The legal designations of “patent pending” and “patented” are commonly used to deter third parties from infringing your patent rights. But why should you bother to mark inventions as patent pending or patented?

Aside from acting as a commercial deterrent; in patent infringement proceedings, recoverable damages might not be awarded (or order for an account of profits might not be made) against a defendant who can prove that he was not aware, and had no reasonable grounds for supposing, at the time of the infringement that the patent existed.

You can avoid such restrictions on the recovery of damages for infringement by marking your invention with the legend “patent pending” or “patented” (as the case may apply). However, it is also necessary for you to accompany the legend with the requisite patent application or patent number(s) in order to circumvent any restrictions.

But before you start marking all of your inventions with a legend as a precautionary measure, take heed that if you represent an invention as patent pending or patented in the absence of a patent application or patent, you may commit a summary or criminal offence.

Marking your inventions has just become easier in the UK, where you now have the option of marking your invention with a web address (instead of the legend “patent pending” or “patented” and the patent application or patent number). The web address must direct to a webpage, which clearly sets out the patent application or patent number(s) relevant to your invention. It will likely need to be continually subsisting and accessible to third parties, and be kept up to date with changes in patent rights. Also be aware that indirect web addresses, such as barcodes or QR codes, will likely not suffice as a legal designation under this provision.