Velocity Patent, LLC v. Audi of Am., Inc., No. 13 C 8418, Slip Op. (N.D. Ill. Dec. 11, 2014) (Darrah, J.).

Judge Darrah held that Judge Mason’s discovery report and recommendation was clearly erroneous, and ordered past damages discovery be produced going back six years before the complaint filing in this patent case.  Judge Mason recommended limiting damages discovery to the date of the complaint forward, but his recommendation was clearly erroneous because neither party advanced its respective patent marking argument before Judge Mason.  In light of that and based upon Velocity Patent’s claim that neither it nor its predecessors made a product that could have been marked, it need not plead marking, the Court ordered past damages discovery include the period six years before filing of the complaint.