Ensuring Proper Notice: Clearing the Fog Surrounding Virtual Patent Marking

Abstract

INTRODUCTION|Consider an everyday product many consumers use with little, if any, thought regarding the packaging: a ketchup packet. On the lid of the packet, in small print, Heinz has printed the words “U.S. Pat. Nos. D623,072; other Pats. Pending.” Use of this language is typically referred to as “marking” a patented product. While often overlooked, this marking language serves an important function: if Hunt’s Ketchup, for example, infringes on Heinz’s patent, Heinz will be able to collect damages without having to prove that Hunt’s had actual notice of the alleged infringement. However, when the pending patents covering the product are granted, rejected, or abandoned, the marking language on the product will be inaccurate because there are no longer any patents pending. This creates a serious problem for Heinz.