OK, I can't find that case. Maybe I was just dreaming,
but if I run across it later I will forward it to you
off list.
More important in the realm of marking is the form of the claims. (In patent law it always comes back to the claims.) Sec. 287 only punishes for failing to mark patented articles, therefore there is no "failure to mark" defense when method claims are being enforced. This is a good reason to avoid those psuedo-machine claims that people use to get around the increased scrutiny of business method claims.
Assuming you have an apparatus claim you only have to mark articles that meet that claim. The software may be defined as an article or the software may be defined as a component of the finished article and therefore you would need to mark the component as "for us under US Pat. X,XXX,XXX." or some such marking. Remember that the policy of 287 is to give notice to the user of the article, therefore think how a judge would view your efforts in a "totality of the cirumstances" view where direct marking on the article is not feasible. Abobe does a pretty good job of listing all patents when the software is loading each time it is used. That seems similar to marking on the side of an article, you see it every time you pick it up.
As a final note, Chisum is always the best reference for these sorts of things, but Chisum's Patent Law Digest is the quickest if you are already familiar with the issue and just want a quick update. These books have saved my weekends, and hence my marriage, many times.
Best of luck and sorry to those not interested in patent law.
Keith
> I'm headed to the ariport, but I think I saw a case
> on
> point in the last couple of weeks. It had to do with
> embedded software in telephony equipment. Check the
> Patently Obvious Blog archives for the last few
> weeks.
>
> I'll try to get you a better answer later if someone
> else doesn't.
>
> Keith
>
> --- Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> > This is a bit off-topic, and if anyone can refer
> me
> > to a patent equivalent
> > to this list, I'd appreciate it.
> >
> > Section 287 of the Patent Act requires that a
> > patentee who makes a product
> > covered by its patent mark that product; and
> failure
> > to do so will estop
> > the patentee from obtaining actual damages
> incurred
> > prior to actual notice
> > of infringement.
> >
> > I'm interested in the marking requirement as it
> > applies to software. If
> > the software is distributed on a CD, the CD can be
> > considered the product
> > and marked accordingly. But what about software
> > that's electronically
> > delivered, say, by email or download, rather than
> by
> > a transfer of a
> > physical object?
> >
> > Is anyone aware of any cases or articles that
> > discuss this? I've found no
> > cases, and only one article, Carl Oppedahl's
> "Patent
> > Marking of Systems,"
> > 11 Santa Clara Computer & High Tech L.J. 205
> (1995).
> > But the Oppedahl
> > article, while informative, is really directed
> > toward another question,
> > that of marking patented systems where the
> > components may be
> > geographically scattered.
> >
> > Any references would be welcomed.
> >
> >
> >
>
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