Virtual Patent Marking: A Practical Guide

Authors: Ashley Bland, Alec Larsen, and Jennifer Bailey

How online patent notices work, why they matter, and how companies can use them responsibly.

If you have ever seen “Pat.” or “Patent” on a product, package, label, or instruction sheet, you have seen patent marking. Patent marking is a public notice system that tells customers, competitors, researchers, and others that a product may be protected by one or more patents. In the United States, companies can provide that notice in a more flexible way called virtual patent marking, but it is not often taken advantage of by businesses.

With virtual patent marking, the product or packaging includes the word “Patent” or “Pat.” followed by a web address. That webpage, which must be free and publicly accessible, associates the product with the relevant patent number or numbers. This approach is intended to make patent information easier to maintain and easier for the public to find.

This article explains what virtual patent marking is, how it developed, why it matters, and how a company can create a practical virtual marking program. It also includes examples of product markings and webpage formats that help make patent information clear to the public.

Background: Why Patent Marking Exists

In the United States, patent marking is addressed in 35 U.S.C. § 287(a). The basic idea is that when a patented article is properly marked, the public is deemed to have been given notice that the product is patented. That notice matters because it can affect the damages a patent owner may recover if someone infringes the patent.

Historically, patent owners often provided notice by physically marking the product or its packaging with the applicable patent number. That approach works well for some products, but it could be difficult for smaller products, products covered by many patents, and products whose patent coverage has changed over time.

The Leahy-Smith America Invents Act, enacted in 2011, modernized this system by introducing an internet-based alternative. Under 35 U.S.C. § 287(a), a company may mark the article or its packaging with “Patent” or “Pat.” followed by the address of a free public webpage that associates the patented article with the relevant patent number or numbers.

This change reflected the realities of modern product development. A single product may be covered by several patents, and a company’s patent portfolio may change as patents issue, expire, are corrected, or become irrelevant to a particular product. A webpage can be updated more quickly than a molded part, a printed carton, or a physical product label.

What Virtual Patent Marking Is

Virtual patent marking has two parts. First, the patented article itself should be marked with “Patent” or “Pat.” followed by the webpage address. If, because of the character of the article, the marking cannot be placed on the article itself, a label bearing the notice may instead be affixed to the article or its packaging. Second, the online page must associate identifiable products with specific patent numbers. Both parts matter: a webpage alone is not enough if the product does not direct people to it, and a product marking is not very useful if the webpage does not clearly connect products to patents. A simple physical marking might read: “Patent www.companyname.com/patents” or “Pat. www.companyname.com/patents.” The webpage should then identify the product by name, model number, SKU, version, or product family, and list the applicable patent numbers.

Why Virtual Marking Matters

Virtual marking matters for three audiences. For patent owners, it can support the ability to seek damages for infringement by providing constructive notice to the public. For competitors, it provides a way to check whether a product is associated with issued patents. For customers, researchers, and the general public, it promotes transparency by making patent information easier to locate and understand. It is also practical. Companies with large product lines or rapidly changing patent portfolios may avoid repeated changes to packaging and tooling. Instead, they can maintain a central patent notice page and update it as product lines change, patents issue, patents expire, or ownership information is updated.

How to Implement Virtual Patent Marking

• Identify products, models, versions, or product families that are covered by issued patents.
• Map patents to products: Confirm which patent numbers apply to each product.
• Choose a stable webpage address: Use a simple, long-term address that can remain available even if the website is redesigned. Make sure the page is available without payment, login, or special permissions.
• Organize the page so users can quickly match each product to one or more patent numbers. Use tables and headings to help users find products quickly.
• Mark the product or packaging: Use “Patent” or “Pat.” followed by the webpage address in a location that is practical and visible. If the character of the product prevents direct marking, place the notice on a label affixed to the product or its packaging.
• Update the page regularly: Review the list when patents issue, expire, are corrected, are assigned, or no longer apply to a product.
• Keep records: Maintain dated photographs or examples of the product and packaging markings, dated copies or screenshots of the webpage, a history of webpage changes, and records showing when each product began being marked. The webpage should remain continuously available, and redirects should be maintained if the company’s website is redesigned.

Examples of Virtual Marking

Example 1: Simple product or packaging marking. A small appliance box might state: “Pat. www.companyname.com/patents.” The webpage should then list the appliance by product name or model number and show the patent numbers that apply to that product.

Example 2: Product family listing. If several related products share the same patent coverage, the webpage might identify a product family, such as “Product A Series,” and list the covered models underneath it. This can be useful when products are sold in multiple sizes, colors, or configurations but share the same patented features.

Example 3: Table-style webpage format. A patent notice page can use a simple table with columns for “Product” and “Patent Numbers” and may optionally include a “Model or SKU” column. This format helps users search for a product and see the associated patents without guessing which patents apply. An example of this is presented below:

Conclusion

Virtual patent marking is a practical way to provide patent notice in a digital world. When done well, it reduces the administrative burden for companies while improving public access to patent information. The best virtual marking pages are clear, free to access, product-specific, and regularly maintained. The United States Patent and Trademark Office (USPTO) provides a comprehensive overview of virtual marking.

Virtual marking examples:

https://www.kimberly-clark.com/en-us/company/patents

https://www.sharkninja.com/patents.html

https://nest.com/legal/ip-and-other-notices/patent

https://www.arthrex.com/corporate/virtual-patent-marking

https://www.totani.co.jp/en/patent.html

https://support.google.com/product-documentation/answer/15146514?hl=en

https://www.paypal.com/us/legalhub/paypal/patent-page?locale.x=en_US