HE NECESSITY of patent marking, as required by 35 USC �287(a) for pre-filing damages, has been heavily debated in recent years. However, the statute remains in effect and causes a difficult dilemma for any patent holder whose patent covers a product manufactured or sold by it on whether or not to mark. This decision is usually based on many factors, including the value of the patent, the value of the product protected, the industry and the aggressiveness of the patent holder.
The decision about the use of marking is even more difficult when patents are cross-licensed between two parties. For example, if one or both of the parties wishes to mark, that party must examine the size of its patent portfolio, determine which patents within the portfolio require marking, and then attempt to impose on the other party to the cross-license marking of products with appropriate patent numbers.
