Don’t Miss the (Patent) Mark – What is “Patent pending”?

Patent marking is providing information on a product that describes which patents or applications are applicable to the product.  Patentees who make, offer for sale, sell, or import any product covered by the patent should mark the product.  After spending time, money, and effort on obtaining patent protection for an invention, patent marking will help protect this investment from infringers.

Patent marking can include “Patent [Number]” or “Pat. [Number]” where the applicable patent number or numbers are included. Additionally, “virtual marking” may be used to mark the patented article with “Patent [Website]” or “Pat. [Website]” where [Website] is an Internet address that the public may freely access without being charged. The patent mark must be “fixed” on the patented product. If the type of product prevents fixing notice to the patented product itself, the product’s packaging should be marked.

Products may be marked with “Patent Pending” once a U.S. Patent Application, including a provisional patent application, covering the product is filed.  Since patentees may only obtain damages from an infringer dating back to when the infringer first had “notice” of the infringement and still continued to infringe, marking the product gives the infringer constructive notice. Without marking, a patentee may only collect damages from the time the infringer received an actual notice, such as a warning letter, from the time of the filing of an infringement suit.  So don’t miss the mark and let infringers hit your invention.