Virtual patent marking is an important way to let others know that a patent on the product or service exists. Effective September 2011, the America Invents Act began to allow owners of property to use a virtual patent marking which consists of the word "patent" or an abbreviation and the URL address.

This new marking will help the general public to associate the patent article with the patent number. This system provides added benefits to inventors, as they will not need to create new molds every time they receive a new patent.

The New 35 U.S.C.287(a)

This new code outlines the way a virtual patent marking must appear through using the word "patent," or abbreviation "PAT.," in tandem with the URL for the patent number. The code also states that if the patent holder fails to provide a mark, they cannot seek damages from an infringer except in the event that the infringer knows what they are doing constitutes infringement and continues to do so anyway.

Example of Virtual Patent Marking

There are two primary ways a patent mark can be created to be in compliance with the updated code. Examples of the formats are:

  • Patent
  • PAT.

When someone enters the URL address into the search bar, it will take them to the company webpage where the patents for all of their products are listed. If a patent holder finds out someone has been infringing and they have not marked their products, they will need to serve them with a specific notice of infringement that goes unheeded before they can seek out litigation.

In the event that certain families of products are covered by multiple patents, the patent holder will need to include “covered by one or more of Patents” on the mark and have it followed by the various patent numbers and web address links taking you to the appropriate patents.

It is important that all patented articles stay consistent and that all of them bear a marking. It is also the responsibility of a patent owner who has licensed their patent to ensure that their licensee is following an appropriate marking program. They must make sure to provide their licensee with instruction on how to provide the mark and what information is required for it.

While marks should be placed in a highly visible place, they can be placed in a less visible area if they are likely to suffer less wear and tear that may remove them. If a product cannot be marked due to a small size or unusual shape, the packaging that comes with it must contain the appropriate marking. Even if the product is marked, the packaging should be marked as well.

In the event infringement occurs on a marked item, only the United States will be able to sue for penalties. Individuals will only be able to sue for damages due to competitive injury.

Other additions to the code that might affect patent holders are:

  • Products that contain an expired patent number will no longer constitute as a violation.
  • Damages can only be for competitive injuries and are limited to damages to compensate for the injury.
  • The law can be applied retroactively.

In essence, the AIA has provided patent owners the right to virtually mark their products without giving penalties for mismarking. This makes marking products the best option for a patent owner.

Virtual Patent Marking Benefits

There are many benefits to virtual patent marking. Some of the advantages for patent holders include:

  • The ability to update the patent information without the expense of modifying a product or redoing tooling. Virtual patents also save costs by combining all of the patent information on one platform.
  • The amount of information required on the marking is less, giving patent owners the ability to mark smaller products instead of having to label them.

The main test for whether a patent has been sufficiently marked is whether the general public is aware of the patent. A patentee will be considered in full compliance with marking requirement if they have at least substantially marked most of their products and they are no longer distributing unmarked products.

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