Patent Marking and Infringement Damages

A common patent question is whether products should be marked with any relevant patent number. The simple answer is that marking provides “constructive notice” to infringers and may allow a patentee to collect greater damages in an infringement suit.

According to the marking statute:

In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice.

35 U.S.C. 287(a). As an added bonus, patent marking plates are becoming popular collectables.