product and i think part of the history here if i recall is that the marking requirement was eliminated from the license sort of discouraging compliance with the law and so why shouldn't you be bond by the failure to mock and not collect damages there's word two points on that st of all we have to start with the statute says what's also look at this e statute itself does not read as a once you make a triggering on market sale in perpetuity from there on after damages are unavailable even if you don't sell what if what if i disagree with that there infringement why doesn't that perhaps the argument that you're making here today first off i think the failure so to mark has to link back to the beginning of section two hundred and eighty seven which says making offering or selling which is written in the present participle is happening so during the period of noncompliance and it's not just our view here that that must be the way it's read because under your reading and mass wouldn't exist because a mass says it can be cured judicially created exception that promotes the idea that in that situation where somebody has a product they haven't worked for six months or a year and then they start wasn't written or described in a manner where it was we're going to create an exception on a policy basis disregarding the language of the statute but putting that aside the policy description from nike and all the other cases with the policy behind two hundred and eighty seven even going back a speak to avoiding innocent infringement and the statute began as a duty to mark and then evolved into a you can choose to mark but in all of that context and even a m s it says so long as you're putting unmarked products into the preclude recovery of damages only for and friends and for any time prior to compliance with the marking or actual names of arms and the marking requirement is if you are making using or offering or selling and you want damages pre notice you must mark and if we step back beyond that to wind railway from the united states supreme court and this court in texas digital if you don't make a product you there's nothing to market and one real way speaks to be in possibility of that hugely though that with what i think was no action by your client the licensee stopped making the product so there is no affirmative act complying with the statute the market offer or sell it on more product and it's written in the sense of are you making offering or selling and nd point i'll make on that is from a policy perspective if this is a question of what's the policy you got your plod plan out the scenario b or p proposes which is if you ever put a product out into comms that's on market and then stop selling so for instance a university has a series of patents they st take someone to commercialize it they bark on an effort with them they don't mark but then that goes bust shortly thereafter under the current posture for that point forward for the remainder of the term of that patent there's no preset damages for knowing willful infringe absent the university figuring it out tracking them down and giving them actual notice and i think the policy behind that because i don't understand your hypothetical or your hypothetical that by the way you usually are the ones giving the hypotheticals and but in any event was your license except for the fact that you're now you you had a licensee that didn't lark and then they stopped selling the product so i don't understand your point but the point is whether it's in this case arctica or any individual investor or university is my was my example and i agree the fact pattern isn't different it's once if there's an unlicensed unmarked licensee sale that ceases to occur because they go out of business or it's ten products or fifty products at that point the life of no damages shall be recovered by the patent in any action or infringement why would they say in any action for infringement i mean i think that they're saying patente once you purposefully cause confusion for the world by allowing a product to be sold that isn't marked but is nonetheless covered by the patent you have an obligation there after to provide notice because you have infused confusion into the marketplace by doing what you've done so now we're going to help hold you to you know will get the benefit of strict liability for infringement now you're going to actually have to provide notice what's that's to me clearly what the statute was intended to do so what what i'd i'm failing to understand how you think the language of the statute helps you i don't see how you think and that's helps you but i don't understand how you think the language of the statute helps i think the language of the statute when it's as failure so to mark is going to back to someone who is making selling or offering ok so that's why i think the language of the statute helps it's written not as if you ever made if you ever sold you've triggered this it's problem is what it th infringement doesn't have a limitation well i think if you look at some of the earlier case one this the in any action for frenchmen there are times where it's a contributory act there are times where it was a prior owner and so i think you could read it to not be the manner in which in which it's more read it but taking it down to a mass if that's the reading and then the idea of a mass and other cases that you can somehow cure other than through actual notice finds no support in the statutory language which has to be the the touchstone of all of this marking along we look at the genesis of what even a m s s it's built off the idea of if you're putting unmarked products into the marketplace you're misleading consumers and you if you're doing that you can't get down there is lying is that because and this has the exception in order to promote the policy of encouraging marketing that we should f consistent with that on a couple points the language of it is it looks to compliance with the statute in the description of when that date would be the date isn't when you start marking under a mass the date isn't even the date  start selling more products m s repeatedly says full compliance with the marking statute is when you stop shipping on more products and when it was no longer to bring on more products so in a m s when it was applied s of course the fact pattern in that case they were selling but am i says just selling is not even enough you have to stop and no longer be selling on more products there are two ways one can fall into compliance at that point but  doesn't say that you fall into compliance by ceasing sales it doesn't say right i mean that's a different your type that your facts here are different and the facts and i m s you must agree i agree the facts are different because in a m s they continued to sell when they began to mark ok can i ask you something yes you are hypothetical you mentioned where you basically mentioned your facts in area here but mention it with respect to university do you think that was more sympathetic of a fact pattern in this case because the point is if you have no ability to manufacture that's why really which is what our to catch our had never manufactured in this window any person work with it doesn't matter because they license time to do so and moreover they had a license with time to do that said it's fine you don't have to mark art and during that period so that was an affirmative action did not comply with the statute right it wasn't affirmative action not to comply it hot it wasn't  wasn't as if arctic cat was putting out products themselves but it based your question i think if it doesn't that doesn't matter because hunter was acting the agent of purpose and the penalty for that and that what our cat would have suffered for that absent a nd issue in our brief is the damages window from two thousand and eight or nine to two thousand and thirteen is suspicion of sales the texas statute very much is dispositive the text of the statute describes actions making offering for sale or selling and as a consequence of having taken those actions the party is out of compliance with the statute that compliance if you've never sold and you don't think you snap back into compliance by ceasing to sell what if you start like an american medical marking i think you snap back into compliance by marking  statutory text no but under this court's precedent in american medical there is a statute judicially created curative act i would call it that additional curative act rather than an exception but i think american medical very much is policy driven and very much is creating a judicial additional curative act and in fact american metal set medical says exactly that it says in light of the permissive wording of the present statute and the policy of encouraging notice by marking we cover everything under the sun made by man wright i would say probably you could construe it that way here on this and then there are judicially created exceptions correct no one but those don't have any foundation in the statute well i mean that i think that that is  what i don't want to take too strong as shown on one on one hundred and one i will say that one out one does describe certain categories and when you go back to the history of those judicially created exceptions certainly cites the statute on those categories and then explains that these categories as construed exclude this and i think that's very much what american medical it was doing by mitigate it so it was here's the problem i have i'm just having so i will tell you i agree with your reading of the statute it's my reading of the statute the problem is i'm having trouble reconciling that reading of the statute the american medical case because i'm a textualist right i don't favor judicial exceptions but what's worse american medical seems to suggest that there construing to eighty seven not that they're creating a judicial exception and so that to me how how do i how do you explain their statement which you read to us we construe are in compliance in a later action for infringement but once you have failed once you have taken the action once the action has happened once you have failed to mark there are consequences for that failure to mark the consequences for that failure to market are that in any will say that what am house has done is it has it has read the the act of introducing into the market a new product that is marked as an action that is a is a curative act just like giving actual notice would be and that does make policy sense i don't really from a purely textualist perspective but it doesn't it doesn't make policy sense and the reason it doesn't make policy sense if you flooded the market with hundreds of thousands of unmarked products and under american medical the day you start marking and selling and maybe you've only sold five products as of that day you're entitled to damages from that point forward it takes off the table whether any actual infringer was informed maybe many infringe saw hundreds of thousands of unmarked products and thought that they were it was fair game to make those products and the fact that you suddenly mysteriously on day one start making products and marking them and you know trying to start the process of distributing them doesn't cure misinformation for any given infringer necessarily it doesn't necessarily but it is an action so it is a cure in the sense that if a person wanted to to make a product and felt they could do it freely without fear of a pat right that is if a competitor wanted to make a product what the marking statute assumes is they're going to go out and look at something and and take a look at the product and say hey look i can copy this it looks really a great invention and it's totally unmarked if under the american medical line if they went out and bought the latest version which you could very well assume they would do as a policy matter they would see oh it is marked i can't do this so i agree with you that it is imperfect according to you the day you're going to launch your product is the day you're going to go and look at the most current product on the market and we don't if were if we're talking reality wouldn't you acquire a product look it over and develop your own product which would a competing product which would take some measure of time that's true so how would you i mean how would you learn about the quote cure this oh wait no i put all this time and money into developing a product that i'm about to sell and i did so because i bought a one thousand copies of it that were unmarked and you know the day before i had lunch or a day after i lost i mean i agree with you it is imperfect it is imperfect but it is it is it's a policy balancing issue that get damages once they fail to mark they would never appear whatever to mark because in fact i guess theoretically confusion wouldn't or to their benefit right more people would rest at that point in the products they're after and start trying to compete with them and they would have more people to go after actually right that's very much the reasoning of american medical as it stands and that's that's precisely why and i think that's why that the characterization of american medical but whether you characterize it as as constructionist as the case actually did or whether you characterize it as it usually creative curative act additional cure for marking that what that doesn't do is give a pass to someone who did exactly what arctic captive which is electively license the product try to put in the original license agreement a requirement for marking be told by their licensee we don't want that and then take it out that they very welcome would have insisted on including that marketing marking requirement they would probably have to take less money for the license agreement but that was a choice that they made to be out of compliance with the marking statue once they made that choice the consequence is is very clear from the session and in fact there's no dispute that but can't you do you really think i mean it but that's bothering me is do you really think once they've made that choice that if  of the market they're licensee and if arctic cat went on the market and sold two of these ski do things whatever they are and mark them both but that's it they're suddenly back in compliance now and from that point forward they would be able to get clear that it is tying this to what it calls can substantially consistent and continuous marking so there is some room there in american medical it may be that selling one or two products is not enough i that a question i think for this court for another day here we have selling zero products and we know that zero is not enough there was no curative act whatsoever whatsoever i think i have into the quotation mark was in the wrong place because an act is a fact or it was a typo with the missing f from an act of fact i'm stood still perfectly correctly interpreted dunlap the very sentence that stood quotes and quotes the part that they quote and is something to be done by him right something to be done by him is the portion in armstead that makes clear that this is not just about burdens but is in fact an action t done something to be done by him and him refers back to the prior sentence of talking about patton or some state got it completely right notwithstanding the typo and i'm stead is correctly interpreting dunlap there's no reason certainly no reason to change that's certainly a reason to you go back to the beginning of the purpose of the statute the purpose of the statute was very clearly to prohibit false marking and to encourage accurate marking and when you take that into account that the statutory text requiring marking only when there is only when when there are during the period in which there is making offering for sale or selling right that makes sense you only have to mark something if you're actually making it or selling it but once you have failed to do so the consequences of that failure extend beyond the period in which you're marking it and they extend to quote any act of infringement like you counsel thank you thanks there is a way to reconcile a mass with a language to eighty seven and it's simple that sure is when you stop selling unmarked goods because the statute specifically refers back to the making selling or offering products on the policy side of the house i agree am mass certainly does not declare it's creating some policy based exception it purports to construe the language it doesn't actually parse the language because if it did to find a cure provision that involves marking there is non the policy at issue that would apply here just like it applies in a m s is to incentivize stopping morse a station of putting on more products out into the marketplace that itself would prevent innocent infringement which is at core the up the base policy in nike and going back to supreme court's treatment of one real why i don't agree does nothing to cure the misinformation that we've already communicated or that those products certainly are out there and massive knowledge that there are products like that that are going to be out there but there's no analysis and i m s to the point of i think tens of thousands of on more prudes that were in the marketplace and under if you don't read to eighty seven to require the current making selling or offering it on more product and coming into compliance once that stops well then you're in  scenario where your example judge moore of if arctic at the end of the honda effort had said ok this is the way the law is going to be considered we would have spun up a manufacturing line sold a handful of personal watercraft that were marked and then we'd be all set going should be the same standard hero or a substantially consistent we no longer selling on market products that's fine but your hypothetical was selling five rather i think at that point you would no longer consider you wouldn't of there's not two are three aren't i think at that point there's not a numeric test and once you've stopped and i am asked didn't say how many have you now sold they said have you stopped selling the unmarked thank you thank you council tax is submitted