Recent changes to UK patent law allow “virtual marking” or “webmarking” of products using a web address, pointing potential infringers to a webpage listing details of patents and/or pending applications associated with the products.
This practice has been widely adopted in the US since a similar provision of the America Invents Act came into force in March 2013 and is gaining popularity here in the UK.
It is important that patent markings are clear and kept up to date, to ensure that sufficient notice is given to potential infringers of the existence of all relevant patents and pending applications, while avoiding the potentially severe consequences of falsely marking a product as patented. (It is a criminal offence in the UK punishable by fine and whereas we know of no prosecutions to date and the Crown Prosecution Service would not relish such a case, the greater risk would be from a private prosecution brought by an aggrieved competitor.) Webmarking is an efficient and cost-effective way of ensuring all patent markings are kept up to date without the need to mark patent details directly on the product. It also provides a convenient point for the public to access current patent information in relation to a product and thereby negate the defence of “innocence” in any award of damages.
The product or its packaging (or both) should be marked with a web address pointing to the relevant webpage on the company’s website.
The webpage should clearly associate each product with the relevant granted patent and/or published application numbers. The products should be clearly identified, for example by including any relevant model numbers and variants that exist. Each time this is updated, a record should be kept (preferably by the patent or legal department) of the change and the date it is posted. As a guide, we provide a sample web page template that is generally suitable for marking patented products in the UK and US: