## Bottom line

- **January–June 2022 marking at 60% did not give constructive notice.**
- **Constructive notice began on July 1, 2022.**
- **The October 15, 2022 email was not actual notice.**
- **The February 1, 2023 letter was actual notice, but it did not control the start date because constructive notice had already begun on July 1, 2022.**
- **The six-year filing lookback does not reduce the damages window.**
- **First recoverable damages date: July 1, 2022.**
- **Using the supplied calendar-month method, the recoverable window is July 2022 through December 2025.**
- **Recoverable months: 42.**
- **Recoverable units: 84,000.**
- **Total royalty damages: $1,512,000.**
- **If February 1, 2023 were incorrectly used as the start date, damages would be $1,260,000.**
- **Using the incorrect February 1, 2023 start date costs $252,000 relative to the correct start date.**
- **The unrecoverable no-notice period from March through June 2022 is $144,000.**
- **If you combine the incorrect-start-date loss and the March–June 2022 no-notice loss, the total amount not recovered in that incorrect-start scenario relative to all stipulated infringement is $396,000.**

---

# 1. January–June 2022 marking: no constructive notice

NovaTag’s marking records show:

| Period | Marking percentage | Substantial compliance? |
|---|---:|---|
| January 1, 2022 – June 30, 2022 | 60% | No |

Under the supplied rules, substantial compliance requires **at least 95%** of distributed patented units to be marked. NovaTag’s 60% marking rate from January through June 2022 is below 95%, so it does **not** constitute substantial compliance.

Therefore, NovaTag did **not** give constructive notice during January through June 2022.

---

# 2. First constructive-notice date: July 1, 2022

Starting July 1, 2022, NovaTag’s marking level was:

| Period | Marking percentage | Substantial compliance? |
|---|---:|---|
| July 1, 2022 – December 31, 2025 | 97% or higher | Yes |

Because 97% is at least 95%, NovaTag achieved substantial compliance beginning July 1, 2022. Under the supplied rules, constructive notice begins on the date substantial compliance begins and continues while compliance remains at or above 95%.

Thus, the **first constructive-notice date is July 1, 2022**.

---

# 3. October 15, 2022 email: not actual notice

The October 15, 2022 email stated:

> “We believe Model K uses technology similar to ours. We are interested in discussing a commercial license.”

That email did **not**:

1. Identify the patent number;
2. State that DeltaMark infringed;
3. Charge infringement; or
4. Map any claim to Model K.

Under the supplied rules, a licensing invitation or a statement that products use similar technology is insufficient to provide actual notice.

Therefore, the October 15, 2022 email did **not** give actual notice.

---

# 4. February 1, 2023 letter: actual notice, but not the controlling start date

On February 1, 2023, NovaTag sent a letter that:

1. Identified the patent;
2. Identified Model K;
3. Mapped two claims to Model K;
4. Stated that DeltaMark’s sales infringed; and
5. Was received by DeltaMark the same day.

That letter satisfies the supplied actual-notice requirements.

So, **actual notice began on February 1, 2023**.

However, constructive notice had already begun on July 1, 2022. Because constructive notice began earlier, the February 1, 2023 actual notice does **not** move the first recoverable date earlier or later for purposes of the correct damages window. It is simply a later, redundant notice for the infringement period already covered by constructive notice.

Importantly, actual notice on February 1, 2023 does **not** make recoverable the earlier March–June 2022 sales, because those sales occurred before actual notice began.

---

# 5. Six-year filing lookback

NovaTag filed suit on **June 1, 2026**.

The six-year lookback bars recovery for infringement occurring **more than six years before filing**.

Six years before June 1, 2026 is **June 1, 2020**.

DeltaMark’s stipulated infringing sales began in **March 2022**, which is well within six years of the June 1, 2026 filing date.

Therefore, the six-year lookback does **not** shorten the damages window here.

Also, under the supplied rules, the lookback does not shorten a later notice-based start date. The correct notice-based start date is **July 1, 2022**, which is later than the six-year cutoff, so the start date remains July 1, 2022.

---

# 6. First recoverable damages date

The first recoverable date is the earlier of:

- constructive notice, and
- actual notice,

subject to the six-year lookback.

The timeline is:

| Date | Event | Notice effect |
|---|---|---|
| January 1, 2022 | Patent issues | No damages yet absent notice |
| March 1, 2022 | DeltaMark infringing sales begin | No notice yet |
| July 1, 2022 | Marking reaches 97% | Constructive notice begins |
| October 15, 2022 | NovaTag sends licensing email | No actual notice |
| February 1, 2023 | NovaTag sends infringement letter | Actual notice begins |
| June 1, 2026 | Suit filed | Six-year lookback does not cut the window |
| December 31, 2025 | Patent expires | No post-expiration damages |

Because constructive notice began on **July 1, 2022**, the first recoverable damages date is:

> **July 1, 2022**

Using the supplied calendar-month calculation method, the first recoverable calendar month is:

> **July 2022**

---

# 7. Recoverable calendar months and units

DeltaMark sold 2,000 units in every calendar month from March 2022 through December 2025.

The recoverable period is:

> **July 2022 through December 2025**

Count the months:

| Year | Recoverable months | Count |
|---|---|---:|
| 2022 | July, August, September, October, November, December | 6 |
| 2023 | Full year | 12 |
| 2024 | Full year | 12 |
| 2025 | Full year | 12 |
| **Total** |  | **42** |

So:

- **Recoverable calendar months: 42**
- **Units per month: 2,000**
- **Total recoverable units:**

\[
42 \times 2{,}000 = 84{,}000
\]

---

# 8. Total royalty damages

Reasonable royalty is:

\[
\$18 \text{ per unit}
\]

Total recoverable units:

\[
84{,}000
\]

Total damages:

\[
84{,}000 \times \$18 = \$1{,}512{,}000
\]

Therefore, NovaTag’s correct royalty damages are:

> **$1,512,000**

---

# 9. Hypothetical incorrect start date: February 1, 2023

If the damages period were incorrectly started on **February 1, 2023**, the recoverable window would be:

> **February 2023 through December 2025**

Count the months:

| Year | Months | Count |
|---|---|---:|
| 2023 | February through December | 11 |
| 2024 | Full year | 12 |
| 2025 | Full year | 12 |
| **Total** |  | **35** |

Units:

\[
35 \times 2{,}000 = 70{,}000
\]

Damages:

\[
70{,}000 \times \$18 = \$1{,}260{,}000
\]

So, if February 1, 2023 were incorrectly used as the start date, damages would be:

> **$1,260,000**

---

# 10. Value lost from the incorrect start date

The correct start date is **July 1, 2022**.  
The incorrect start date is **February 1, 2023**.

The months lost by using the incorrect start date are:

> **July 2022 through January 2023**

That is:

- July 2022
- August 2022
- September 2022
- October 2022
- November 2022
- December 2022
- January 2023

Total: **7 months**

Units:

\[
7 \times 2{,}000 = 14{,}000
\]

Value:

\[
14{,}000 \times \$18 = \$252{,}000
\]

So the incorrect February 1, 2023 start date causes NovaTag to lose:

> **$252,000**

relative to the correct July 1, 2022 start date.

---

# 11. Unrecoverable March through June 2022 period

DeltaMark sold infringing units in:

- March 2022
- April 2022
- May 2022
- June 2022

These four months occurred before constructive notice began on July 1, 2022, and before actual notice began on February 1, 2023.

So those four months are unrecoverable.

Units:

\[
4 \times 2{,}000 = 8{,}000
\]

Value:

\[
8{,}000 \times \$18 = \$144{,}000
\]

Therefore, the unrecoverable March–June 2022 period is:

> **$144,000**

---

# 12. Combined lost value under the incorrect-start scenario

If the case were incorrectly started on February 1, 2023, NovaTag would not recover:

1. The no-notice period: **March 2022 through June 2022**  
   - 4 months  
   - 8,000 units  
   - $144,000

2. The recoverable period incorrectly excluded: **July 2022 through January 2023**  
   - 7 months  
   - 14,000 units  
   - $252,000

Combined omitted period:

\[
4 + 7 = 11 \text{ months}
\]

Combined omitted units:

\[
8{,}000 + 14{,}000 = 22{,}000
\]

Combined omitted value:

\[
22{,}000 \times \$18 = \$396{,}000
\]

Equivalently:

\[
\$144{,}000 + \$252{,}000 = \$396{,}000
\]

So, if February 1, 2023 were incorrectly used as the start date, the total amount not recovered relative to all stipulated infringement from March 2022 through December 2025 would be:

> **$396,000**

---

# Final summary table

| Scenario | Period | Months | Units | Royalty |
|---|---|---:|---:|---:|
| **Correct recoverable period** | July 2022 – December 2025 | 42 | 84,000 | **$1,512,000** |
| Incorrect start date scenario | February 2023 – December 2025 | 35 | 70,000 | **$1,260,000** |
| Lost due to incorrect start date | July 2022 – January 2023 | 7 | 14,000 | **$252,000** |
| Unrecoverable no-notice period | March 2022 – June 2022 | 4 | 8,000 | **$144,000** |
| Combined lost value in incorrect-start scenario | March 2022 – January 2023 | 11 | 22,000 | **$396,000** |

**Correct total royalty damages: $1,512,000.**