The Marking Statute Should Cover All Patent Claims

Law360, New York (March 14, 2013, 11:51 AM EDT) -- Should a patent owner be allowed to avoid the damages limitations of the patent marking statute simply by picking and choosing which patent claims it asserts in a litigation? This article argues that this is an unfair result and is not required by the statute.

Background

The patent marking statute[1] encourages patentees to mark their products with the applicable patent number(s). This serves three related purposes: (1) to protect the public from innocent infringement; (2) to encourage patent holders to notify the public about patented articles; and (3) to aid the public in identifying whether a product is patented.[2]

If the patentee...

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