In UK law, marking your product to show that it has patent protection isn't required. You do not have to mark your products with patent details if you don't want to.
However, marking gives notice to the public that your product is protected, which may deter potential infringers. Not marking your products could also limit the amount of damages you may be able to recover if someone infringes your patent.
If you choose to mark your product, you must do so carefully. Marking a product with incorrect patent details may potentially give rise to third-party claims or fines.
What is patent marking?
Patent marking involves labelling your product with information about patent or patents that cover it. You can mark either a package or a product itself. The marking must include:
- the word 'patent' or 'patented'
- the patent number
- the country of patent application
If you have applied for a patent but the patent has not yet been issued, you may use the term 'patent pending'. Marking your product as 'patent pending' shows that you are pursuing protection for it. It doesn't infer the scope of protection or guarantee that the patent will be issued.
Risks of false marking
Patent marking that is incorrect is considered 'false marking'. Marking can be incorrect in a number of ways, including:
- if the indicated patent doesn't cover the product
- if the patent has expired
- if the patent doesn't cover the territory where the marked product is being sold
To benefit from the legal provisions related to marking, the marking must be substantial, continuous and up-to date. Remember that patents expire or could be abandoned. If you sell your product worldwide, you may need to customise the marking for different countries.
If you fail to update your marking, any third party may be able to raise claims of false marking.
Webmarking of patented products
From 1 October 2014, you can mark your product with a web address rather than the patent number and country. This is known as 'webmarking' or 'virtual marking'.
You can use webmarking in lieu of an actual patent marking on the product or package. The web address should point to a webpage where you clearly associate the product with the relevant patent number. You should keep this page up-to-date, reflecting any changes to the patent details for each of your products.
QR codes and virtual patent marking
If you use QR (quick response) codes on your products, be aware that these should not replace webmarking. While QR code is 'an address', it is machine-readable and therefore cannot provide all members of the public with notice of the relevant patent rights. If you wish to have a scannable mark, you can affix your textual web address with a QR code.
For more information, see detailed guidance on webmarking.
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