The America Invents Act of 2011 modified the marking statute, 35 U.S.C. § 287(a), to permit a form of virtual marking, i.e., using a website, rather than the product, to identify the specific patents by number associated with specific products. Under the amended statute “Patentees … may give notice to the public that the same is patented … by fixing thereon the word ‘patent’ or the abbreviation ‘pat.’ together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent …”
In one of the first opinions to consider the newly amended statute, A to Z Machining Service, LLC v. National Storm Shelter, LLC, No. CIV-10-422-C, 2011 WL 6888543, *3-*4 (W.D. Okla. Dec. 29, 2011), the district court flatly rejected a patentee’s contention that listing patents on a company’s website, by itself, is sufficient to comply with the virtual marking permitted under § 287(a). The court explained that “it is clear from the … statutory language that a website alone would not satisfy the notice requirements under § 287(a), even if Defendants viewed the website.” Id.
Additionally, the court further held that a patentee must mark its product with the word “patent” or a suitable abbreviation and mark the website on the product. The court concluded that merely affixing the website address to the product, “without including the word ‘patent’ or the abbreviation thereof, fails to give notice under this subpart.” Id.
For additional discussion on this topic see Robert A. Matthews, Jr., Annotated Patent Digest§ 30:153.50 Virtual Marking.