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FAILURE TO MARK - Easy to Neglect, Devestating to Affect


Introduction
   

"It is a mark of many famous people that they cannot part with their finest hour."

- Lillian Hellman




You did everything perfect. The claims you wrote are a work of art, and no one can argue they aren't infringed. The prosecution was short, sweet and free of any attack point for the infringer. The inventors were brilliant on the stand, and your expert witness was attractive and articulate, with not just one, but two Nobel prizes to display. The judge went to the same law school that you did, and scowls with disgust every time opposing counsel opens his reptilian mouth. The judge also belongs to your college fraternity, and has given you the secret fraternity sign every time he mounts the bench. The jury loves you, and is wishing they had a U.S. patent so they could retain you to represent them. As expected, the jury finds your client's patent valid and willfully infringed, taking less than ten minutes to do so, and the judge beams approval. But then the greatest triumph of your life to date turns to ashes as the judge, with a tear in his eye, announces sadly that your client gets not a nickel, and your client turns on you like a rabid dog. How could this nightmare happen, and how can you make sure it never happens to you? Mark, my friend, make sure they mark.

A basic principle of US patent law is that no one can be held accountable for infringement of a patent with having notice of that patent. Wait a minute, you say! That can't be true. Many a defendant in a patent suit has learned of the patent for the first time when they were served with a Complaint. Ah, true enough, because the required notice can be either actual or constructive. The patent law puts an obligation on all of us to be aware of the thousands of US patents that issue every week, and to avoid infringement of any and all that are valid. The mere existence of the patent operates as constructive notice to all infringers.

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