Best Practices - Patent Marking - Why We Recommend It

Under U.S. law, patent marking is optional. One may ask, well, then why do it? The short answer; damages. If one wants to collect damages, one must give notice that an article is patented. The notice can be actual or constructive. Actual notice is a served lawsuit complaint or the sending of a cease-and-desist letter. Constructive notice is patent marking complying with the marking statute. Patent marking can be either physical, i.e., on the product, or virtual, i.e., on the website. This simple example will help illustrate the difference patent marking can make in available damages.

“Company A” properly marks the product it is producing and selling shortly after obtaining its patent. “Company B” does not. An infringer starts selling the patented product unbeknownst to company A or B. The companies eventually find out about the infringement sometime later after the infringement began. The companies speak to their legal counsel to get an opinion of infringement, and, when they do, they either send a cease-and-desist letter to the infringer or file suit.

Assuming infringement is found, “Company A” can obtain damages all the way back to the date it gave constructive notice, i.e., started properly marking its product. “Company B” can only obtain damages from the date it gave actual notice, i.e., sent its cease-and-desist letter or served its complaint. One can imagine how significant this may be to the amount of damages available.

Want to know more? Please let us know.

  • Natalie D. Kadievitch

    Natalie is a resident shareholder practicing in the area of intellectual property law with an emphasis in patent prosecution and client counseling. Natalie is a registered patent attorney and focuses her practice in the areas of ...

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