Key Takeaways

  • Patent marking notifies the public that a product is protected by one or more patents, which helps deter infringement and maximize potential damages in litigation.
  • Markings must be placed directly on the product if possible; if not, packaging is acceptable. Virtual marking via a website is now widely used.
  • Compliance is crucial for patent owners and licensees alike — failing to properly mark can limit recoverable damages.
  • Best practices include accurate, up-to-date markings, marking all applicable patents, and creating internal compliance systems.
  • Patent marking is not required for non-tangible inventions, trade secrets, trademarks, or copyrighted works.

Patent Marking Requirements

Patent marking requirements exist to let others know that a particular item is patented in accordance with patent laws of the United States. Since 2011, it is much easier for people to adhere to the patent marking requirements, thanks to the Leahy-Smith America Invents Act. This is good news to inventors, as failure to follow procedure regarding patent marking requirements can wind up being a costly mistake for people who create new products or work in the field of research and development.

A primary question that people ask regarding the patent marking requirements is whether or not they can get away with providing the patent marking on the packaging and not on the item, itself. Generally speaking, no. Only in such situations when the item or product is simply to small to place the patent number is it acceptable to place the marking on the product packaging.

As such, patent holders must be mindful that if or when they are placing their patent numbers on packaging, that it is not because it is simply easier, but actually necessary. If you are curious as to whether or not you can get away with placing your patent marking on the packaging rather than the product itself, you may want to look at similarly sized or constructed items to see where their patent markings are located. If located on the packaging, then you should be fine, otherwise, better to err on the side of caution and find a way to place the marking on the actual product.

Why Patent Marking Matters

Patent marking plays a strategic role beyond mere legal compliance. It serves as a public notice that a product is protected by a patent, which can discourage competitors from copying the invention and strengthen your position in infringement disputes. Without proper marking, a patent owner may be unable to recover damages for infringement occurring before the infringer was notified of the patent. In other words, effective patent marking can significantly impact the monetary remedies available in a lawsuit.

Patent marking also builds credibility with consumers and business partners by demonstrating that a product is backed by patented innovation. It can be a valuable marketing tool, helping distinguish patented products in competitive markets. For manufacturers and licensees, clear marking reduces ambiguity about patent rights and reinforces a company’s intellectual property strategy.

Who Must Comply

Perhaps you are uncertain if you are required to provide the patent marking on your products. Generally speaking, the guidelines to follow are:

  • If you own a patent, you are expected to provide the appropriate patent number on the items that are patented.
  • If you are providing licensee rights to a vendor, then as the patent holder, it is your responsibility to ensure that the licensee provides the appropriate patent number on all applicable items. (Don’t worry… you may be given a bit of wiggle room on this one, as generally the courts understand that it may not be feasible to mark every single item. Provided that there seems to be substantial compliance to the patent marking requirements, you should be okay.)
  • As the patent owner, should you catch a licensee being noncompliant, you not only have the right to demand, but you are expected, that the licensee become compliant with the patent marking requirements and ensure that the appropriate patent markings are being used.

What if the item has more than one patent associated with it? Are you required to use every single patent marking? The answer is yes; any patent that applies to that product is expected to be placed on it. If you fail to do this, should patent infringement occur, it will be that much more difficult to seek damages.

Responsibilities of Patent Owners and Licensees

Both patent owners and licensees have legal responsibilities when it comes to patent marking. While the patent owner holds the ultimate obligation to ensure compliance, any entity authorized to make or sell the patented product must also participate in marking efforts.

  • Patent owners should implement a system for monitoring how their products are marked, updating markings as new patents issue or old ones expire, and ensuring that all relevant products display the correct information.
  • Licensees must follow the marking instructions provided by the patent owner and notify them of any production or packaging changes that could affect marking compliance.
  • If multiple patents cover a single product, all relevant patent numbers should be listed. Omitting one can reduce the scope of damages recoverable in litigation.
  • A consistent compliance program — including audits, documented marking policies, and training — can help demonstrate “substantial compliance” in court if marking practices are ever challenged.

Virtual Marking

Virtual marking had made it much easier for inventors and companies to ensure they are always in compliance with the patent marking requirements. It used to be that every time a new patent was issued or a patent number changed, a manufacturer would have to create new stamps, packaging, etc., to ensure that the new patent numbers were being properly placed on products. Now, with virtual marking, the patent owner need only make sure their virtual marking website is being correctly updated.

However, as the patent holder, simply updating the virtual marking website, online will not be solely sufficient, as the internet address of that website will need to be updated on your products, as well.

Virtual Marking Best Practices

Virtual patent marking, permitted under 35 U.S.C. § 287(a), allows companies to list their patents on a publicly accessible website instead of directly on the product. This approach offers flexibility and reduces manufacturing costs since markings don’t need to be physically changed with every patent update.

To comply with virtual marking rules, companies should:

  • Provide a clear URL: The product or its packaging must include the word “patent” or “pat.” followed by a URL that leads directly to a webpage listing applicable patent numbers.
  • Keep the website current: Outdated or incomplete listings could undermine marking efforts and limit damages in infringement cases.
  • Ensure accessibility: The website must be easily accessible to the public without passwords or special permissions.
  • Include detailed information: The page should list product names and all associated patent numbers clearly and accurately.

A well-maintained virtual marking page not only fulfills legal requirements but also simplifies compliance for large product portfolios with frequent patent updates.

Do the Patent Marking Requirements Apply to All Patents?

You may also be wondering if the patent marking requirements apply to every type of patent. The answer is no. Times in which the patent marking requirements do not apply include:

  • Times in which there is not a physical product to be marked
  • Copyrighted materials, for which there are a different series of standards or requirements by which to abide
  • Trademarked materials, which, like copyrighted materials, have their own standards of compliance

Common Mistakes and Legal Risks

While marking is optional, mistakes can carry serious consequences. False marking — placing “patented” or “patent pending” on a product that is not actually covered by a valid patent — can lead to liability under federal law. Even unintentional errors may harm a company’s credibility or weaken its legal position in court.

Other frequent mistakes include:

  • Failing to update expired patents: Continuing to list expired patents may be seen as misleading.
  • Incomplete patent listings: Omitting applicable patents can reduce the recoverable damages window.
  • Improper website references: Broken links or unclear URLs can render virtual marking ineffective.
  • Marking unpatented products: Using patent markings on products not covered by any patent can lead to false marking claims.

Establishing a regular audit process and involving legal counsel in marking decisions can help minimize these risks and maintain compliance.

Frequently Asked Questions

  1. What is the purpose of patent marking?
    Patent marking notifies the public that a product is patented, deters infringement, and is required to maximize recoverable damages in infringement cases.
  2. Is patent marking mandatory?
    It’s not mandatory, but failing to mark can limit your ability to recover damages for infringement that occurred before the infringer was notified.
  3. Can I use a website for patent marking                                                                                                            
    Yes. Virtual marking allows you to list applicable patents online, provided the product or packaging includes a URL and the site is kept current.
  4. What happens if I mark a product incorrectly?
    False marking — such as marking a product with expired or inapplicable patents — can lead to legal penalties and reduce your ability to enforce patent rights.
  5. How often should I update patent markings?
    Review and update markings regularly, especially when patents are granted, expire, or new products are released, to maintain legal compliance.

If you need help with patent marking, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.