The America Invents Act was signed into law on September 16, 2011. The virtual patent marking and false marking provisions became effective immediately.
Patent damages do not begin to accrue until the patentee accuses the infringer of infringement. In the alternative, the patentee may give constructive notice by marking the product with “pat.” or “patent” and the patent number. When patent coverage changes or patents expire, it is often difficult to modify the molds and printing plates to reflect such changes.
Under the AIA, virtual marking is now permitted. The product may be marked with “pat.” or “patent” and a free-to-access web address. The webpage at the web address must identify a product covered by one or more patent numbers. When the patent list needs to be modified, the web page can be easily modified. The Act does not require it but it would be prudent to maintain records of any changes to the patent list to corroborate the date when constructive notice for a particular product and patent was given.
Previously, anyone could sue a patentee for false marking. Unfortunately, many attorneys were taking advantage of the old law and suing companies for false patent marking. Under the AIA, only the United States or someone with a competitive injury can sue a patentee for false marking. This has effectively closed numerous false patent marking pending lawsuits. Moreover, the AIA clarifies that marking a product with an expired patent is never a violation of the false marking statute.
I invite you to contact me with your patent questions at (949) 433-0900 or [email protected]. Please feel free to forward this article to your friends. As an Irvine patent lawyer, I serve Orange County, Irvine, Los Angeles, San Diego and surrounding cities.