Breaking the Mold: Virtual Marking of Patent Numbers


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When I pick up a pen or a razor or some other mundane item and I see “Pat. D487822″, my brain almost instinctively tries to determine what year the patent issued, whether it’s still active, and what part of the product was patentable.  Unless you’re a patent attorney, you probably do not pay much attention to these, so why are these on products?  In order to recover damages for infringement of a patent, the patentee must provide notice of its rights by marking any article covered by the patent, except for damages incurred after the infringer was notified of the infringement.  (35 U.S.C. § 287).  Proper marking has required the patent number to be fixed directly to the product, which is why you see patent numbers molded into plastic cups.  Where direct affixation is not possible, a label, product packaging, or another close association between the patented article or method itself and the patent.

Under the America Invents Act, the statute has been amended to allow “virtual marking,” whereby the patentee can simply mark a website like “” on its products.   Each product covered by a patent must be associated with the patent on the website.  The website must be publicly accessible without any fee or purchase required for access.  Thus, a constant website can be molded into a product, without changing molds or packaging when a patent has issued or expired.

In my opinion, there is a lot of creativity available for “patent” websites that can add a lot of value to a company.  Rather than simply making a list of products and the associated patents, the product could be visually mapped in such a way that associates the various patents to their respective components that makes the average person appreciate the patented technology in their products in a more interactive manner.   The average person knows how to access a website, but may not know how to find a patent based on a patent number.  It’ll be interesting to see how companies respond to this option.  What do you think?  What advantages could this bring to your company or your clients?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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