If you are seeking the benefit of marking your invention as “Patent Pending”, you must make a good faith effort to make sure that your invention is properly marked. If you mark your invention as “Patent Pending” this should be effective. When using this notice, it alerts the public that your invention may soon be patent protected and that once a patent is issued, you have the right to initiate a patent infringement lawsuit against someone who is potentially infringing on that patent and you may seek seek monetary damages or other remedies for the copying, etc. of your patented invention.
You may only mark your invention as “Patent Pending” if the patent application has been filed with the Patent office. Also note it is a criminal offense to mark or offer to sell an invention as “Patent Pending,” when a patent application has not been filed yet.
In deciding how and where to mark inventions as “Patent Pending”, you should be mindful of the purpose of giving public notice. For example, patent markings may be formed directly on the “Patent Pending” article by etching, molding, or printing, or if you are unable to place the marking on the invention itself due to “the character of the invention”, the notice may be provided on the packaging of the invention. In addition, there may be particular challenges that you may endure to properly mark an invention. For example, often times, labels may fall off in transit. The courts will generally follow the “rule of reason” approach to hold that constructive notice is achieved when the patent applicant or patentee consistently mark substantially all of the inventions.
Once a patent has been issued for the invention and you are a patentee rather than a patent applicant, the marking on the invention should be changed from “Patent Pending” and instead be marked with the patent number and marked as follows: e.g., “U.S. Pat. No. XX,XXX,XXX”. You can find examples of the proper use of the patent number marking on the products and packaging of many reputable manufacturers, if you would like a better example. Also, recently, the America Invents Act (AIA) allows patented articles to be marked “virtually” via the internet.
It is best to consult an attorney to determine how to mark your invention ‘virtually” and before moving forward with notices or marking of your invention.
