The Patent Act provides in 35 U.S.C. 287(a) that an alleged infringer must have notice that there are patents covering a product before damages can begin to be assessed in an infringement action. Notice can occur one of two ways: through the patent owner providing an infringer with an actual notice of infringement of a patent or through the patent owner providing a constructive notice of infringement by adequately marking its products or packaging to indicate that the products have patent coverage. Marking products is ideal in that it permits a patent owner to begin assessing damages for infringement from the time its marked products are shipped, even if the patent owner is unaware of an infringement occurring.
On September 16, 2011, the America Invents Act was signed into law by President Obama and added a significant change to the marking statutes. The AIA expanded the scope of 35 U.S.C. §287(a) by giving patent owners the option to mark their products on websites. Constructive notice can now be provided by supplying the words “patent” or “pat.” and a URL address that directs the public to a free website listing the patents applicable to the marked product.
