The United States Patent and Trademark Office recently issued a report on the effectiveness of virtual patent marking.
Despite receiving virtually no comments from the public (it received only nine comments), the USPTO concluded that virtual patent marking has met its objectives of:
- Reducing manufacturing costs;
- Facilitating marking of small items; and
- Improving the public’s access to patent information.
Failing to mark a patented product with the applicable patent marking may limit or prevent a patentee from recovering infringement damages that occurred before the infringer had actual notice. Prior to the America Invents Act, the law required marking the product with the actual patent numbers covering that product. Virtual marking now allows marking the product with the word “patent” or “pat.” together with an Internet address that is accessible to the public and associates the patented article with a patent number.
The USPTO report stated that one benefit of virtual marking is “to provide a real-time, complete list of associated patents, and to include additional patent-related information.” Callaway Golf, for example, noted that virtual marking has saved costs and reduced waste because it does not need to update its packaging with the specific patent numbers. Kimberly-Clark also indicated that virtual marking was beneficial in terms of costs and keeping information current.
The USPTO report notes that virtual marking is still in its infancy and may require some further clarification on certain issues. Implementing a virtual marking program is a useful tool to effectively mark your products and reduce costs. Virtual marking programs are a cost-effective alternative to the traditional patent markings, and businesses should give strong consideration to implementing such programs.