PATENT OWNERS BEWARE:
INACCURATE PATENT MARKING CAN COST YOU
One of the proudest moments in a patent owner's life, next to receiving a patent grant from the U.S. Patent and Trademark Office of course, is the moment when the patent owner can mark his or her product as patented before releasing it into the streams of commerce. These markings signify more than the product's quality. They indicate exclusive ownership of the intellectual property embodied in the patented product and signal to customers that they have purchased something technologically unique. Many patent owners may not know that properly marking one's goods is more than a right bestowed on them by Congress; this right also imposes a duty of accuracy. More often than not, this duty is easily satisfied, but as recent court decisions make clear, violating this duty can result in unexpected litigation and significant fines that could have been avoided.
When placing goods within the streams of commerce, patent owners have the right to mark any and all goods protected by an unexpired U.S. patent. When more than one patent protects a good, the patent owner can satisfy this duty by placing the words "protected by one or more U.S. patents" on the good itself followed by the numbers of the applicable patents. When only one U.S. patent affords protection, the accepted practice is to conspicuously place the word "patent" followed by the patent number on the good so the public can investigate the scope of the applicable patent in light of what is being marketed. In this way, members of the public at large—whether they be customers, competitors, or potential infringers—are put on notice that the good cannot be freely copied. By providing notice to infringers when their goods are properly marked, patent owners can collect damages for any infringement occurring before the infringement is discovered.
