Patent Information

Why Patent Markings are Valuable
 

Under US law, proper patent markings provide two benefits: (1) damages for third party infringement of a US patent accrue from the start of infringement (instead of the date on which a cease and desist letter is received by the infringing third party) and (2) it shows your competitors that you are taking a sophisticated approach to IP protection.  Using virtual patent marking enables you to use a single marking on your products that doesn’t change as patent applications are filed and patents issue.

​​​

General Requirements
 

Virtual patent marking requires two components: (1) a marking on each product, or on each product package where marking the product is not possible or impractical, and (2) creating and maintaining a webpage which associates the products with the patents and patent applications that cover them.  More detail on each of these requirements is provided below.

​

Product markings
 

We recommend that you use the URL “[your domain name]/ip” to display your IP information on your website and include the following marking on your products:  “Pat. [your domain name]/ip”.  As explained in greater detail in the following paragraph, ideally, the marking “Pat. [your domain name]/ip” should be affixed to the products themselves.  If this is difficult, marking product packaging is likely to be acceptable.  Contact us if you have any concerns about marking placement.

​

The only statutory requirement in terms of the location of the marking is that it be “affixed” to the product.  In keeping with the “notice” function of the marking requirement, we recommend that the marking be positioned on a surface of the product that will be visible when the product is sold to the end user.  It is preferrable that the marking be permanent (e.g., etched or molded into a part) – however, a label could be used in situations in which more permanent marking techniques are impractical or costly.  The marking statute also states that when, “from the character of the article, this cannot be done”, compliance can be satisfied by “fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice.”  Courts have found patent owners to be compliant with the marking statute when they use a label on the product packaging even in scenarios where it is technically possible to “affix” the marking to the product itself, as long as the marking on the product packaging still gives “notice to the public” that the product contained in the packaging is covered under a patent. 

​

Webpage

There are three important aspects of the web page.  First, it must be located at the publicly available URL that is used as part of the patent marking on the product (e.g. [your domain name]/ip) or redirect the user to the URL on which IP information appears.  Secondly, it must contain a list of the issued patents and pending applications owned by you or your company.  Thirdly, it must associate each patent with the product(s) covered by that patent (if any).

The following are examples of web pages for virtual patent markings:

​

Patents | HAT Design Works (a client of our firm)
Gentex Corporation | Virtual Patent Marking (a former client of our firm)
Virtual Patent Marking (rapiscansystems.com) (no relationship with our firm)

We also recommend using the web page to identify your pending patent applications and registered and unregistered trademarks.  Optionally, you could also include foreign patent grants on the web page.  There is no legal advantage to including this additional information but it will further the benefit of showing your competitors that you have a sophisticated IP strategy.
 

 

​