- Published: 31 May 2017 31 May 2017
By Jeffrey C. Norris, Partner, Standley Law Group LLP
Patent owners are required to provide notice to an infringer under 35 U.S.C. § 287 in order to be able to collect damages for infringement. Failure to provide proper notice of the patent rights can prevent the recovery of damages, which could be costly. Damages are only available to compensate for infringement that occurs after effective notice has been given to the infringer.
Effective notice to an infringer may be either actual or constructive. Actual notice consists of directly contacting the infringer to provide notice of the infringement. While actual notice is effective, there is necessarily a period of infringement prior to the notice for which damages may not be recovered. Constructive notice may eliminate that lag time by automatically providing notice to the public that an article is patented. According to case law, the constructive notice must be “substantially consistent and continuous” in order to ensure that the public is adequately informed of the patent rights. When there is effective constructive notice prior to the infringement, damages will be available once the infringement takes place.