Patent Marking Has Gone Virtual – Or Has It?

Patent Marking Basics –

The patent statutes for many years have required patented articles to be marked as such.  Although many variations exist, the essential elements are simply that the patented article should be marked with the word “Patent” or the abbreviation “Pat.” together with the number of the patent.  Variations include adding the country, such as “U.S. Patent” and then the number of the patent, indicating that the patent is a design patent (although the D designation in the patent number is usually sufficient), indicating that there are “other patent(s) pending, etc.  A quick walk through a Big Orange or a Big Blue home improvement store will reveal more products marked in this way than Carter has Liver Pills1. There are also penalties for false marking, marking a product with an expired patent in an attempt to ward off the competition, or otherwise not providing truthful and constructive notice to the public of your patent rights.

Failure to Appropriately Mark

If an article is not appropriately marked or there are no markings whatsoever, effective notice is not given to the public, and such a failure will preclude the recovery of damages for infringement until such time as effective notice is given.  Effective notice may be in the form of proper markings, a written notice, or filing an action for infringement.  Simply put, the cost to not properly mark can be significant in terms of lost revenue and the inability to enforce patent rights, both of which are strong motivators to mark your products.

Along Comes the America Invents Act (AIA)

The Leahy-Smith America Invents Act (AIA) was signed into law on September 16, 2011, resulting in sweeping changes to the U.S. patent system.  Among these changes was an amendment to 35 U.S.C. §287(a), the section of the law that defines how constructive notice is given to the public that an article is patented.  The amendment allows patented articles to either be physically marked or “virtually marked.”  Virtual marking provides an alternative to physical marking where the article is instead marked with the word “patent” or the abbreviation “pat.” followed by an internet address that associates the patented article with the number of the patent.

The Reasoning Behind Virtual Marking

The virtual marking amendment was proposed by Congress as a way for manufacturers to save the ongoing expense associated with changing tooling, product materials, packaging, etc. as new patents issue and old patents expire.  Instead of new tooling and inventory updates to indicate a patent number change, the manufacturer can now simply update a web site with the current patent information.   Another reason given for the virtual marking amendment is to facilitate the effective marking of small products.

How to Implement a Virtual Marking Program

On the surface, it seems straightforward.  Simply mark all of your patented products with the words “patent”, but of course, chose your own web address that takes the user to a page that lists your patents.  There are many examples of companies that have implemented virtual patent marking, but strangely, virtual marking is still not the runaway success that would have been expected like most things that are Internet based.  While in 2014 the United States Patent and Trademark Office issued a report to Congress (as was required as part of the AIA) concluding that “virtual marking has likely met its intended objectives of reducing manufacturing costs and facilitating public notice in certain situations,”  many companies are still hesitant to implement a virtual marking program.

Some Areas of Concern

Court cases and guidance from the USPTO are two ways in which patent laws are further defined. There is not currently a lot of guidance from either area.   The virtual marking statute says simply:

“…by fixing thereon the word “patent” or the abbreviation “pat.” together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent, or when, from the character of the article, this cannot be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice.”2

So without further guidance from court decisions or the USPTO, interpreting this language, although seemingly straightforward, is not.  For example, what constitutes an “address of a posting on the Internet”?  Does a QR code or a bar code qualify, or must the address be readable by a human instead of a machine even though a web address requires a computer to transform the web address into the desired information (the patent number(s))?

There are other challenges as well.  What is to be considered “accessible to the public without charge for accessing the address”?  Can a company require the public to register on the website before providing the required patent information?  What about requiring personally identifiable information in order to access the address?  Is that considered a charge, or is a charge purely a monetary charge?

There are also privacy and security issues.  With the prevalent use of cookies, a record can be kept of who is accessing the web address and what information they are retrieving.  Does this concern limit proper notice to the public of the patented article, as the public may be hesitant to engage in accessing the provided internet address over privacy and security concerns.

And the implementation details continue.  What is to be considered proper association of the patented article with the number of the patent?  Should each product be listed with their associated patent numbers directly below, in a table of sorts?  Should the patent number come first with the products listed below each number?  What about adding information about the product to the contents of the website or adding advertising? What about links to other Internet locations? How accessible does the patent information need to be?

A simple and straightforward implementation of a virtual marking program “should be” trouble free, but like all things Internet, complexities exist, a few of which are mentioned above.  An awareness of these complexities is important, but should not be a reason to avoid implementing a virtual marking program.  Ensuring that the information associating product with patent number is both easy to access and kept current are simple yet extremely important concepts, should your company be considering a virtual marking program.

GRAPHIC  CREDIT:  “Nothing Virtual About Raking Leaves”.  Robert Gunderman.

1   A nearly obsolete expression dating back to Carter’s Liver Pills, formulated as a patent medicine in 1868 by Samuel J. Carter of Erie, PA.  (A patent medicine in this case has nothing to do with patents, but rather is an elixir, tonic or liniment of unproven effectiveness and whose contents were not completely disclosed. Think snake oil.)

2   35 U.S.C. §287(a)

Authors Robert D. Gunderman P.E. (Patent Technologies, LLC and John M. Hammond P.E. (Patent Innovations, LLC are both registered patent agents and licensed professional engineers.  Copyright 2019 Robert Gunderman, Jr. and John Hammond

Note:  This short article is intended only to provide cursory background information, and is not intended to be legal advice.  No client relationship with the authors is in any way established by this article.


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