The America Invents Act (AIA) provides for virtual marking as an alternative to physically marking to give notice to the public that a product is subject to patent protection.
As stated in the notice:
"United States patent law provides that marking a product with a patent number gives the public notice of a patent. Under 35 U.S.C. 287(a), if a patented product is not marked with the patent number by the patent owner, damages for infringement will be limited to the time period after the patent owner gives actual notice to an alleged infringer.
Section 16 of the AIA provides a new way to comply with the requirements for patent marking by allowing patentees to mark their products virtually rather than physically. Instead of printing the actual patent number on the product, businesses can display the term “patent” or “pat.” along with an accompanying URL address of a Web site where the actual patent number will be located.
Section 16 of the AIA also requires the Director of the USPTO to prepare a report for Congress analyzing:
(A) The effectiveness of “virtual marking” as an alternative to the physical marking of articles;
(B) whether such virtual marking has limited or improved the ability of the general public to access information about patents;
(C) the legal issues, if any, that arise from such virtual marking; and
(D) the deficiencies, if any, of such virtual marking.
The report is due to Congress not later than three years after the date of enactment of the AIA, which is September 16, 2014.
Interested members of the public are invited to submit written comments they deem relevant to the above-mentioned issues. The USPTO would particularly welcome observations and comments on any of the following topics:
1. Experiences with creating and maintaining adequate and effective virtual marking Web sites;
2. effectiveness of virtual marking, including experiences using virtual marking Web sites to locate relevant patent information;
3. challenges presented by virtual marking in providing sufficient notice to the public, including sufficiently associating patent numbers with the corresponding product within the virtual marking Web site;
4. economic impacts of virtual marking, including costs differences between physical marking and virtual marking;
5. advantages and disadvantages of virtual marking in comparison with physical marking;
6. identification of other practical or legal concerns with virtual marking; and
7. any other issues or experiences regarding virtual marking.
Commenters are requested to include information identifying how they are impacted by virtual marking, e.g., whether they are patent owners, licensees, or any other type of user, business, or manufacturer."
Copyright © 2014 Robert Moll. All rights reserved.
