Congress directed the USPTO to submit a report on virtual marking after enactment of the AIA. The AIA made many changes to United States patent law, including an amendment to 35 U.S.C. § 287(a), the so-called “marking” statute. The purpose of marking an article is to provide constructive notice to the public that the article is patented. Failure to appropriately mark an article can preclude the recovery of damages for infringement until effective notice is given. In the AIA, Congress intended to modernize and update the statute.

Prior to the AIA, the marking statute required patented articles to be physically marked by placing the word “patent” or the abbreviation “pat.,” along with the patent number, on the article itself or its packaging. The amendment to § 287(a) introduced in the AIA provides patentees with the option of using “virtual marking,” i.e., affixing onto the article or its packaging the word “patent” or the abbreviation “pat.” followed by an address of a posting on the Internet that associates the patented article with the number of the patent, as an alternative to physical marking.

This report analyzes the effectiveness of the new virtual marking provisions of 35 U.S.C. 287(a), which allows patent owners to mark their products with an internet address that provides the patent numbers associated with the product.  The report also analyzes the impact of such virtual marking on public access to patent information and any issues (legal or otherwise) which virtual marking creates.

On the basis of the public comments and independent research, the USPTO concluded that virtual marking has likely met its intended objectives of reducing manufacturing costs, facilitating marking of small articles, and improving the general public’s access to patent information. However, the USPTO believes it could be beneficial to revisit the issue at a later date, to account for further user experiences, additional data, and case law developments.

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