As practitioners know, U.S. patent law provides for the recovery of patent infringement damages for a period of time when an infringer has actual or constructive notice of the infringed patent. Actual notice is provided by way of letter or similar mechanism to the infringer after infringement has begun. Constructive notice can be provided by placing the patent number on the patented product. Such constructive notice provides notice to the infringer of the existence of a patent prior to actual notice, thereby extending the time period for recovering damages up to the date the infringement begins.
Under the America Invents Act (“AIA”), constructive notice of the existence of a patent can now be provided pursuant to 35 U.S.C. § 287(a). Such notice is accomplished by “fixing on” or “marking” a patented product with the term “patented” or the abbreviation “pat” together with an Internet address accessible to the public without charge and that associates the patented article with the patent number.
With Virtual Marking, the need to modify labels or the product as patents issue or expire can be addressed simply by editing the list of associated patent numbers on the publicly available web page. Thus, the time and expense of modifying labels and product molds bearing patent numbers are a thing of the past. Virtual Marking became law on September 16, 2011. Congress has directed the USPTO to submit a report on virtual marking no later than September 16, 2014, which will analyze the effectiveness of 35 U.S.C. 287(a), the impact of virtual marking on public access to patent information and any issues (legal or otherwise) created by virtual marking.
Charles A. Gaglia, Jr. is Counsel to the Gibbons Intellectual Property Department.