The America Invents Act (AIA), signed into law on September 16, 2011, introduced significant updates to patent marking. The provisions for virtual patent marking and false marking became effective immediately, providing new options and protections for patentees.
Virtual Patent Marking
Patent damages generally begin to accrue only when a patentee notifies an infringer of the infringement. Alternatively, a patentee can give constructive notice by marking the product with “pat.” or “patent” and the associated patent number. However, updating molds or printing plates when patents change or expire can be costly and cumbersome.
The AIA introduced virtual marking, allowing products to be marked with “pat.” or “patent” and a web address accessible to the public. This webpage must list the patent numbers covering the product. When updates are needed, modifying the website is much easier than changing physical markings. Although not required by law, keeping records of any updates to the patent list can help establish when constructive notice was given for specific patents.
False Marking
Before the AIA, anyone could sue a company for false marking, leading to numerous lawsuits, often seen as exploitative. The AIA revised this by restricting who can bring false marking claims. Now, only the United States government or someone who has suffered a competitive injury can file a false marking claim. This effectively closed many pending lawsuits based on false marking. Additionally, the AIA clarified that marking a product with an expired patent is not a violation of the false marking statute.
If you have questions about patent marking or want to discuss your intellectual property needs, contact me at (949) 433-0900. As an Irvine patent lawyer, I serve Orange County, Irvine, Los Angeles, San Diego, and surrounding cities. Feel free to share this article with others who might find it helpful.