Patentees may mark their patented articles with the appropriate patent number so as to give notice to the public that the article is patented (so-called “constructive notice”). In the event the patentee or any licensee fails to so mark (known in the legal profession as a “screw-up”), no damages may be recovered for infringement of the patent unless and until the infringer is given “actual notice” of the infringement; and then only for infringement occurring after receipt of such notice (not surprisingly, filing of suit is itself considered to constitute actual notice). All well and good with respect to patented articles; but, what about patented methods?
Well, worry no more. The Court Of Appeals For The Federal Circuit (C.A.F.C.) has proclaimed that “the law is clear” (as if the law is ever “clear”) that the marking requirement does not apply where the patent is directed to a process or method. OK, great, if the patent has only method claims; but, what if it has both method and article claims?
Well, the C.A.F.C. addressed that issue too. If only method claims are asserted in an infringement action, the marking requirement does not apply, even if the patent includes (unasserted) article claims.
THE LESSON TO BE LEARNED: Patented articles should always be marked with the appropriate patent numbers – this includes articles sold by licensees. In the event of a screw-up, damages for past acts of infringement may still be recovered, if only method claims are asserted.
I wrote a lot of freelance articles for many people. I love this business. This is excellent advice to know so I do not end up getting sued for patent infringement.
I think more people need to be aware of article patent infringement. I will pass this blog onto my friends.