USPTO Has 3 Years to Evaluate Virtual Marking System
As part of the America Invents Act, the USPTO is charged with reviewing the effectiveness of virtual marks for business.
Per the USPTO web site:
Congress directs the USPTO to submit a report on virtual marking not later than the date that this is three years after enactment of the AIA, i.e., by September 16, 2014. This report will analyze the effectiveness of the new virtual marking provisions of 35 U.S.C. 287(a), which allows patent owners to mark their products with an internet address that provides the patent numbers associated with the product. The report will also analyze the impact of such virtual marking on public access to patent information and any issues (legal or otherwise) which virtual marking creates.
There has been nominal guidelines defined beyond the general AIA language permitting a virtual marking, namely:
§287 has been amended to allow marking with “patent” or “pat.” and “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.”
As such, it is recommended that you speak with your counsel about how to best proceed. We have provided a variety of documents within this Practitioners Guide to Patent Marking to help guide your strategy. As a general rule, the case laws that applied to marking matters before the AIA are still the rules of the game.