Strategic Assertions: Evading the Patent Marking Requirement

Sharkey, Christina | April 1, 2014

Failing to mark patented articles as such could limit damages in an infringement suit. But the current state of marking law includes a meaningless distinction between marking requirements for patented articles and marking requirements for articles that are associated with patented methods. This differential treatment creates loopholes for avoiding the consequences of non-marking and degrades the policy objective of requiring marking—providing notice. Congress should act to ensure that patent owners cannot skirt their duty to the public by selecting to associate an inventive article with method patents or claims. Although similar critique has been issued in the past, the continued use of loopholes and conflicting precedent render the issue pertinent today. This Comment surveys the relevant interpretations of the marking statute, the loopholing techniques available to creative patentees, and advocates for a change in the law.