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Can Prior Approved Patents Use Virtual Marking?

James Burnes

Article written by:

James Burnes

PatentStatus - Founder & CEO

One of the areas lacking clarity with the issuance of the America Invents Act and Section 16 – Virtual Marking is which patents can use virtual marks. There has been some confusion or perhaps, questioning, if patent holders who have patents issued prior to the effective date can use virtual marks for their portfolio.

The law reads:

(2) EFFECTIVE DATE – The amendment made by this subsection shall apply to any case that is pending on, or commenced on or after, the date of the enactment of this Act.

It is unclear if “case” might refer to to litigation, or actual live (approved) patents? If so, the ability for virtual marking to be used for just newly issued patents will greatly reduce it’s use for many years to come.