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What Is Proper Patent Notice, and Why is it Important?

­­What is Patent Notice?

Patent notice is the act of informing the public that an invention is patented. The United States Code says that one making, offering for sale, or selling a patented article in the United States can provide notice to the public that the article is patented by including the words "U.S. Patent No.", "patented" or “Pat.” with the patent number on the article itself.


Why is Patent Notice important?

Providing public notice that something is patented is important because damages for any infringement are limited to the timeframe that a potential infringer was put “on notice” of the patent’s existence.

Without proper notice, it would be difficult to prove if and when an infringer was made aware that they were infringing on someone’s patent rights. The sooner you put potential infringers “on notice”, the more potential damages you could recover for infringement!

Additionally, patent notice can serve as a great marketing tool. If consumers are aware that a product is patented, they will likely determine that the product has unique characteristics or functions. Some may even interpret a patented product as having a certain level of quality or legitimacy, even though nothing about a patent ensures that a product will be well-made or work as described. (Shh…don’t tell anyone that!)


What are the ways you can provide patent notice?

There are several ways to provide patent notice. You can give patent notice through “actual notice”. When you are aware that someone is potentially infringing on your patent, you can notify them of your patent status by:

  • Telling them directly through a Cease-and-Desist Letter.
  • Filing a lawsuit for infringement and notifying them of the lawsuit.

You could also create patent notice through “constructive notice”. Constructive notice is established by informing the public of your patent status. There are several ways to achieve this:

  • Including the words "U.S. Patent No.", "patented" or “Pat.” with the patent number on the patented article.
  • When marking the product is impossible, including the words "U.S. Patent No.", "patented" or “Pat.” with the patent number on the packaging of the patented article.
  • Including the words "U.S. Patent No.", "patented" or “Pat.” with the patent number on a publicly accessible internet address that displays the patent number with the patented item.

It is important to note that patent owners can collect damages for infringement by either accomplishing “actual notice” or “constructive notice.” However, various factors may affect how you choose to mark your patented article. Affixing the notice on the article itself can be beneficial because it is easy to prove that patent notice was achieved in court. Additionally, including the words "U.S. Patent No." "patented," or “Pat.” with the patent number on a publicly accessible internet address is easy to accomplish and maintain.


Examples of Patent Notice in Action

United States courts favor clear and apparent markings to meet the patent notice requirement. Here are some cases where a court is tasked with deciding whether patent notice was present and adequate.

In one case, a court had to determine whether a product called the “FastMask Drywall Trim” provided sufficient notice that it was patented. The FastMask Drywall Trim was a metal drywall casing bead ten feet long with a T-shaped cross-section. The product was sold in ten-foot lengths, with 30 to a carton. The carton was marked with a patent notice reading "PATENT # 4,074,478" which was clearly visible below the product's name. However, there was no marking on the product itself. The court eventually decided that marking a patented article’s packaging, without marking the product, itself, was sufficient to give notice that the item was patented.

Another case hinged on whether a loose-leaf binder gave sufficient notice that the product was patented.  While the court eventually found infringement, there was still a question of whether the infringing party had sufficient notice that the product itself was patented. The court noted that if you need a magnifying glass to read that the product is patented, then the notice requirement isn’t met. Specifically, it stated, “…if a patentee chooses… to mark his goods that a magnifying glass is required to read what it says, it is not a ‘sufficient notice to the public’.” The lesson is that a plaintiff should be prepared to prove that they gave sufficient notice of infringement when attempting to charge a defendant with damages.


What’s Notice Got to Do With It?

As a patent owner, you must understand your legal responsibilities because they can affect the recovery of damages for infringement. Patent notice is required for informing infringers or potential infringers that you have a patented article. The sooner you accomplish this, the more likely you are to win and more damages you may receive in an infringement suit. There are several ways to provide patent notice, so choose the method that is right for you!

Not sure how to provide patent notice? Contacting a patent attorney might be a great start to learning about how to do that, and seeing whether patent notice is important for what you invented. When it comes to protecting your intellectual property, our team of patent attorneys at Wilson Dutra is committed to making the process as straightforward as possible. If you are ready to get started or wish to learn more about patent notice, we encourage you to contact our office today for a complimentary consultation.