Virtual Patent Marking

Effective September 16, 2011, 35 U.S.C. 287(a) updated by the America Invents Act (AIA) allows patent owners to effectively mark their products with a single “virtual patent marking” comprised of the word “Patent” (or “Pat.”) together with a URL address accessible to the public that associates the patented article with the number of the patent.  This benefits companies by not having to update molds every time they are granted a patent for a product.

New 35 U.S.C. 287(a)

The new 35 U.S.C. 287(a) specifies the following:

Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent, or 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 can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice. In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.

Example of Virtual Patent Marking

To comply with the virtual patent marking requirements of 35 U.S.C. 287(a), a patent owner must mark their product with the word “Patent” or “Pat.” together with the URL address of the posting on the Internet that is accessible to the public.  Below are some examples of virtual patent markings that may be conspicuously fixed on the patented article:
  • Patent
When an individual enters the URL address for the virtual patent notice page, a web page is displayed listing the patents for each product sold by the company.  On the web page, you could use the following format for your virtual patent notice:
Virtual Patent Marking Notice by [COMPANY LEGAL NAME] The following products are protected by patents in the U.S. and elsewhere for [COMPANY LEGAL NAME]. This website is provided to satisfy the virtual patent marking provisions of various jurisdictions including the virtual patent marking provisions of the America Invents Act and provide notice under 35 U.S.C. §287(a). The following list of products and patents may not be all inclusive. For example, some products listed here may be covered by patents in the United States and elsewhere that are not listed, and other products not listed here may be protected by one or more patents in the United States and elsewhere. The following list of products may be covered by one or more of the following U.S. Patents (you can include “Patent Pending” if you also have a patent application pending):
Product Name Patent Number(s)

Examples of Virtual Patent Marking Web Pages

Below are some good examples of virtual patent marking web pages:
    Notice that the PDF download files indicate the last time the file was updated which is recommended to use on your virtual patent notice.  It is also important to keep dated records of all versions of your virtual patent notice as evidence in later litigation in both printed paper form and electronic form saved in a secure location (this is where dated downloadable PDF files can serve as important evidence.)