement thereafter" but because DeltaMark's sales each month after Feb 1 all infringe, "continued" satisfied. Good. Potential hidden issue: "Before substantial compliance, damages unavailable unless accused infringer receives actual notice." The email in Oct 15, 2022 is after July 1? Wait important! Timeline: Email October 15, 2022, after constructive notice began July 1. I earlier analyzed email as before actual notice under marking? It is after July. Does it matter? The email does not qualify, so no. But if it did qualify, it would be after constructive notice and not affect start. Need mention not actual due to lack elements. The Feb 1 letter is also after. Good. Could there be a nuance: "Before substantial compliance, damages unavailable unless actual notice." Since constructive notice began July 1, did actual notice need to occur before July to recover March-June? No. It didn't. So March-June unrecoverable. Potential issue: "Actual notice received Oct 15, 2022" if it had qualified, could it recover damages from July 1-Oct 15 because constructive notice already; yes. Not relevant. Potential issue: "The email did not identify a patent number and did not state infringement." It is an invitation to discuss license, which under rule insufficient. Good. Need perhaps maybe "marking begins July 1 but if 97% is based on annual distributed units, not monthly, maybe substantial compliance only at end of year? Facts: "Beginning July 1, 2022: 97%"; "Compliance remained at 97% or higher through expiration"; so okay. Let's perhaps think if "patent owner bears burden of proving marking compliance or actual notice" in this assignment maybe "marking records show 97%" proof; enough. Good. Potential issue: "A lower percentage does not" 60 lower; no. Need maybe "substantial compliance begins on July 1; not on Jan 1 despite patent issued; not on March 1 when DeltaMark began sales." Good. Potential issue: "total royalty damages" if "through expiration" maybe include "July 2022 through December 2025" inclusive 42 months. But if patent expiration is Dec 31, 2025, and units in December 2025 could include sales after expiration? It says sold in calendar month December 2025; no precise day. Under calendar month convention and "through expiration" include Dec. If exact date, only Dec 1-31 before/at expiration. They said through Dec 2025. Good. Let's perhaps create "Calculation formulas": - Monthly royalty = 2,000 × $18 = $36,000. - Recoverable months = 6 (2022) + 12 (2023) + 12 (2024) + 12 (2025) = 42. - Units = 42 × 2,000 = 84,000. - Total = 84,000 × $18 = 1,512,000. - Alternative Feb start = 11 (2023) + 12 + 12 = 35. - Lost = 42-35=7 months; 7 × 36,000 = 252,000. - Unrecoverable = 4 × 36,000 = 144,000. Need perhaps include "If February 1 letter were used despite earlier constructive notice, first recoverable damages date would be February 1, 2023 and damages would be..." That is clear. Let's think if "damages amount if Feb 1 2023 were incorrectly used as start date" maybe if actual notice from Feb 1, 2023 under rule "Once actual notice begins, damages may be recovered for later infringement through expiration" but if constructive notice existed, "start date" cannot be later; but if "incorrectly used" means "assuming no constructive notice, actual notice date." We calculate. Good. Potential issue: "the value lost from that incorrect start date and the unrecoverable March through June 2022 period." If "incorrect start date" is Feb 1, 2023, correct start date is July 1, 2022, not March 2022. The "value lost from incorrect start date" maybe $252,000. What if someone argues if marking not compliant until Feb 1? Actually marking compliance July 1; "incorrect start date" later. We'll phrase "The additional amount lost solely by starting at Feb 1 rather than Jul 1 is..." Maybe "the unrecoverable March through June 2022 period remains lost even when using the correct July 1 start; it is not attributable to the Feb 1 error." Good. Let's perhaps state "If one compares the incorrect Feb 1, 2023 start to the entire accused-sales window from March 2022, the total excluded amount is $396,000, consisting of $144,000 (Mar-Jun 2022) plus $252,000 (Jul 2022-Jan 2023)." This could satisfy if they meant both values combined. Include. Need perhaps "No damages for 'general awareness' from email; no actual notice." Good. Potential issue: "Constructive notice begins on date substantial compliance begins and continues while compliance remains at or above 95." Does marking at 97% from July 1 "continue" while compliance remains at or above 95 through expiration; yes. If after expiration, no damages; not relevant. Good. Potential issue: "damages may be recovered for later infringement through patent expiration" But if suit filed after patent expiration, can recover pre-expiration damages. Yes. Potential issue: "the parties stipulate for this assignment that every Model K unit in the recoverable period infringed" perhaps "recoverable period" could be the six-year lookback period, not notice. But they ask calculate; no issue. Let's maybe final with "Conclusion: The recoverable window is July 1, 2022 through Dec 31, 2025; total damages $1,512,000." Let's ensure no hidden "patent marking before patent issue?" no. Potential issue: "patentee that makes or sells a patented article must give constructive notice by marking substantially all patented articles." If patentee doesn't mark all, actual notice required; if actual notice received, damages only after actual notice? The rule says before substantial compliance, damages unavailable unless actual notice. If actual notice received, damages maybe available for later infringement; not for earlier. Under Feb 1, actual notice. But constructive notice from July. Good. Potential issue: "The email did not identify a patent number and did not state that DeltaMark infringed." However if "We believe Model K uses technology similar to ours" could be "identifying accused product/conduct" and "similar technology" is maybe a charge? The rule expressly says "a statement that products use similar technology is insufficient." Good. Potential issue: "General awareness, a licensing invitation, or a statement that products use similar technology is insufficient." The email includes all three? General awareness and licensing invitation and similar tech. So no. Potential issue: "The February 1 letter maps two claims to Model K" maybe "identifying accused conduct" and "charging infringement." Yes. Potential issue: "received that day" ensures actual notice. Good. Let's perhaps write final answer now. Need be concise but with enough detail. Use headers and table. Final only.