What You Need to Know About Virtual Patent Marking

Regarding virtual patent marking, a relatively new way for patentees to put the public on constructive notice of their patent, 35 U.S.C. § 287 (a) has this to say:

“Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent, or 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, or when, from the character of the article, this can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice.”

In short, to comply with the requirements for virtual patent marking, patentees must mark their patented article with the word “Patent” or “Pat.” followed by the URL address where their patent information, including the patent number, is accessible to the public. Consider a few real life examples of companies that have taken advantage of virtual patent marking:

How Does Virtual Patent Marking Benefit a Company?

While it is still legally acceptable to mark the actual article with the word “Pat.” or its equivalent followed by the patent number, virtual patent marking offers companies at least three major benefits.

  1. Virtual patent marking allows patent owners to avoid the effort and expense involved in updating and maintaining the patent information on its products and/or packaging. When a patent expires or is issued, patent owners can simply update their patent landing page. There is no need to change product packaging or molds.

  2. Virtual patent marking is just as effective and legally valid as other marking methods when it comes to giving constructive notice to potential infringers.

  3. Virtual patent marking, if done correctly, may eliminate potential false marking claims.

If you need assistance setting up your virtual mark or your patent landing page. I would be happy to assist you. Feel free to contact me anytime.

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.