What is Patent Marking?

Patent marking is the process of adding notices such as “Patent Pending” and “Pat. 1,234,567” on your products to notify others that these products are either patented or that a patent application has been filed on these products.

According to 35 U.S.C. § 287, a patent owner may be precluded from recovering damages for infringement if the patent owner’s products are not properly marked with the word “Patent” and the number of the patent. Thus, failure to comply with patent marking requirements can be very costly.  The America Invents Act (AIA) modified Section 287 to make the marking of products easier.  In addition to physically marking products or their packaging, the AIA included that notice to others can be provided through virtual marking.  Virtual marking may be achieved by “fixing thereon 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.”

In September 2014, the USPTO issued its “Report on Virtual Marking.”  The Report addressed the following four issues:

1.     The Effectiveness of Virtual Marking as an Alternative to Physical Marking

2.     Whether Virtual Marking has Limited or Improved the Ability to the General Public to Access Information about Patents

3.     Legal Issues Arising from Virtual Marking

4.     Deficiencies of Virtual Marking

Do I need to mark my product? How should I mark my product?  Can I mark my product if my patent has not issued yet?  How do I virtually mark my product?  These are all important questions to be thinking about before marketing or licensing your product.  Feel free to contact a Traverse Legal PLC patent attorney to help guide you through these issues.