Frequently Asked Questions

• What is patent marking?

  “Patent marking” refers to the practice of affixing a patent number to a product to indicate that product is patented. Traditionally, that was done by printing the patent number on the product itself or, where that was not possible, on the product packaging. While this was practical for large products like cars and tractors, it was not practical for a smaller product simply due to the space required. Also, it necessitated frequent changes to the product or packaging to reflect changes in patent status. Further, some modern products, such as mobile phones, are covered by a very large number of patents and thus it would be impossible to physically mark the product with all the associated patent numbers.

• What is virtual patent marking?

  Recognizing these practical challenges surrounding traditional patent marking, the United States Congress amended the so-called “marking statute”, 35 U.S.C. § 287(a), as part of the Leahy-Smith America Invents Act (“AIA”) signed into law September 16, 2011. The amendment to § 287(a) introduces the option of “virtual marking,” i.e., affixing to the product (or when not possible, its packaging) the word “patent” or “pat.” followed by an internet address that associates the product with one or more patents that cover it. The legislative history of the AIA indicates that Congress made this change to reduce costs for manufacturers and to facilitate marking of small products.

• What does § 287(a) say?

  The marking statute, as amended by the AIA, reads as follows:

  §

  Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent, or by fixing thereon the word “patent” or the abbreviation “pat.” together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent, or when, from the character of the article, this can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice. In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.

• Why should I mark my products?

  Marking a product with a patent number - using either the traditional method or using virtual marking - provides “constructive notice” to a potential infringer that the product is covered by a patent. In some cases, this can make a significant difference in the amount of damages that are available in an action for infringement.

• Why should I use 287a.com for virtual marking?

  287a.com is a web service specifically designed to make virtual patent marking easy and inexpensive. Once your product is marked, your product and packaging need never change again - you can simply update your 287a.com page as you obtain additional patents.

• How does this affect how our product managers add markings?

  For those who are already marking your products, moving to virtual marking means you can simplify the requirements for your product managers by providing them a single URL to mark on every product you'd like to include. This is instead of them having to add a marking for each individual patent number! Even better, it means that they never have to change the marking throughout the product's lifecycle, even if you add new patented technology or patents expire.

• Will I need my own domain?

  No. The 287a.com service is built around a custom sub-domain for your exclusive use. We chose “287a.com” to be as short a name as possible, so even combined with your sub-domain name (e.g., “mycompany.287a.com”) the URL should be able to be printed on most products.

Not finding what you need? Please reach out to us.