Today, in a case of first impression, Rosebud LMS Inc. v. Adobe Sys. Inc., __ F.3d __ (Fed. Cir. 2016)(Moore, J.), following grant of the patent, the court denied pre-grant compensation because the user of the patented invention did not “ha[ve] actual notice of the published patent application” as required under 35 USC 154(d)(1)(B).  The panel provides guidance on the interpretation of the quoted phrase.
The opinion underscores the importance of putting the accused user of the claimed invention on actual notice as the best way to preserve the right to collect compensation on pre-grant usage of the invention.