Patent infringers must have notice of a patent before they can be liable for patent infringement damages. Notice can come in many forms, including by lawsuit, cease-and-desist letters, or proper patent marking. 35 U.S.C. Section 287(a) permits recovery of damages based on the constructive notice provided by proper patent marking, even where no actual or direct notice to the alleged infringer has been given.

OceanTomo LLC, the Chicago-based company that brokers deals for IP portfolios and hosts live patent auctions, has recently launched a web site dedicated to virtual patent marking. See www.patentmarking.com. Its purpose is to provide free public information linking products and services to their associated patents. According to the website, information can be posted in three forms: (1) from the actual product manufacturers or service providers themselves; (2) from observations of registered users; and (3) from validated information provided by Ocean Tomo and/or a trusted affiliate organization.

OceanTomo espouses virtual marking as a way to avoid the hassles associated with actual product marking, while also helping to prevent false marking charges. If patent reform measures were to pass that included a provision permitting virtual marking, OceanTomo states, product manufacturers could replace the specific number on the product itself with a pointer to a website that has the patent information for that product.  

Will this be the wave of the future for patent marking? Tough to say. Within the field of patent law, patent marking is a fairly black-and-white principle in a sea of gray. Your product is either properly marked or it isn't. While one can see the benefits to OceanTomo as an information aggregator (are we still saying "eyeballs" in 2010?) and service provider (minimum annual subscription is apparently $5,000), the benefits to the potential patent enforcer may be less apparent. If OceanTomo is calling for a switch from marking your product with a patent number to marking it with a website pointer, then doesn't the product still need to be marked somehow? Not sure where that hassle is eliminated, although I suspect it could make things easier when a product is covered by many patents and the product owner has an electronic means to update the patent list. Still, what if the site goes down for a couple of hours? Will an alleged infringer have infringement windows of opportunity as a result? Until the kinks are worked out and any legislation is fully developed, it may be tough to get virtual marking permitted under Section 287.