What is Involved in Proper Patent Marking?

Under 35 U.S.C. § 287, a patentee who makes or sells patented articles is required to mark the articles with the word “patent” and the patent number. Proper patent marking allows for the legal recovery of damages without actual notice to the infringer. On the other hand, the penalty for failure to mark is that the patentee may not recover damages unless the infringer was duly notified and continued to infringe after proper notice had been given. With so much at stake, patentees do well to become familiar with the patent marking process.

What is Involved in Patent Marking?

Patentees can put the public on constructive notice of their patent by marking the article with the word patent and the actual patent number. This might read as follows: “Patent Number 1,234,567”. The words patent and number can also be abbreviated to read, “Pat. No. 1,234,567”. If multiple patent numbers apply to the article, each number must be found in the patent marking.

What About Products that Cannot be Marked Easily?

It is always best to mark the product itself with the patent number, but the law does allow for a few exceptions to the rule. For example, if an article is so small that marking it with a number is impossible, the patent marking may fit on the packaging instead. Patentees must exercise caution however, since the law states that this is only acceptable if marking the article “cannot be done”.

What is Virtual Patent Marking?

Virtual patent marking refers to a marking in which the word “patent” or the abbreviation “pat.” is marked on an article followed by an internet address where the patented article is associated with one or more patent numbers. Virtual patent marking is especially convenient for patent owners who must update their patent information on a regular basis.

Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida.  She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets.