Virtual Patent Marking

Providing Notice of Patented Products Online

Patent owners have a legal incentive to mark their products with patent information to put the public on notice of their patent rights. Traditionally, this meant stamping or labeling products with patent numbers. However, virtual patent marking is a modern alternative that allows businesses to use a website to list associated patents for their products. This method was introduced by the Leahy-Smith America Invents Act of 2011 to simplify compliance with patent marking laws. Virtual patent marking is important because it provides the ability to recover damages from infringers and notice to the public in an efficient way.

Patent Marking and Its Purpose

Patent marking serves to give notice to the public that a product is protected by one or more patents. Marking a patented product (or its packaging) with the word “Patent” (or “Pat.”) and the patent number notifies others that the product is patented. Under U.S. law, this satisfies the constructive notice requirement, meaning that potential infringers are deemed aware of the patent, even if they are not actually aware of the patent. Constructive notice provides the patent owner with the ability to claim damages from the earliest possible date of infringement. Without proper marking, the patent owner may lose substantial damages for past infringement.

Shift to Virtual Patent Marking

Before 2011, U.S. law only allowed physical marking: marking the product or its label with patent numbers. The America Invents Act (AIA) changed this by adding virtual marking provisions to 35 U.S.C. § 287, the patent marking statute. Virtual patent marking allows patent owners to use the internet for providing patent notice. Instead of listing long patent numbers on the product, a company can mark the product with the word “Patent” or “Pat.” followed by a URL (web address) of a publicly accessible webpage that lists the relevant patents. This amendment was intended to modernize the marking process for the digital age, making it easier to update patent information and handle products covered by multiple patents. By introducing virtual marking, the AIA enabled businesses to efficiently provide patent marking notice without repeatedly altering product molds or packaging every time patent information changes.

Virtual Marking under 35 U.S.C. 287

The U.S. marking statute, 35 U.S.C. § 287(a), now explicitly permits virtual marking. It states that a patentee may give notice that an article is patented “either by fixing thereon the word ‘patent’ or ‘pat.’ together with the number of the patent, or by fixing thereon the word ‘patent’ or ‘pat.’ together with an address of a posting on the Internet, accessible to the public without charge, that associates the patented article with the number of the patent”. In other words, you can either stamp the patent number on the product or simply mark the product with a web address where the patent numbers are listed. If marking the product itself is not possible, e.g., due to size or nature of the article, the statute allows marking the packaging in a similar way. The virtual patent marking notice on the product typically looks like: “Patent: www.YourCompany.com/patents” or some other format. As long as the referenced webpage clearly associates each product with its applicable patent numbers, this constitutes proper notice under the law.

Crucially, the statute also provides a practical penalty for not marking: “In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter.” In plain terms, if you don’t mark your patented product, either physically or virtually, you cannot recover damages for infringement that happened before the infringer received actual notice of the patent, such as by formal notice letter or being served in a lawsuit. Patent owners are wise to mark products, as doing so provides constructive notice and preserves the right to recover full damages for past infringement.

How to Implement Virtual Patent Marking

Adopting virtual patent marking is straightforward and cost-effective. Here’s how a business can implement a virtual marking program:

1. Create a Dedicated Patents Webpage: Set up a page on your company website (e.g., yourcompany.com/patents) that will list your products and the associated patents for each. Ensure this page is publicly accessible without any login or fee.
2. Mark Products or Packaging with the URL: Physically mark each patented product or its label/packaging with “Patent” or “Pat.” followed by the URL of the patents page. For example, a label might read “Patents: yourcompany.com/patents”. This short URL on the product serves as the pointer to your patent list.
3. List Products and Patent Numbers on the Webpage: On the webpage, provide a clear list of products and their patent numbers. For each product (identified by name or model number), list all applicable patent numbers (e.g., “U.S. Patent No. 10,000,000; 10,123,456”). If a product is covered by multiple patents, which is common, list them all. This directly associates the patented article with its patents, as required by § 287(a). Make sure it’s easy for a reader to find which patents cover which product. The page should not be so vague that it forces a treasure hunt for the information.
4. Include Other Helpful Notices: Many companies also add statements like “Patent(s) Pending” for products that have patent applications filed but not yet issued. “Patent pending” does not confer any legal rights or damages. You cannot sue or collect damages until a patent actually issues, but including it can warn competitors that patent protection is being pursued. Just remember to update the status once patents are granted. It’s also common to include a disclaimer that the patent list may not be exhaustive, since new patents might issue.
5. Keep the Page Updated: Maintaining the patent webpage is an ongoing process. Add new patent numbers when patents issue on your products, and remove patents that expire or no longer cover the product. The beauty of virtual marking is that it is easy to update patent information in one place. Failing to include a patent on the list means you might not be able to claim damages for infringement of that patent until you fix the notice. For example, if you forget to list a patent, an infringer could argue they had no notice of that patent and avoid pre-notice damages. So, ensure all patented products have all their patents listed. Regularly review the page for accuracy.

By following these steps, even companies with many patents or frequently updated patent portfolios can efficiently comply with the virtual marking provisions.

Benefits of Virtual Patent Marking

Virtual patent marking offers several key advantages over traditional marking:

• Easier Updates: With a web page, you can dynamically update patent listings without altering the product design or packaging. This is especially useful if you obtain new patents, if patents expire, or if you add new products. No need to reprint labels or molds each time, just update the website.
• Cost-Effective: It reduces manufacturing costs and hassle. For products with long lists of patent numbers, printing them all on the product or packaging can be impractical. A URL is much shorter and neater. Updating a website is far cheaper than retooling a production line.
• Comprehensive Listing: You can list one or more patents for each product, and even include global patent information or pending applications. The webpage can note patents in various jurisdictions (e.g., U.S., Europe, etc.) if relevant. This way, a single web page can provide notice of all patents protecting the product worldwide. Many companies include language like “protected by one or more patents in the U.S. and other countries” to cover various jurisdictions.
• No Space Constraints: For small products or those with limited packaging space, virtual marking is a savior. Rather than trying to fit tiny text of numerous patent numbers on a device, you just affix a short URL. This also avoids situations where adding a new patent number would overcrowd a label.
• Reduced Risk of False Marking: Because it’s easy to update the list, virtual marking helps patent owners avoid false marking issues, which occur if you mark a product with an incorrect or expired patent number with intent to deceive. Prior to AIA, false marking, e.g., marking with expired patents, could incur hefty penalties under 35 U.S.C. § 292. Now, only the U.S. government or a competitor can sue for false marking. The AIA removed the old qui tam lawsuits, but it’s still good practice to keep markings truthful. Virtual marking makes it simpler to promptly remove expired patents from the notice. In short, it provides flexibility while ensuring the notice remains accurate.

Overall, virtual marking provides the same legal benefit of constructive notice under § 287 as physical marking with more convenience and clarity.

Compliance and Best Practices

To get the most out of virtual patent marking, companies should follow some best practices to ensure the notice is effective and legally sound:

• Clear Association: The patent webpage must clearly match each product with the relevant patents. A generic list of patents without identifying products is not sufficient. For example, simply listing a bunch of patent numbers on your homepage would not give clear notice. Courts expect that a person can quickly find which patents cover which product on the webpage. Use product names, SKUs, or pictures alongside patent numbers if needed.
• Public Accessibility: The URL must be accessible to the public without charge or special permission. Avoid any password protection or paywall. The whole point is public notice. Also, the link should be stable, if you redesign your website, make sure the patent listing remains available at the advertised URL or set up a redirect.
• Marking the Product Properly: Ensure that the marking on the product or its packaging actually contains the word “Patent” or “Pat.” and a URL. Just a URL by itself might not be obviously a patent notice. Best practice is to use a phrasing like “Patents: company.com/patents” so there is no ambiguity that this is a patent marking notice. This small detail can make a difference if the adequacy of notice is ever challenged.
• Consistency and Coverage: Mark all units of the patented product that are being sold. In the context of physical marking, courts have held that substantially all products need to be marked for the notice to be effective. The same logic applies to virtual marking: if you mark some units with the URL but not others, you may jeopardize the consistency of notice. Integrate marking into your manufacturing or packaging process so that every item or its box leaves with the patent URL on it.
• Monitor Licensee Compliance: If you license your patent to others who make or sell the product, you, the patent owner, are responsible for ensuring those licensees mark the products. This can be handled by contract, e.g., by including a clause requiring licensees to mark, and perhaps allowing you to inspect or verify their compliance. A licensee’s failure to mark can hurt you: if your licensee sells unmarked patented products, you might lose the ability to claim damages for those sales. So, enforce marking requirements in your supply chain and licensing agreements.

By adhering to these practices, patent owners can maximize the benefits of virtual marking and avoid pitfalls that could undermine their patent rights.

Case Law Insights: Marking in Courts and Appeals

Over the years, several court decisions (especially in the Federal Circuit, which hears patent appeals) have addressed issues with patent marking – including virtual marking – reinforcing how important compliance is. Below are a few notable insights from case law:

• Damages Limitation and Burden of Proof: In Arctic Cat Inc. v. Bombardier Recreational Products Inc., 876 F.3d 1350 (Fed. Cir. 2017), the patentee lost out on a portion of damages because its licensee (Honda) had sold unmarked products. The court held that once an accused infringer identifies specific unmarked products that allegedly should have been marked, the burden is on the patentee to prove those products didn’t need marking or that it complied with § 287. In Arctic Cat, the license agreement with Honda stated that Honda had no marking obligations and the patent owner had not made other efforts to ensure Honda marked the Jet Ski products. As a result, the court found that the marking requirement was not satisfied, and Arctic Cat could not recover damages for infringement that occurred before they filed suit. The Federal Circuit emphasized that patent owners must require and monitor licensees to mark products covered by their patents; otherwise they risk losing significant infringement damages. This case is a clear warning: if you allow unmarked patented products on the market, you likely can’t claim past damages from any infringer of those patents during that period. Actual notice like a cease-and-desist letter or the lawsuit itself would be needed to start the damages clock.
• Protecting the Public’s Right to Notice: In Rembrandt Wireless Techs., LP v. Samsung Elecs. Co., 853 F.3d 1370 (Fed. Cir. 2017), the patent owner tried a clever tactic to avoid the marking requirement. Rembrandt’s licensee had sold unmarked products that were covered by one claim of a patent. When Samsung pointed this out to argue that pre-suit damages should be barred, Rembrandt withdrew (disclaimed) that particular patent claim, essentially saying “we won’t enforce that claim.” The Federal Circuit, however, rejected this workaround. The court stressed that the marking statute’s notice requirement exists to protect the public’s ability to rely on the absence of a patent notice. In other words, if a product isn’t marked, the public is entitled to assume it’s not patented and use or copy it without liability until a patent owner provides notice. The court held that a patentee cannot retroactively escape the marking rule by disclaiming patent claims after the fact. Such an “end-run” would undermine the purpose of the law. Consequently, Rembrandt lost the ability to collect damages for the period before actual notice was given. The lesson for patent owners is clear: you can’t circumvent the marking requirement.
• False Marking and Advertising: Although not directly about § 287, it’s worth noting a recent appellate decision highlighting honesty in patent marking claims. In Crocs, Inc. v. Effervescent, Inc., 119 F.4th 1 (Fed. Cir. 2024), the court allowed a false advertising claim to proceed under the Lanham Act where a company falsely claimed its product was protected by patents when it was not. Crocs had advertised a proprietary material as having patents pending or being patented, despite never obtaining a patent for that feature. The Federal Circuit found this could deceive consumers and competitors, constituting false advertising. The takeaway: only mark products with patents or pending applications that actually exist and cover the product. Misleading use of “patented” or “patent pending” can lead to legal trouble. 35 U.S.C. § 292 also prohibits marking products as “patent pending” or “patented” when they are not, if done with intent to deceive. So, accuracy in your patent marking, virtual or physical, is crucial.

These cases underscore that courts take the marking statute seriously. Proper marking, including via a virtual patent marking notice, is often a deciding factor in how far back you can recover damages in an infringement lawsuit. Patent owners should treat marking as an important part of their enforcement strategy, not an optional technicality.

Example of a Virtual Patent Marking Notice Page

What does a virtual patent marking page actually look like in practice? Typically, the page will start with a notice explaining its purpose, followed by a list of products and patents. Here is a sample format inspired by how companies implement virtual marking:

Patent Marking Notice (Pursuant to 35 U.S.C. § 287(a)):
The following products are protected by one or more patents in the U.S. and may be protected by patents in other jurisdictions. This website is provided to satisfy virtual patent marking provisions, including the virtual patent marking provisions of the America Invents Act. This page is intended to serve as notice under 35 U.S.C. § 287(a). The following list of products may not be all-inclusive – other products not listed here might also be protected by patents. Each product below is associated with at least one U.S. patent.

• Product A – U.S. Patent No. 9,876,543; U.S. Patent No. 10,123,456. (Additional patents pending.)
• Product B – U.S. Patent No. D555,555 (Design Patent); U.S. Patent No. 11,234,567.
• Product C – Protected by one or more of the following patents: U.S. Patent Nos. 8,111,111; 8,222,222; 8,333,333.

In the example above, the opening paragraph uses phrasing commonly seen on patent marking pages, fulfilling the virtual patent marking notice requirements. It mentions the America Invents Act and cites the statute to be explicit about providing legal notice. It also uses the phrases “one or more patents” and “various jurisdictions,” because often companies want to cover international patent rights and make clear that the list is not exhaustive. Each of the products listed is associated with specific patent numbers. Notice that even design patents (which have a “D” prefix) are included. Design patents should be marked too, in either the same list or a separate section, but the marking statute applies to patented articles of any kind (utility patents, design patents, and plant patents). Also, noting “patents pending” for a product does not give legal protection for those pending applications, but it informs readers that more patents might be coming. If any patent application later issues as a patent, that number should be added to the list promptly.

Conclusion

Virtual patent marking is a powerful tool for U.S. patent owners, combining legal compliance with maximized patent protection. Notice of patented products can be established via a simple website listing, thereby achieving constructive notice under the law without the downsides of lengthy physical markings. It is clear in cases like Arctic Cat and Rembrandt that failing to mark can be a costly mistake that is easily avoided through diligent marking.

If you have questions regarding virtual patent marking or other patent matters, please contact our offices for a free consultation.

© 2025 Sierra IP Law, PC. The information provided herein does not constitute legal advice, but merely conveys general information that may be beneficial to the public, and should not be viewed as a substitute for legal consultation in a particular case.