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Wealth of Ideas, May 2004
Did you ever notice a patent number on a product and
wonder why such marking was there? We are accustomed
to seeing patent numbers on almost everything, and here’s
why: by doing so, the patent owner informs the world
that the product is patented and thereby puts infringers
on notice of the patent rights.
Specifically, placing patent numbers on products (or
their packaging, if placement on the product itself
is impractical or impossible) is called patent marking
and is considered constructive notice. Constructive
notice is not a legal requirement, but it is to the
patent owner’s advantage. (If the patent owner
is not practicing the invention at all, there are no
products to mark and thus no marking requirement in
order to collect damages.)
If a product is produced and sold without patent marking,
the owner must resort to actual notice – notifying
the infringer(s) of the alleged infringement, usually
via a letter. Constructive notice is preferable to actual
notice for two reasons: 1) With actual notice, damages
only start from the date that notice is given; and 2)
A notice letter may expose the patent-holder to the
risk of a declaratory judgment action – a pre-emptive
strike wherein the infringer actually sues the patent-holder!
The moral of the story is this: If you have a patent,
make sure that your products (and your licensees’
products) are marked with the patent number. The question
of whether or not you mark can have serious consequences
for your ability to collect damages.
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