35 U.S.C. § 287(a) · Virtual patent marking
One address. Every patent. Every product.
Section 287(a) lets you mark a product with a web address instead of a list of patent numbers. 287a hosts that address and keeps every product-to-patent association in one place — built to simplify the setup and the ongoing workload for in-house IP counsel.
Pat. mycompany.287a.com
Illustrative. The sub-domain is yours.
What § 287(a) permits
“… 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.”
35 U.S.C. § 287(a), as amended by the AIA, 2011
What patent marking is
The statute allows exactly two ways to mark a product.
Patent marking is the inclusion of a notice on a product that there are patents associated with it. The current Statute allows for two means of marking*.
Means one
The patent numbers, on the article
Physically affixing the word “patent” (or “pat.”) + the patent number directly on the product. Every patent that covers it — and a change to the product or its packaging every time the portfolio changes.
Pat. 1234567 · 2345678 · 3456789 · 4567890 · 5678901 · 6789012 · 7890123 · 8901234 · 9012345 …
Means two
One web address, on the article
Physically affixing the word “patent” (or “pat.”) + a URL where a list of associations can be found. Once the product is marked, the product and its packaging need never change again.
Pat. mycompany.287a.com
Sources: MPEP, Chap 29 Sec 287 · USPTO report on virtual marking
Why it matters
Marking is what starts the damages clock.
Section 287(a) is not a formality. Where a patented article is not marked, no damages are recoverable for infringement that happened before the infringer was actually notified.
Marking — traditionally or virtually — 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.
First infringing sale
Actual notice given
Article not marked
No damages recoverable before actual notice.
Article marked
The marking is notice to the public from the start.
“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.”
35 U.S.C. § 287(a)
Reduce risk, liability & overhead
What virtual marking gives you
Compliance
Remain compliant
Ensure proper compliance with Patent Marking requirements with minimal overhead to fully enforce your patent.
On the product
One marking for all products
One URL for all of your products. No more tracking individual marking labels across products or updating designs.
In the office
Centralized marking management
Which product carries which markings, in one dashboard rather than a spreadsheet.
35 U.S.C. § 287(a)
The statute, in full
287a LLC is named after the statute that covers the optionality and requirements of patent marking. Section 287(a) lays out the rules for those looking to protect their patents, and offers the opportunity to enforce damages prior to filing an action through the use of markings.
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.
35 U.S.C. § 287(a), as amended by the Leahy-Smith America Invents Act (2011)
The clause the America Invents Act added in 2011. It is the clause that authorises virtual marking, and the reason this company exists. MPEP, Chap 29 Sec 287
This is not legal advice and you should always consult your own attorney when evaluating your patent marking requirements.
Talk to us
Ready to start marking your patents?
Tell us about your portfolio and how you mark today. We’ll tell you what virtual marking would look like for you.