Patent Marking

Patent Marking; A patentee was previously required to mark the articles with the word “Patent” and the number of the patent. Sec. 16 of the America Invents Act (AIA) spells out the new law on Patent Marking:

Provides for virtual marking by posting patent information on the Internet.
Virtual marking provisions apply to all pending and future infringement cases.
Provides that only the U.S. may sue for the penalty authorized by the false marking statute.
Civil suits re false marking are limited to persons who suffer a competitive injury; damages adequate to compensate for the injury may be recovered.

The USPTO is to study the effects of the AIA three years after implementation:

Virtual [Patent] Marking

Congress directs the USPTO to submit a report on virtual marking not later than the date that this is three years after enactment of the AIA, i.e., by September 16, 2014. This report will analyze the effectiveness of the new virtual marking provisions of 35 U.S.C. 287(a), which allows patent owners to mark their products with an internet address that provides the patent numbers associated with the product. The report will also analyze the impact of such virtual marking on public access to patent information and any issues (legal or otherwise) which virtual marking creates.

http://www.uspto.gov/aia_implementation/aia_studies_reports.jsp

Provisional Patent Rights: An inventor may place the words ‘Patent Pending’ on an invention after an applicable nonprovisional, provisional or international (such as PCT) patent application has been filed. These words (with actual notification) only take on legal effect, known as provisional rights, after the patent application has published which is generally 18 months after the non-provisional patent application is filed (earlier publication can be requested). Provisional rights are minimal and do not come into force if the application is withdrawn or refused or if the patent that issues is not substantially the same as the published application.

Note: The publication that occurs at 18 months is publication of the application with content based on the application at time of release to Technology Center (TC) for examination (basically “as-filed”) except that preliminary amendments are not be included unless applicant submits an EFS (electronic) copy of the application for publication. The application has not undergone any substantial examination. First Office actions are currently taking place at about 25 months after application.

See Nonprovisional.com for information on the differences between provisional and nonprovisional patent applications and for more information about PCT patent applications.

Steps to a Patent-Short Summary Patent Document Codes Trademark or Patent How to Patent An Invention What is a Compact Patent Prosecution Idea to Conception Avoid Public Disclosure Patent search-New Invention Patent Search-Non-Obvious File an Application Patent Pending Office Actions Responses to Office Actions Final Disposition Patent Marking Patent Maintenance Brief Information on Patent Drawings

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35 U.S.C. 282 Presumption of validity; defenses	Trademark Refusals Does not Function as a Mark Refusals
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