Recent events suggest the importance of understanding the basics of patent marking.

You are not required to mark your patented products with the corresponding patent numbers.  However, there are a number of reasons why you should consider doing so.  For example, correctly marking your products puts potential infringers on constructive notice of your patent.  This enables you to seek damages for patent infringement from the time infringement began, without first having to provide the infringer with actual notice of your patent.  Failure to properly provide patent marking on your products can limit or even prevent recovery of money damages for patent infringement in some circumstances.

Federal law, however, prohibits mismarking an unpatented article with intent to deceive the public.  As confirmed in a recent appellate court decision, falsely marked products can now result in fines of up to $500 per article.  This decision has spurred various plaintiffs to search out and sue companies for false patent marking.  Patent infringers may also now be more likely to assert a false marking counterclaim against a patent owner.  Accordingly, the following guidelines are recommended for patent marking:

1. After a patent issues, review the claims with patent counsel and determine which products, if any, are covered by one or more claims in the patent.
   
   
2. Mark the product with the patent number in accordance with 35 U.S.C. § 287 (i.e. "Patent X,XXX,XXX" or "Pat. X,XXX,XXX").  Alternatively, you can use "This product is covered by U.S. Pat. No. X,XXX,XXX."  Be affirmative and only mark those products you believe are covered by the patent.  Avoid equivocal language such as "may be covered by Patent X,XXX,XXX," or "covered by one or more of…."
   
   
3. When the patent expires, stop marking the product.  This may require advance inventory management planning.
   
   
4. Take steps to document and demonstrate that you have no intent to deceive the public.  These steps can include (a) getting advice from counsel on how to avoid false marking, and (b) having a program to regularly review product packaging and advertising to make sure expired patent markings are removed.