Charting A Course For Post-AIA False Marking Litigation

Law360, New York (May 25, 2012, 1:07 PM EDT) -- Patent owners have traditionally marked their patented products with patent numbers, or as “patent pending.” Marking notifies the public, particularly potential competitors, that a product is patented and cannot be “knocked off” without risking litigation. The recently enacted America Invents Act facilitates marking by permitting patent markings to be posted on the Internet. 35 U.S.C. § 287.

Failure to mark carries serious negative consequences for the patentee. Under 35 U.S.C. § 287, if a patented product is not marked, “no damages shall be recovered by the...
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