Article · Intellectual Property
Patent Marking Requirements: A Practical Guide for Practitioners and Entrepreneurs
- Type
- Article
- Jurisdiction
- National
- Date
- 2026-03-03
- Topic
- Intellectual Property
Patent marking under 35 U.S.C. 287 is the cheapest compliance step in patent law and the most expensive one to skip, because an unmarked patentee can be barred from recovering a single dollar of damages for years of infringement, even against a deliberate copyist. This guide separates constructive notice (earned by consistent marking) from actual notice (a specific charge of infringement against a specific product), and explains why marking limits the timing of damages rather than the validity of the patent. It works through the America Invents Act's virtual-marking option, the patentee's non-delegable duty to police licensee marking under Arctic Cat v. Bombardier, and the special rules for method claims, process patents under Section 287(b), and the medical-practitioner carve-out in Section 287(c). It covers the post-AIA collapse of false-marking liability into a competitive-injury claim under Section 292, the good-faith defense of Pequignot, and the residual state-law exposure the AIA left untouched. With laches gone after SCA Hygiene, marking is now the principal limit on how far back a damages claim can reach, and the article closes with worked hypotheticals, a Section 292 checklist, and an auditable compliance program built to survive litigation.
The full text of this document is available to Executive subscribers and above. See plans.