The Virtues of Virtual Marking in Patent Reform
By McCaffrey, CoreyINTRODUCTION The world is full of reminders that we are surrounded by inventions. When we see a light bulb, we remember Thomas Edison.1 When we hear a telephone, we recall Alexander Graham Bell.2 But when we plot equations with a Texas Instruments (TI) graphing calculator, do we think of Ann Phipps? After all, like so many other products, the back of the TI-83 Plus is clearly marked with a list of patent numbers,3 including two naming Phipps as an inventor.4
In all probability, few of us know that Phipps was not only a product manager in TI's Consumer Products Division5 but that she was also one of the inventors of a "Calculator with Table Generation Capability."6 By marking the back of the calculator with the number of this patent, TI asserted that the TI-83 Plus embodied this invention. Yet, of all of the potentially relevant patents assigned to TI, Phipps's patents were two of only three listed on the back of this calculator.7 Surely, TI's primary intention was not to help make Phipps famous. More likely, TI marked patents on its product for legal effect.
Patent marking is defined by the United States Patent Act as the act of physically labeling a product or its packaging with the identification numbers of patents that ostensibly protect the inventive ideas embodied in the product.8 The purpose of patent marking is to help prevent innocent infringement. 9 Marking provides constructive notice that a product is protected by the listed patent(s).10 Notably, there are also penalties for abuses of the patent marking system, known as "false marking."11
This Comment argues in favor of permitting "virtual marking," whereby a patentee would be permitted to mark products with reference to a website that provides information about the product's patent protection.12 For example, imagine that instead of marking the back of a calculator with "Pat. 5532946," TI marked it with "Patents: http://ti.com/patents/calculators," and that website displayed nothing but "Pat. 5532946."13 At first glance, the distinction might seem trivial, but even this simple example of virtual marking has far-reaching implications for patent marking law.
The major advantage of virtual marking is that it untangles marking from the manufacturing process. Physical marking is expensive, inflexible, and increasingly inapplicable (e.g., for services and Internet products, which have no physical embodiment).
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For example, patentees must change their marks when their patents expire or become invalid in the course of litigation. But high manufacturing costs prevent patentees from changing their marks cheaply and efficiently.14 Virtual marking would enable
Does this meaning render biblical female imagery for God invalid? Within the framework of the faith of the church arising in response to the treasure of God's historical self-disclosure or revelation, theology, in Anselm's classic description,
By your reasoning no one can patent an HTML editor, or a programing language compiler, picture editing program or even a file format or file system at all as they are all derivative of prior art. All patents on FAT, FAT32, NTFS etc. are all invalid.
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