Title 35 U.S.C. § 287(a) conditions the recovery of damages for past infringement of a patent on the public having received prior notice of the patent. A patentee may provide prior notice by marking products “either by fixing thereon the word ‘patent’ or the abbreviation ‘pat.,’ together with the number of the patent, or when, from the character of the article, this cannot be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice.”
If a patentee sells a product and fails to mark it, no damages may be recovered “except on proof that the infringer was notified of the infringement and continued to infringe thereafter.” Eastman Kodak Co. v. Agfa-Gevaert N.V. & Agfa Corp. , No. 02-CV-6564T, Docket No. 68, at 6. The statute expressly equates the filing of an action for patent infringement with notice to the infringer. See 35 U.S.C. §287(a). Unlike patent lawyers who are at least generally aware of the statutory marking requirement, patent owners may not know about the marking requirement or how to deal with a past failure to mark. Below we provide some practical tips for doing so.
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