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.

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.

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.

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

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