The patent statute provides that damages for patent infringement begin to accrue when “the infringer was notified of the infringement.” Obviously, it is to the advantage of the patentee to establish the earliest possible date of notice.
Notice may be “actual” or “constructive.” Actual notice is given by an express statement to the infringer or by the filing of a lawsuit for infringement. Constructive notice is effected by marking the patent number on the patented product. If there is no product covered by the patent, the marking requirement is excused and damages for infringement accrue as of the commencement of the infringement.
A question arises when the patent claims a process or method, rather than an article or product. Since there is no article or product to mark, is the marking requirement excused? In a recent decision of the United States District Court for the District of Minnesota (Northbrook Digital Corporation v. Browster, Inc.), the Court held that the marking requirement was not excused. The case involved Northbrook’s attempt to enforce five patents relating to internet browsing software. Software covered by the subject patents was sold via online download. Northbrook argued that there was nothing tangible to mark.
Applying earlier precedent from the Court of Appeals for the Federal Circuit, the Court held “the law is clear that to the extent there is a tangible item to mark by which notice…can be given, a party is obliged to do so if it intends to avail itself of the constructive notice provisions.” It further held the websites that offered the software could easily contain the requisite marking information.
The lesson to be learned: methods or processes can be subject to the marking requirement and websites can be marked with patent numbers.