I have been scouring the America Invents Act for provisions that hopefully can save patent holders money.
One provision that may result in savings to patentees relates to “Virtual Marking”.
Many current holders of U.S. patents may be marking patented products with the word “patent” and a patent number of a U.S. Patent reading on the product.
Generally speaking, “marking” legally permits patentees to recover damages against infringers for conduct occurring before the infringers are notified that they are infringing.
From a manufacturing point of view, marking a physical product with a specific patent number can be expensive. The expense is further compounded by the fact that the marking may need to be changed or removed, since patents often are invalidated and eventually expire.
In addition, a single product may be covered by a series of patents which issue sequentially over a lengthy period of time. Products may be produced marked with currently issued patents, and then for subsequent production runs, more issued patent numbers may need to be marked on the products.
The recently enacted America Invents Act appears to address the expense of marking by providing for “Virtual Marking”.
Instead of marking a patented product with the word “patent” and a specific patent number, a patent holder can mark a patented product with the word “patent” –
“…together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent…”
At first glance “virtual marking” merely appears to offer a superficial alternative, since instead of marking the product with “patent” and a patent number, one may be able to mark the product with the word “patent” and an address of a posting on the Internet.
However, if a patent is invalidated, expires, or further patents need to be added, it is very easy to change an internet web page, whereas to change a physical product is much more expensive.
“Virtual Marking” offers the possibility of reducing patent related costs, however any “virtual marking” program should be set up and reviewed by a patent attorney, such as Walter J. Tencza Jr., Esq., PATENTNOW.COM®, to ensure that the “virtual marking”
program complies with patent law marking requirements.
