New Virtual Marking Provision In Patent Reform Brings Patent Protection Relief

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ANN ARBOR — An obscure change under patent reform in the area of product markings makes it easier for manufacturers and consumer product companies to protect their patents and keep patent information current without having to worry about referencing patent numbers or patent-pending status.

That’s the word from Eric Sosenko, a shareholder in the Ann Arbor office of the intellectual property law firm Brinks Hofer Gilson & Lione.

The change is called virtual marking. It requires only that the company that owns the patented product to mark the product or the product packaging with the company’s Web site.

“The Web address is now considered adequate to cover a variety of patent situations,” explains Sosenko, who leads Brinks’ patent reform task force. “The hassle of marking a product is eliminated with virtual marking because the Web site can have a page identifying the patent for the particular product.”

Patent reform also eliminated the $500 false marking fine that could be levied for each product that did not have a valid patent number or status listed. The lure of the fines, which could run into the tens of thousands, created a cottage industry of individuals and groups who trolled products for false marks and sought to collect money on each improperly marked product.

“The elimination of the fine and the introduction of virtual marking are two examples of where patent reform gets it right,” Sosenko said.

Before virtual marking, there was the inclination by some in the consumer products industry not to mark all of their products because the marking could become outdated when the patent expired or was otherwise changed. But Sosenko says virtual marking should shift that hands-off approach, which can result in a patent holder’s inability to recover damages for patent infringement.

“To claim an infringement, the infringer has to have known the product was patent protected,” Sosenko said. “With the ease of virtual marking, there’s a much stronger argument to be made for patent owners to adopt a comprehensive product marking strategy.”

Brinks Hofer Gilson & Lione has 140 attorneys, scientific advisors and patent agents who specialize in intellectual property litigation and all aspects of patent, trademark and copyright law. The firm also advises on issues relating to intellectual asset management, trade secret, unfair competition, and technology and licensing agreements. Brinks routinely handles assignments for companies in the electrical, chemical, and mechanical engineering sectors; the biotechnology, pharmaceutical and nanotechnology industries; and for companies whose work relates to Internet and computer technology law. Founded in 1917, Brinks is based in Chicago and has five additional offices across the country, including Ann Arbor.

More information is available at www.usebrinks.com.

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