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.

Patent Marking Requirements: A Practical Guide for Practitioners and Entrepreneurs

Intellectual Property > Patent | Published 3 March 2026 - Updated 31 March 2026 | UpLaw - uplaw.us

A patent is valid whether or not the product is marked. But under 35 U.S.C. § 287, an unmarked patentee usually recovers nothing for the years before it gave notice — so marking is often the single largest lever on the size of a damages award, and after the Supreme Court abolished laches in SCA Hygiene it is frequently the only limit left on how far back a claim can reach.

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