The marking and webmarking of patented products is one of the easiest wins in terms of optimising the benefits and protection given by your patent. However, all too often it is either completely overlooked or not done properly. This article explains why you should take marking and webmarking seriously, and how you go about doing it.
If you own or have applied for a patent and wish to have the best chance of being awarded damages in the event that your patent is infringed, you should mark your product with patent information relating to the product. This is because damages will not be payable by patent infringer who is able to prove that they were not aware of the existence of the patent and had no reasonable grounds for supposing that the patent existed at the time of the infringement (so-called ‘innocent infringement’). The infringer cannot rely on this argument to avoid paying damages if the patented product is marked with patent information relating to the product.
How to mark your product
Once you have applied for patent protection, the traditional way of marking your product is to include certain language the product itself or on its packaging. A statement which includes the patent application or publication number, such as “Patent pending: [insert application or publication number]” or “Patent applied for: [insert application or publication number]” might be used, or you could simply include the application or publication number on the product. Once a patent has been granted, you can mark your product with the patent number.
However, you might find it more convenient to use webmarking, which means marking a product with a web address that provides patent information relating to a product. Here are some examples of text that can be used for webmarking:
“Patent pending. Patent information can be found at [insert web address].”
“This product is protected by one or more patents. Patent information can be found at [insert web address].”
When webmarking a product, you should use a web address that leads directly to patent information and use a web page that is for patent information specifically. If you have information about more than one product on the page, you should ensure that it is clear which patents are associated with which product, and the products must be clearly identified (e.g. by including any relevant model numbers and variants that exist). Simply providing the address of the home page of a company website is unlikely to suffice unless the necessary patent information is provided on that home page.
The most important factor is that the web page that you use clearly presents the patent information associated with your commercial product(s), and you must ensure that this information is accurate and kept up to date.
While many companies use QR codes on their products to provide links to product information, you should not rely on QR codes alone to provide patent information. This is because, currently, a QR code will not be considered to provide all members of the public with notice of the relevant patent rights. For this reason, you should always mark or webmark products as described above.
If your product is not marked or webmarked sufficiently, this will reduce the likelihood that you will be able to successfully claim damages from an infringer.
Webmarking (rather than simply marking) products reduces burdens and costs for businesses and individuals who have applied for or own patents because updates to patent information can be quickly and easily updated on a web page rather than requiring updates to be made to manufactured products. Webmarking also makes it easier for the public to access up-to-date patent information about a product by avoiding outdated information being available on the products themselves.
If you have any questions about how to mark or webmark your products, please contact us. It is very important that marking and webmarking is done properly.