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.
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