Patent marking

From time to time, patent holders are unsure whether to label their products as “patented” or “patent pending”. This practice is known as patent marking in patent law and regulations around the subject differ between jurisdictions. Therefore, it is essential to check whether there are relevant regulations for the markets you are approaching.

What is patent marking?

Patent marking is the practice of labelling a product with its corresponding patent numbers or a website where this information can be found. This serves as a public notice that the product is protected by one or more patents. The primary purpose of this practice is to inform potential infringers about the patent and to help patent holders maximize their ability to recover damages in infringement lawsuits.

What are my obligations?

In the US, patent marking is governed by 35 U.S.C. § 287. While not mandatory, it is very strongly recommended because it provides constructive notice to the public that the product is patented. Without proper marking, a patent holder may only recover damages from the date the infringer was given actual notice of the infringement. This could significantly reduce the amount of damages recovered.

In contrast to the US, Europe does not have a unified or mandatory system for patent marking. The practice and its legal implications vary from country to country within the European Union. In general, patent marking is not required, but it might be advisable in countries like the Netherlands, Spain, Sweden and Finland. In countries like France and Germany, patent marking is allowed for marketing reasons, but has no legal advantage. On the other hand, false or misleading patent marking is sanctioned with fines. In the United Kingdom, similar legal benefits are in place as in the US, where infringers do not have to pay damages if they can prove that they were not aware of the existence of a patent.

However, the absence of a standardized requirement across Europe means that companies must navigate a patchwork of national regulations. In some countries, failure to mark might not affect the ability to claim damages, while in others, it could weaken a patent holder's position in court.

Key takeaways for patent holders

For companies operating in both Europe and the US, it is crucial to adopt a tailored approach to patent marking. In the US, proper marking is vital for protecting the full scope of potential damages in infringement cases. In Europe, while the requirements are less stringent, marking can still play a strategic role in patent enforcement.

Would you like to know more about the subject or need expert advise on your specific situation? Do not hesitate to contact us, as we are happy to help you protect your products and ideas. Because protection matters.