Also known as: patent markings · patent-marking · marking requirement · constructive notice
Written by attorneys · grounded in primary & secondary sources — see below
The incorporation or affixation of a patent number to a patented article's surface or surrounding packaging. Affixing the number supplies constructive notice of the patent rights to potential infringers. A patentee who fails to mark cannot recover damages for infringement occurring before the infringer receives actual notice of the patent.
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Progressive Healthcare manufactures a patented surgical tool and affixes the patent number directly to the sterile packaging. When a competitor begins selling an identical device, Progressive can seek damages only from the date the competitor received actual notice because the marking provided constructive notice to the market.
Prism Analytics embeds its patented sensor in a consumer device and stamps the patent number on the exterior housing. A rival company that copies the sensor after seeing the marked product on store shelves faces liability from the date of its first sale because the visible marking supplied constructive notice.
A manufacturer affixes the patent number to product tags on a line of goods. When a competitor sells identical items, the patentee can recover damages only after proving the competitor had actual notice because the marking on the goods gave constructive notice of the patent.
A rights holder places the patent number on licensed apparel tags. When an unauthorized seller offers identical items, the holder may recover damages only from the point of actual notice because the marked tags supplied constructive notice.
A property owner installs patented devices in rental units and marks the patent number on each unit's housing. When a competitor copies the design, the owner can claim damages only after actual notice because the marking on installed units provided constructive notice to industry participants.
A designer patents a fabric treatment and sews the patent number into garment labels. An infringer who copies the treatment after examining the labeled garments in retail stores becomes liable only from the date of actual notice because the marking on the garments supplied constructive notice.
Without marking, the patentee cannot recover damages for infringement that occurred before the infringer received actual notice of the patent. Marking supplies the constructive notice that starts the damages period.
Supporting sources
The number must be affixed to the surface of the patented article or to its surrounding packaging so that it is visible to users and competitors.
Supporting sources
…then belongs to the legislature to determine whether the case calls for this kind of exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal steps which are taken against him." In Happy v. Mosher , 48 id. 313, the court say: — "An approved…