Virtually Everybody Should “Virtually Mark”
We’ve all seen them. Those old-timey looking patent stamps, branded on clever products, like this one, on a Nerf N-Strike Foam Dart Launcher:
Why do companies do this? Because a patent number, stamped in bold letters, looks impressive? Does touting patent coverage as a badge of honor (or, at least, unique utility or design), help to sell the product?
Yes, and Yes! Patent marking increases the perceived quality and value proposition of a product tremendously, and Products that are marked as patented sell more than unpatented products.
But these reasons, which we all naturally get, are not even the main reason companies MUST mark their patented goods.
Patent Infringement & Damages
In the United States, and in most other countries, you are not entitled to money for patent infringement unless and until you either: 1. Mark your goods with the patent number; or 2. Specifically notify each infringer that they are infringing, usually, with a cease-and-desist letter. In other words, even though you worked so hard to build and market your invention, and spent your hard-earned money to obtain a patent, you are not entitled to damages unless you take the added step of notifying the infringer that they are infringing.
The second option for notification is easily the worst of those two options. You would first have to be aware of all competitors that are infringing, immediately, and send those cease-and-desist letters, also immediately, or you lose the right to royalties for the infringement period before they are notified. Second, each of those cease-and-desist letters have to be prepared by experienced (read, “expensive”) patent litigation counsel, or you will likely threaten your patent rights, or even give the infringer grounds to sue you for a declaratory judgment of invalidity or non-infringement in the jurisdiction of their choosing (probably not your home state). In other words, a cease-and-desist letter (let alone a batch of them) is not a project to be undertaken lightly.
Marking, on the other hand, is relatively easy, and effective immediately. Anyone making an infringing product is responsible, minute number 1, if you have marked your own on-sale, covered product.
“Virtual Marking” on a Web Page
“But,” you protest, “marking products is not practical either! I have to change my tools, packaging, and even my plans for dinner, every time I get a new patent! And even then, I have to change them again when my patent expires, or I’m liable for false marking!”
Those are good questions. We’re glad you brought them up. But there is a simple answer. You’re wrong. While these used to be legitimate concerns with marking, new laws in the United States have superseded each of them. First, under these new laws, you are no longer required to immediately retool to remove outdated patent markings. Second, and more importantly, a new law in the United States allows us to “virtually mark” our products.
Rather than laboriously mark each product with each applicable patent number, in real time, virtual marking allows us to instantly update the list of applicable patents, on a special web page, known as a “virtual marking” web page. We can do that easily, not with a million-dollar line retooling, but with just a few clicks of the keyboard, on our own website. All we have to do is mark our goods with an effective web page URL, and update the latest patent list from there. It’s the much smarter, much easier, and, most importantly, the cool thing to do. Virtually everybody who’s virtually anybody is doing it. Just check out this hip virtual marking page from the virtual reality cool kids at Meta: https://www.meta.com/legal/quest/patents/
You too can join their ranks, with a customized, optimized, and, dare we say, pretty snappy virtual marking page by Beckman Law. Just drop us a line, below, and we’ll have it for you on in real time, with same-day turnaround, because, in the patent world, even one day can be millions of dollars!
