Just about every piece of new technology incorporates intellectual property from patents to trademarks to copyrights. A cell phone has somewhere between 100 to 1,000 patents covering everything from the screen to the battery. I recently purchased conduit for an electric cable that has three patents identified along the side. My television Quick Start Guide has a page with several dozen patents listed along with copyright and trademark notices.
I understand what is being claimed as proprietary when I see a copyright or a trademark. In the Quick Start Guide for my TV, the copyright covers the step-by-step instructions and associated images on how to connect the TV and use the various features that prompted me to purchase this product. This specific TV is a name-brand device that I know and trust, and that name is protected by trademark law. But in looking at the Quick Start Guide, I have no idea what these several dozen patents cover. I could look them up online, and after several hours, I could figure out what each patent covers, but then again, I have been reading patents since about the time my most recent law partner entered high school. The average consumer probably has never had the pleasure of reading a patent. And that’s my point.
A single patent may have more than 100 claims. Each claim is an individual piece of property. The patent claims include language that, under the law, is intended to be understood by “a person of ordinary skill in the art at the time of the invention.” That is not the average person; for the TV, it is the average electrical or software engineer familiar with the electronics which comprise the device. To say that the general public is informed of the claimed inventions in the Quick Start Guide is inconsistent with how the invention is described and does not reflect reality. Yet the law says that because the manufacturer identified a series of numbers on the Quick Start Guide, the consumer is presumed to know and understand each and every one of the patents covering that new TV.
Why is this important? The patent marking statute provides that “[p]atentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented” by marking the article in a method provided by the statute. 35 U.S.C § 287(a). Marking under the statute is permissive, not mandatory. While permissive, there is a consequence if the patent owner chooses not to mark: “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.” Id. “A licensee who makes or sells a patented article does so ‘for or under’ the patentee, thereby limiting the patentee’s damage recovery when the patented article is not marked.” Amsted Indus. Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 185 (Fed. Cir. 1994) (citing Devices for Med., Inc. v. Boehl, 822 F.2d 1062, 1066 (Fed. Cir. 1987)).
If the invention is required to be interpreted by a person of ordinary skill in the art at the time of the invention, how can the average consumer purchasing a TV be “informed of the inventions” therein by seeing the patent numbers listed in the Quick Start Guide? Answer: They do not. This is pure fiction.