Virtual Marking: A Flexible Option for Pharmaceuticals

Physically marking a product, or in some cases its associated packaging, with the “patent” or “pat.” and the numbers of any patents covering the product provides constructive notice to the public that the product is covered by the identified patents. Marking can be important for obtaining damages for infringing products sold prior to the date when you sue an infringer. A 2011 change in the law provides a new option for marking: “virtual marking.”

While physically marking remains an option, virtual marking allows a patent owner to mark the product with “patent” or “pat.” along with an internet address. The corresponding webpage, in turn, identifies the patents covering the product. Like traditional physical marking, virtual marking can provide constructive notice that a product is patent protected. Also like traditional physical marking, virtual marking can preserve your right to recover pre-suit damages for patent infringement.

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