NFTs and Virtual Patent Marking

Congress initially required (in 1842) that patentees and assignees of patents mark their patented articles, imposing a fine for failing to do so. Presently, patent holders who fail to mark may be precluded from seeking compensatory damages prior to the date that an infringer was put on actual notice of alleged infringement. While the original $100 fine from 1842 would be unlikely to catch the eye of modern executives, board members, and shareholders, the loss of past damages due to a missing mark most certainly would.

Physically marking every manufactured product with accurate, up-to-date patent numbers may be a daunting task. Designing and developing new product molds for newly issued patents, correcting old or inapplicable patent numbers, and even disposing of product stock that cannot have markings corrected: all of these actions can increase production and inventory costs. Congress saw fit via the Leahy-Smith America Invents Act of 2011 to update the marking rule (codified in 35 U.S.C. Section 287) by allowing for fixing on the patent article "the word 'patent' or the abbreviation 'pat,' together with an address of a posting on the internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent." Web marking seeks to facilitate patent marking, while still keeping the public appraised of the federally protected rights of the patent holder.