Understanding Patent Marking under 35 U.S.C. § 287

By Babak Akhlaghi on April 4, 2024

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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