Articles & White Papers

Basics - Patent Virtual Marking

August 31, 2020

By: Dennis J. Butler

Virtual patent marking facilitates marking a patented article or related packaging with a single URL, such as http://www.companyZ.com/patents.htm, as opposed to marking constantly changing product offerings with ever changing patent numbers.  Virtual marking avoids required modification of patented product molds and packaging as the features of the patented article change, new patents are secured, patents expire or formulations are modified.  Proper and consistent marking allows collection of damages from infringers from the date marking begins, as opposed to when the infringer is actually contacted directly by the patent owner, which can make a huge monetary difference for the patent owner’s collection of damages.

Virtual and traditional patent marking in the United States provide notice to the public that a product is patented or a patent is pending.  If a patent owner does not mark the product, the patent owner is typically not entitled to collect damages from an infringer until the accused infringer has actual notice of the patent.  Actual notice occurs when the patent owner literally notifies the accused infringer of their infringement by letter, filing a complaint in federal court or other direct notification.   

Traditional patent marking requires a patent owner to physically mark a patent number on the patented article or related packaging.  Each product is traditionally, therefore, individually marked with a patent number(s), patent application publication number(s) or a patent pending designation.  Modifications to products and related packaging can also be problematic in heavily regulated industries, where products and packaging are closely regulated and monitored, such as by the Food and Drug Administration.  A company’s patent portfolio and products must be constantly supervised to ensure patent numbers, patent application publication numbers, packaging, labels and product details are up-to-date and properly associated.  Consistent tracking is required because of the dynamic nature of patents, which expire, patent applications, which issue or change in scope, and products, which are often numerous, redesigned or improved.  Tracking a company’s full patent, product and service portfolio is a time consuming and expensive undertaking.  Mistakes in tracking and failure to track have led to products being marked with incorrect patent information, which can result in a false marking lawsuit.

Virtual marking reduces the costs and burden of traditional marking by permitting uniform marking of patented articles or related packaging with a single URL for all products.  All of a company’s products may be marked by printing a single URL, such as http://www.companyZ.com/patents.htm, on all of the company’s products, labels and/or packaging.  The URL directs the consumer to a free, publicly available website where products and associated patents are listed.  Instead of physically changing the patent markings on products and/or product packaging, the website is modified when new patents issue, patents expire, features of the product change, patent scope changes, patent applications are modified in their scope, etc.  The free, publicly available website provides accurate patent and product associations to the consumer and savings from virtual patent marking can ultimately be passed on to the consumer.  Examples of virtual patent marking include:

For manufacturers who have growing patent and product portfolios, particularly where changing labeling based on the constantly shifting patent and product portfolio is cumbersome, now is the time to start virtual marking.  Virtual patent marking reduces the burden making frequent changes to products and packaging and provides accurate notice to infringers, permitting collection of damages from infringers as soon as the products and/or packaging are virtually marked.

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