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I have an Invention ... Now What?
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   Marking Patented Articles
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   Author  Topic: Marking Patented Articles  (Read 637 times)
Burk
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Posts: 1
Marking Patented Articles
« on: Jul 3rd, 2005, 3:02pm »
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According to the USPTO a patentee who makes or sells pateted articles is required to mark the articles with the word patent and the number of the patent.  I have a patent for a combiantion of three items which I intend to make and market.
 
I can explain  my question by using croquet as an example.  Suppose I am the inventor of croquet and the USPTO has just granted me a patent becuase I am the first to combine the mallets, balls and wickets into a game. I want to market croquet on the internet and want to protect my invention from infringement.  I can put the patent number on the mallets but will not find it convenient to put that on the balls and it will almost be impossible to do so on wickets.  Does the fact that I have marked only the mallets give me adequate protection?
 
If I have a website will it be essential to list the patent number? The same question applies to any advertising or literature I may develop.
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Isaac
Senior Member
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Posts: 3472
Re: Marking Patented Articles
« Reply #1 on: Jul 3rd, 2005, 5:24pm »
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A very interesting scenario.
 
Marking is not mandatory, but failure to do so result in being able
to collect damages prior to notifying an infringer.  You would
still have the right to injunctive relief.
 
The statute allows marking the packaging when marking the product
is not feasible.
 
What makes the hypo interesting is that the patent apparently does not cover
the individual items.  Instead you have patented a method of using
the items.  To the extent that the items are usable in other
context, the items themselves are not patented and thus the
notice related limitations on damages may also be inapplicable.
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Isaac
JimIvey
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  jamesdivey  
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Posts: 2584
Re: Marking Patented Articles
« Reply #2 on: Jul 6th, 2005, 12:13pm »
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Mr. Clark's right, as far as I know.  
 
I don't think there's any right or precisely and exclusively correct answer to this.  Personally, I'd mark the packaging and any literature included therein (e.g., game instructions) -- especially if the patent is a method patent covering the combined use rather than the combined article/machine.  I don't think it would be harmful to mark just the mallots or the mallots, balls, hoops, etc.  
 
I believe the essence of marking is informing people to go look up the patent before they decide to knock off the particular article.  For example, you can read "US Pat. 6,123,456" as "Before you decide to compete with us in the marketplace, please go read U.S. Patent No. 6,123,456 and be aware that it exists."  I don't believe it means "We believe the thing this is written on is, in and of itself, covered by US Patent 6,123,456."
 
I remember reading a case about a satellite control system requiring at least 3 base stations, at most 2 of which could be on the same continent.  Good luck marking that as a collection!
 
Regards.
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James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
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