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

Abstract

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