The Cost Of Improper Patent Marking

Awards of damages in cases where patent infringement is found may be dependent on whether the patent owner has marked goods sold under the patent with the number of the relevant patent or patents. 35 USC 287(a) provides:

In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.

On the other hand, to deter patent owners from making unjustifiable markings that products are patented, 35 USC 292 makes it an offense to mark an article as "patented" or "patent pending" when this is not the case if such marking is "for the purpose of deceiving the public".