Metaswitch Networks Ltd. (“Metaswitch”) filed a motion for partial summary judgment to limit Genband US LLC’s (“Genband”) damages based on a failure to mark. In support of its motion, Metaswitch argued that partial summary judgment should be granted because: (1) Genband makes and sells products that practice the patents-in-suit, (2) Genband has not marked those products with the patent numbers, (3) these unmarked products have been sold throughout the damages period; and (4) Genband has no evidence that Metaswitch had pre-suit notice of the patents-in-suit.
Genband’s opposition did not contest any of these facts. Instead, Genband argued that Metaswitch cannot meet its summary judgment burden because Metaswitch contended that Genband does not practice the patents-in-suit. In support of this position, Genband cited to the report of Metaswitch’s expert that Metaswitch hotly contests Genband’s assertion that it practices the patents-in-suit. As a result, Genband argued there is a genuine fact dispute because a reasonable jury could credit Metaswitch’s evidence and conclude that Genband does not practice the patents-in-suit.