This week, we are taking a diversion from copyrights and trademarks to the world of patents. We will talk about one of the simplest and most practical measures you can take once a patent is issued for a product of your business: constructive notice.  

The Importance of Patent Notices

What is “notice” in the context of patents, and why does it matter? “Notice” entails making your patent rights known to infringers. 

Similar to other areas of IP law, enforcement falls on the owner of the patent. In other words, it is up to the patent owner to make clear to the public that there is a patent pending or an issued patent by providing “actual notice” by directly informing the alleged infringer, or by providing “constructive notice” on the product itself or on a public website.

Notice is especially consequential in patent law, because determination of potential damages owed to the patent owner start from the date of notification, not the first date of infringement or patent approval. 

You can see how this could put quite a limitation on possible infringement damages. It may take some time to give “actual notice,” – you might actually have to search for elusive infringers in order to serve them papers. 

Consequently, relying on actual notice can lead to lost compensation. Constructive notice is a way to get ahead of this limiter.

A Formalized “I Told You So”

Constructive notice is essentially labeling your product(s) with your issued patent number, to proclaim your patent rights loud and clear. So, if anybody uses your patent product or patented design without permission, you can point to the label and say, “Had you checked, you would have realized that this is already patented.”

In the past, constructive notice had to be marked on the physical object with the word “patent” or abbreviation “pat.” – then tagged with the specific patent number. 

For objects too small or unwieldy to stamp or emboss, owners had the option to use a label that referenced the patent number, or place the patent number on packaging. However, some cases involving constructive notice have been struck down during litigation, so directly labeling the patented product is the best practice whenever possible.

Cost and Solutions for Constructive Notice

In either case, you can imagine that maintaining up-to-date patent numbers – adding new, discarding expired – could become quite costly if, say, you have to produce a new phone case mold with the new number each time it changes.

A modern solution to this burdensome cost has been introduced! These days, patent owners are allowed to effectuate notice of their patent rights with a “virtual marking” by placing a website on the product, with the following conditions:

• Current, up-to-date registered patent numbers are listed on the site;
• Expired patent numbers are removed on a regular basis; and
• The website is generally maintained – it is not down for extended periods of time.

Also note, should you choose to reference a webpage, it is insufficient to simply place an internet address on the article; the address must include the word “patent” or the abbreviation “pat.” (e.g., www.company.com/patents) and the webpage must clearly associate the article with the applicable patent number(s). This online option lends much more flexibility to the process of constructive notice.

Take Constructive Notice Steps

If your business relies on one or more patented products, constructive notice with a virtual marking is a simple and practical way to protect your patent assets. It does require that your business execute steps like creating and maintaining a company website and marking products with “website URL + patent.” It may be tempting to put off these steps as a busy entrepreneur or business, but do not procrastinate as it could cost you months’ or even years’ worth of damages if your patents ever face infringement.