BizTech Law Blog
We have all seen patent numbers marked on all kinds of products. In fact as I sit and write this article I can report that there are several items in my office with patent markings including my hole punch, stapler, Dictaphone and the insoles in my shoes.
So why is that? There has got to be a reason, right?
The reason is that if products are not appropriately marked before they enter the stream of commerce, the damages that the manufacturer can receive in a patent infringement action against someone that has copied that product are reduced. 35 USC §287(a) provides:
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 when, from the character of the article, this cannot be done, by fixing to it, or to the package wherein one or more of there is contained, a label containing a like notice. In the event of failure to so 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.
It is important to note that §287(a) only applies to “patented articles.” §287(a) does not apply when a patent is directed to a process or method. As long as the patentee is not selling a patented article without appropriate markings, §287(a) does not apply to restrict the time for which damages are calculated.
So, the reason we see patent numbers on so many products is that patentees should take care to comply with §287(a) because a failure to do so limits the ability of the patentee to collect damages for infringing activity prior to the infringer receiving actual notice of the patent. If you have patents on products that you make or license, you should establish marking and review procedures with the assistance of patent counsel to maximize the value of your intellectual property.
