What is Patent Marking?
Written by John Marh - January 16, 2025
Patent marking is the process of labeling a patented article or product with information about the patent that covers that product or article. This can include details of an issued patent or when a patent application is pending.
The purpose of patent marking is for patent owners to give notice to the public of their patented products.
Patent marking is optional and is not required by patent owners at all. While patent marking is not required in the U.S., failure to do so can reduce monetary awards in patent infringement lawsuits.
Therefore, patent owners are encouraged to mark their products to give notice to the public and thereby reduce accidental infringement by competitors who otherwise may not be aware of the existing patent.
Statutory Requirements
Under 35 U.S.C. § 287, a patent owner can only collect a monetary award for the infringement of his or her patent rights if the patent owner provides adequate notice to the infringer.
Adequate notice, as provided by the AIA, can be provided in 2 ways: “constructive notice” and “actual notice.”
Actual notice occurs when the alleged infringer is notified by the patent holder that the infringer’s products infringe on the patent rights of the patent owner (e.g., a letter providing notice of infringement).
Constructive notice occurs the patent products are labeled with the corresponding patent number (e.g., “patent,” “pat.” or “patent” with the patent number actually on the product).
Monetary damages may be calculated for the infringing activity by calculating damages based on the earlier constructive notice date rather than the actual notice date. The earlier constructive notice date may potentially increase monetary awards in patent infringement lawsuits.
Traditional Patent Marking vs. Virtual Patent Marking
Traditionally, patent marking required all of the patent number(s) to be placed directly on the product or on the packaging or labeling when marking the actual product is not feasible.
Since the AIA’s passage in 2011, however, patentees have been able to inform the public that an article is patented through “virtual marking” (i.e., use of the word “patent” or the abbreviation “pat.” together with the URL of a website address where the actual patent number may be found). 35 U.S.C. § 287.
Although traditional marking
As your patent portfolio grows and patents expire, the product (or packaging or labelling) needs to be updated continuously each time a patent is added or removed. In some cases, the cost of traditionally or physically marking the product may be disproportionate to the cost of the product itself. This is especially true for companies with large patent portfolios and/or extensive product offerings.
Therefore, can often be easier and more cost-effective to virtually mark your products. As opposed to physically marking a patent number on a product, virtual marking allows a patent owner to quickly and easily update the patent data webpage without the added costs of modifying the actual product.
Conclusion
Patent marking is an important, yet often overlooked step for patent owners in protecting their patent rights and securing any legal recourse and competitive edge that comes with the issued patent(s).
When seeking legal recourse, the burden is on the patent owner to demonstrate that its patent marking practices are effective and appropriate. To that end, it may be beneficial for patent owners to work with a patent law firm with the requisite expertise to help maintain their patent marking program and patent portfolio.
Contact Our Orange County Intellectual Property Lawyers Today
At Jafari Law Group, we have years of experience helping clients of all backgrounds and from all industries successfully prosecute and defend their patent rights. Contact our Orange County patent attorneys today for a free consultation if your patent is being infringed or if you need to enforce your rights. We want to put our experience and track record of success to work for you.