For Your Attention, Please: Virtual Marking Of Patented Software

Patent marking entails marking a patented product with its relevant patent number. Proper patent marking can help obtain higher monetary damages in a patent infringement lawsuit, as marking means that infringers cannot claim ignorance of liability. However, if there is no marking, damages are likely to be calculated only from the time of actual notice. For tangible or physical products, it is convenient to mark a patented product with the relevant patent number. However, the marking of patented software raises unique problems as it is not feasible to fix a mark on the software itself. This note discusses the challenges associated with the marking of software products and possible strategies to overcome the same.