How should a virtual marking be displayed on articles or packaging?
Neither USPTO guidelines nor case law specify what format the virtual marking must be. The law only specifies that “Patent” or “Pat.” along with a “web address” must be clearly displayed. (Learn more about virtual patent marking URL options.)
Companies have taken two approaches to placing the marking on their articles:
- Where the article has limited space, only the virtual marking is displayed.
- Where space permits, including packaging or collateral as part of the product, the marking has generally been accompanied by language such as: “U.S. patents apply to this product. For details visit:” followed by the virtual marking.
There is one legal case, A to Z Machining Service, LLC et al. v. National Storm Shelter, LLC et al. that has declared what the virtual marking may not be.
In the decision, the court rejected a patentee’s argument that merely listing patents on its web site was sufficient to comply with the virtual marking permitted under § 287(a). The court explained “it is clear from the…statutory language that a website [address] alone would not satisfy the notice requirements under § 287(a), even if Defendants viewed the website.”
The court further held that a patentee must mark its product with the word “patent” or a suitable abbreviation and mark the website address on the product. The court stated that merely affixing the website address to the product, “without including the word ‘Patent’ or the abbreviation thereof, fails to give notice under this subpart.”
What does this imply? The virtual marking should direct the consumer or competitor to a specific part of the patentee’s web site that details patent-to-product information. The marking should not just refer to the homepage or an “innovation section” where users must search further to find related patent-to-product details (Learn more about how the virtual marking registry should be organized.).