Are Your Products Marked with Their Patent Numbers?
Are you periodically checking to make sure that your patent marking is up to date? Failure to properly mark your products with the patents that cover them can be very costly if you ever go to enforce your patents. Normally, patent infringement is a “strict liability” offense, meaning that the infringer is liable regardless of whether he or she knew of the infringed patent’s existence. However, under the Patent Statute, if your patent includes “apparatus” claims (as opposed to merely including method claims), and you do not mark the product with the patent number or a link to a website that lists the applicable patents, you can lose up to six years worth of damages (six years prior to filing a complaint is the maximum damages period in a patent suit). It is important to periodically check your products to make sure you know which of your patents cover them and to update your patent marking accordingly. Also, if you license your patents, it is important to make sure your licensees are marking their licensed products with your patent numbers or you may suffer the same truncation of damages. Ideally, you should make this an explicit requirement in the license itself.