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Virtual Marking Websites

Signed into law on September 16, 2011, the Leahy-Smith America Invents Act includes an amendment expanding how patent markings can be legally asserted. The amendment gave manufacturers the option of "virtual marking" their products. This means they can now affix the word "patent" or the abbreviation "pat." followed by the internet address of a patent marking website onto their product or its packaging. This new law is intended to save manufacturers from certain production costs and to facilitate their effective patent markings on small products.

According to the language of this amendment, valid patent marking websites must meet certain requirements. They must be open to the general public, cannot charge a fee for access to the website, and must somehow associate the patented product with its patent information. However, beyond these broad requirements, the law is vague and presents issues currently being answered by our courts. Examples of these issues include:

•    What happens when the general public cannot view the patent information because the website has gone down for some substantial duration of time?

•    What happens if an interested party cannot gain internet access and get onto the website, due to their remote location or lack of resources?

•    What if the website's administrator can somehow obtain the personal information of those accessing the website?

•    When is a website properly organized to effectively associate a patented product with its patent information?

If these issues raise questions about your patent marking website or whether a competitor's website is legally compliant, then you should understand how the law is being interpreted. The attorneys at MacDonald Illig understand the legal issues these websites face and how to protect your interests in light of the current legal interpretations.  

If you would like consultation regarding patent marking website compliance, or if you have additional questions, please contact a member of our Emerging Technologies or Intellectual Property practice groups.
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