WHY IS PATENT MARKING IMPORTANT?
If a patentee sues an infringer for selling a patented product in competition with the patentee or one of its licensees, the patentee is not entitled to damages unless the infringer had notice of the patent. Marking patented goods gives constructive notice. If a good being sold has not been marked as patented, however, infringers may not be liable for money damages until actual notice is provided. Failure to mark may provide an affirmative defense to patent damages. It is the alleged infringer’s burden to prove the patentee did not provide proper notice. This requires a showing that the patentee or an authorized licensee sold specific unmarked products that practice at least one claim of the patent. The patentee may rebut by proving that those products do not in fact practice the invention.
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