Ensuring Proper Notice : Clearing the Fog Surrounding Virtual Patent Marking

Ensuring Proper Notice : Clearing the Fog Surrounding Virtual Patent Marking

Journal article

60 pages

In 2011, the America Invents Act introduced the option for patentees to use “virtual marking” websites in place of physical marking to provide notice to the public of their patents. This option was created to lower costs for patentees and to facilitate easier marking on small products. However, this option has not seen widespread adoption, likely in part because the statutory requirements for virtual marking are unclear. Specifically, it is not clear what constitutes a “posting” and what it means to “associate” a patent number with a patented product. This article examines other areas of the law to extract basic principles of digital notice and registration notice. These principles underpin three proposed clarifications to the virtual marking requirements: first, that any virtual marking “posting” should be a single web page; second, that to “associate” a patented product with a patent number, the patentee must specifically connect each product to the patents it employs; and third, that patentees should also be required to include the title of each patent along with its number on any virtual marking web pages.

Published in : Creighton Law Review, vol. 54

[Omaha, Nebraska] : Creighton University School of Law, 2020.

eng