Lawyer Article

Published in the October 19, 2004 issue of Southeast Tech Wire.

It is commonly known that a patentee may recover monetary damages for patent infringement. What may not be commonly known, however, is that infringement damages do not automatically start to accrue on the date infringement begins. Instead, the damages period begins on the date that the infringer receives either constructive or actual notice of the infringement. Effective constructive notice means complying with the patent marking statute, 35 U.S.C. § 287(a) - by marking a patented article with the patent number, preceded by the word “patent” or its abbreviation “pat.” Effective actual notice means directly notifying the infringer of the infringement, most commonly by way of either a letter or service of an infringement complaint. Since damages do not begin to accrue until the patentee gives either form of notice, it is imperative that the patentee do so as early as possible and in compliance with applicable law. At the same time, one must avoid mismarking a product, i.e., patent-marking a product that is not covered by a patent, because doing so can result in monetary liability.

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