Virtual Patent Marking.

As part of efforts to improve the patent process, the Leahy-Smith America Invents Act (AIA) modernizes the ways that patent holders may mark their products. It specifically allows patent owners to mark their products with an Internet address that provides the patent numbers associated with the product.

Patent marking is important because, without it, a patent holder may have a more difficult time proving infringement. Under 35 U.S.C. 287 (a), if a patent holder fails to properly mark a patented invention, “no damages shall be recovered by the patentee in any action of infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for the infringement occurring after such notice.”

Under the existing statute, patentees had to mark their products by puting  the word “patent” or the abbreviation “pat.” on the invention along with the patent number. If this could not be done easily, a notice could be provided by fixing a label containing the information to the article or to the package containing the article.  However, if there was more than one patented item in the object being sold, like a computer, or a smartphone, the amount of space required makes marking very difficult.

The AIA allows a patent holder to virtually mark the article “by fixing on the article the word ‘patent’ or the abbreviation ‘pat.’ together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent.”

The amended statute highlights that listing patents on a company’s website, by itself, is not sufficient to comply with the virtual marking permitted under § 287(a). The patent holder must still mark its product with the word “patent” in order to be afforded protection under the law.

How Can I Help?

Patent marking is an important part of the patent process. In fact, it is integral to protecting your rights. I work with clients in all phases of patent procurement, including patent marking. If you need help to marking your patented invention, or know someone that can use my help, please contact me for a free 30 minute consultation by sending me an email or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities.  Connect with me on Google +




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