To Mark or Not to Mark: Application of the Patent Marking Statute to Websites and the Internet

28 Pages Posted: 6 Feb 2008

See all articles by Eugene Goryunov

Eugene Goryunov

Kirkland & Ellis LLP; The John Marshall Law School

Mark Polyakov

Wood Phillips


The Marking Statute expressly limits the patent owner's recovery of damages if the patent owner itself, anyone making, offering for sale, or selling failed to mark its patented invention, sold within the United States, with the associated patent number. In these cases, damages must be limited to those that accrue after the infringer is provided actual notice of infringement. The authors suggest that, in light of relevant jurisprudence and the purpose of the Marking Statute, owners of patents that are directed to any business activities on the Internet should mark their own websites, and require their licensees to mark their websites, with the relevant patent numbers to avail themselves of constructive notice.

Keywords: patent, internet, web page, marking, infringement

JEL Classification: O34, K11, K41

Suggested Citation

Goryunov, Eugene and Polyakov, Mark, To Mark or Not to Mark: Application of the Patent Marking Statute to Websites and the Internet. Richmond Journal of Law and Technology, Vol. 14, No. 2, 2008, Available at SSRN:

Eugene Goryunov (Contact Author)

Kirkland & Ellis LLP ( email )

Aon Center
200 East Randolph Drive
Chicago, IL 60601-6636
United States

The John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

Mark Polyakov

Wood Phillips ( email )

500 West Madison
Suite 3800
Chicago, IL 60606
United States

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