Marking Patents

Recent markings enforcement activities have raised some questions related to the requirements of patent marking provisions. Generally, after a patent is issued by the United States Patent and Trademark Office, the patent owner may mark the patented articles with the word “Patent” or the abbreviation “Pat.” along with the patent number assigned by the USPTO. This marking of the patent number on the product constitutes notification of the patent, which is essential to a monetary recovery in a patent action. Although that patent statute states that a patent owner “may give notice” of the patent by marking the patented article, monetary damages for the infringement of an unmarked item can only be recovered from the time that the alleged infringer has been notified of the infringement by a cease and desist letter, by service of a summons and a copy of the complaint, or by other means. In such a case, if the alleged infringer ceases the infringing activity immediately upon notification, a monetary recovery could not be had at all in an infringement suit.

The law allows an applicant for a patent to mark the article for which a patent is applied for with the words “patent pending” or “patent applied for”; however, that designation has no legal significance. In addition, the use of such designations when no patent has been applied for is illegal and punishable by a fine.

The patent statute also penalizes other forms of false marking. One who is not a patent owner may not affix the patent marking on an article in order to deceive the public and induce the belief that the product is made with the permission of the patent owner. In addition, it is also illegal to affix a marking indicating that a patent has been issued on an unpatented article. The fine for affixing a false patent marking, indicating either that a patent has been applied for when it has not, or indicating that an item is patented when it is not, is $500 for each offense. In many cases, this can amount to $500 per item sold, manufactured or used. If a private individual sues for false marking, half the fine is payable to the person bringing the lawsuit, and the other half is payable to the federal government. The enforcement activities related to marking provisions can thereby be brought by the government or by private individuals on behalf of the government.

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