Virtual Patent Marking: Should I Virtually Mark My Patents?

As a patent holder, it’s important to stay informed about the various legal requirements and best practices for protecting and enforcing your patent rights. One important aspect of this is virtual patent marking, which is the process of identifying patented products through a website, as opposed to physically marking each individual product with a list of associated patents.
But what are the requirements for virtual patent marking and is it actually necessary for your patents? In this blog post, we’ll take a closer look at what Virtual Patent Marking is, why it’s important, and some general requirements under US law (and which may apply elsewhere, such as the UK, which has adopted similar virtual patent marking regulations). We also discuss the benefits of virtual patent marking for your patents and the risks if you don’t deploy virtual patent marking. Whether you are a patent owner, IP lawyer, or entrepreneur, we hope this article gives you a better understanding of virtual patent marking and how it applies to your patents.

What is virtual patent marking?

Virtual Patent Marking, also known as digital patent marking, electronic patent marking or webmarking, is a process that allows patent holders to publicly associate their products with the specific patents they cover. Virtual patent marking involves providing a URL on the product, or in some cases on its packaging, that links to a publicly accessible web page that lists the patents associated with the product. The purpose of virtual patent marking is to provide constructive notice to a potential infringer that a specific product is covered by one or more patents, so that they can take action to avoid infringing those patents. Although not yet a widely known or widely used strategy, virtual patent marking offers patent owners a way to potentially obtain greater damages than they would otherwise in the event of patent infringement.

Benefits of virtual patent marking

Virtual patent marking has several advantages over the traditional physical marking of products. One of the main advantages is that companies can easily update their virtual patent marking webpage. For example, if a company obtains a new patent or if a previously existing patent has expired, it can update its virtual patent marking webpage accordingly in real time, whereas with a physical mark, the company would have to go through the time consuming and expensive process of physically updating or removing the notice from each item that is covered by the patent.

Another benefit of virtual patent marking is that it allows companies to provide constructive notice of multiple patents covering a single product or process, which can be difficult with a physical mark. This can also be particularly useful for products covered by multiple, pending patent applications that are under review, where the status of those applications will change as they progress.

Moreover, virtual patent marking is also cheaper than physical marking. Physical marking can be expensive, especially for companies that produce a large number of products. With virtual patent marking, the company can simply update the virtual patent marking web page on its website instead of having to pay to update the physical marking on each product.

Another important benefit of virtual patent marking is that it allows companies to provide constructive notice of their patent portfolio to a wider audience. Physical patent marking can only be seen by people who have access to the physical product, while the virtual patent marking webpage can be viewed by anyone with an internet connection. This means virtual patent marking can provide constructive notice to more people, including potential infringers and people in the industry who may not have access to the physical product.

Finally, it should also be noted that virtual patent marking can help patent owners avoid false marking claims and potential legal penalties, as they can more easily correct inaccuracies or errors on their virtual patent marking webpage. If a company incorrectly labels a product with the wrong patent number when physically labelling it, or labels a product that is no longer under patent protection, the company cannot easily correct the error and may face penalties. However, with virtual patent marking, a company can update or remove an incorrect listing in real-time, thus reducing the risk of penalties.

Overall, virtual patent marking offers a number of benefits to companies that want to give constructive notice of their patents to the public, including the ability to easily update and flag multiple patents, cost effectiveness, wider audience reach and reducing the risk of legal penalties for false marking. It can be a useful tool for patent owners wishing to give constructive notice of their patents, while offering the public a relatively easy and flexible way to access this information.

How Setup Virtual Patent Marking in 7 Steps

Virtual patent marking is a way for companies to publicly disclose that their products are covered by one or more patents without having to physically mark each item with associated patent numbers. Here is a step-by-step guide to setting up virtual patent marking for your company’s products:

1. Identify the patents that cover your products: In order to set up virtual patent marking, you first need to identify which of your patents cover the products that you want to mark. This information can typically be found in the patent’s “claims” section.
2. Create a dedicated virtual patent marking webpage for your patent markings: Next, you’ll need to create a webpage that lists the patents that cover your products. This webpage should be easily accessible to the public and should include the following information for each patent:
   • The patent number;
   • The product(s) that the patent covers;
   • A statement that the product(s) is/are covered by the associated patents and other appropriate caveats;
   • The webpage should be created on your own website (such as companyname.com/patents).
3. Label your products with the URL of the patent marking page: Once the patent marking page is set up, you’ll need to label your products with the term patent or pat. Followed by the URL of that page ( for example companyname.com/patents) . This can typically be done by adding a small label to the product or its packaging that includes the URL. Some companies may choose to also print the URL on both the product and packaging.
4. Update the webpage as needed: It’s important to regularly review and update the patent marking webpage as needed. If any of the patents listed on the webpage expire, or if new patents are issued that cover your products, you’ll need to update the webpage accordingly.
5. Keep records of the products and the associated patent numbers: It is also important to keep records of all products that are marked virtually, along with the patent numbers associated with each of them.
6. Keep in mind that virtual patent marking is still the same as physical patent marking and is still subject to the same legal requirements for providing constructive notice to the public.
7. Note that it is always best to consult with an attorney with experience in intellectual property (IP) law for guidance on virtual patent marking for each jurisdiction of interest, as well as any other IP-related issues.

Common Mistakes to Avoid in Virtual Patent Marking

There are several common mistakes companies can make when setting up virtual patent marking for their products. Some of these are:

1. Not including all relevant patents: When creating the virtual patent marking webpage, it’s important to label all of the products that are associated with patents. Failing to list all patents related to a product, puts you at risk of losing potential damages in the event of infringement.
2. Not providing an easy-to-find webpage: The virtual patent marking webpage should be easily accessible to the public. This means that the webpage should be prominently linked to from the company’s website and be easily found through a search engine.
3. Not updating the virtual patent marking webpage regularly: It’s important to regularly review and update the virtual patent marking webpage as needed. If any of the patents listed on the webpage expire, or if new patents are issued that cover your products, the webpage should be updated accordingly.
4. Not including the products names or descriptions: The webpage should include the product’s name or product code. This allows the public to understand which products are covered by the patent.
5. Not including the correct statement: Your virtual patent marking webpage should include a statement or caveat setting out the purpose of the provided listing of products associated with each patent.
6. Not having records of the products that are marked virtually: It is important to keep records of all products that are marked virtually, along with the patent numbers associated with each of them, and when each such patent is entered on the listing with the associated products.
7. Not consulting with an attorney: Always consult with an attorney with experience in intellectual property (IP) law for guidance on virtual patent marking, as well as any other IP-related issues.
8. Not following the country-specific laws: Each country may have its own laws and regulations when it comes to virtual patent marking, so it is important to consult with the relevant local patent office, for specific guidance for your case.

It’s important to be careful to avoid these common mistakes to ensure that your company’s virtual patent marking is done correctly and in compliance with the relevant laws and regulations.

How to update and maintain your virtual patent marking

Updating and maintaining the Virtual Patent Marker is an important step in ensuring that your business complies with relevant laws and regulations and in providing the public with accurate and up-to-date information about the patents that apply to your products. Here are some steps you can take to update and maintain your virtual patent mark:

1. Regularly check your patents: Regularly check the patents that cover your products to make sure that the information on your virtual patent marking web page is up to date. If any of the patents on the webpage have expired or new patents have been issued relating to your products, the webpage should be updated accordingly.
2. Keep a record of virtually marked products: Keep a record of all products that have been virtually marked along with the patent numbers associated with each product. This will help you ensure that your virtual patent marking webpage is accurate and up to date.
3. Refresh web page: Update the web page with the latest information, such as new patents issued or expired patents that are removed. This ensures that your virtual patent marking web page remains accurate and up to date.
4. Update your product packaging: Make sure your product packaging is updated to reflect the correct virtual patent marking page URL. This ensures that customers can easily access the web page and view relevant patent information for your products.
5. Consult an Attorney: Always consult an experienced intellectual property (IP) lawyer for advice on virtual patent marking and other intellectual property matters.
6. Follow country-specific laws: Each country has its own laws and regulations when it comes to patent marking, so it is important to consult the appropriate local patent office for guidance specific to your case.

By following these steps and making sure to regularly review and update your virtual patent marking, you can ensure that your business complies with relevant laws and regulations and that the public has accurate and up-to-date information on the patents that cover your products.

Should my patent be virtually marked?

Finally, virtual patent marking is a useful tool for companies to publicly disclose that their products are covered by one or more patents. It has benefits such as providing constructive notice by informing the public, deterring potential infringers, and providing an opportunity to seek greater damages. However, whether or not a company should implement virtual patent marking depends on the specific circumstances of their patents, products and the industry in which they operate.

The decision whether or not to implement virtual patent marking should be made in consultation with an experienced intellectual property lawyer. They can advise on the legal requirements, best practices, and the potential benefits and drawbacks of virtual patent marking for your patent portfolio. Additionally, it is important to keep up-to-date with the relevant laws and regulations of the local patent office when considering the implementation of virtual patent marking. Ultimately, the purpose of virtual patent marking is to give constructive notice, by providing the public with accurate and up-to-date patent information relating to your products, and it is worth considering whether this is an appropriate course of action for your business and patent portfolio.

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your patent professional on any specific questions you may have.