Understanding Patent Marking Under 35 U.S.C. § 287 – Patent

Under 35 U.S.C. § 287, often referred to as the patent
marking statute, there exists a critical framework for patent
owners in the United States regarding the marking of patented
products. This statute outlines the patent marking requirements,
emphasizing the importance of properly marking products to ensure
that damages may be recovered in instances of infringement.
Specifically, it details how patent owners should mark their
products, either by physically affixing the patent number directly
onto the product or its packaging, or through virtual marking,
which involves providing a web address accessible to the public
where the patent information can be found.

Virtual Patent Marking and Traditional Methods

Introduced by the America Invents Act, virtual patent marking
offers a modernized approach, permitting the use of a web address
where the patent information covering the product can be found.
This method stands as an alternative to the traditional physical
marking, which involves fixing the word patent or the abbreviation
‘pat.’ followed by the patent number directly on the
product or its packaging. The law specifies how to do virtual
marking, like “Patent: www.example.com/patent” or
“Pat.: www.example.com/patent.” Virtual patent marking
thus makes patent marking examples more accessible to the public,
aligning with the statute’s aim to provide notice to the public
efficiently.

Essence and Types of Marking

The essence of patent marking, as delineated in 35 U.S.C. §
287, is to provide notice to the public of the patent protection on
any patented product. This notice serves a dual purpose: it informs
potential infringers of the patent, thereby deterring infringement,
and it ensures that damages may be recovered by the patentee in
cases where infringement continues even after the infringer was
notified. The statute specifies that without proper marking,
damages can only be recovered for infringement that occurs after
the infringer was directly notified of the infringement and
continued to infringe.

Marking Requirements and Enforcement

Marking requirements are crucial for ensuring that the public is
adequately informed about the patent status of products available
in the United States. Any patented article imported into or sold
within the United States must be appropriately marked to facilitate
this notice. Failure to adhere to these requirements means that
damages may be recovered only for infringement that occurs after
the infringer has been explicitly notified of the infringement and
has continued to infringe.

Conclusion

In conclusion, the patent marking statute (35 U.S.C. § 287)
lays down comprehensive rules for the labeling of patented products
in the United States. It emphasizes the importance of either
physical or virtual patent marking as a means to notify the public
and potential infringers about the patent status of products. By
mandating that any patented article sold or imported into the U.S.
be adequately marked, the statute aims to protect patent
owners’ rights, encourage transparency, and provide clear
warnings to deter infringement and continued unauthorized use.

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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.