Patent Marking and False Marking Claims
Are you marking your products with your patent numbers? Including patent numbers on products covered by those patents can allow you to collect damages from an infringer for time periods before the infringer had notice of your patent. Section 287 of the Patent Laws discusses how marking your products can affect damages. But you also must be careful not to include patent numbers for patents that don’t cover a product. If you mark with patent numbers that aren’t applicable, you could be liable for falsely marking your products. False marking, and the related Section 292 of the Patent Laws, was the subject of the recent case Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295, 1300 (Fed. Cir. 2009). That case suggests that we may see a new kind of troll in litigation, with unaffected plaintiffs bringing suit against companies for falsely marking their products. And in that case, the court said each unmarked article might be an “offense”, significantly driving up potential damages against the patent holder. Proper marking of your products with patents covering those products is critical. Give us a call or send us an e-mail if you have questions about how to be sure which of your patents cover your various products.
