Virtual Patent Marking – Did this company’s attempt fail? - Cesari-Reed
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31 Aug Virtual Patent Marking – Did this company’s attempt fail?

I have been suffering with a sinus infection for a week or so. On my way to work, I stopped by the store to pick up a box of facial tissues, in this case, KLEENEX® brand tissue “Thick & absorbent”. As I was opening the product, I noticed that the product packaging included a patent marking according to the new America Invents Act marking statute (35 USC §287(a)). In particular, Kimberly-Clark Worldwide, Inc. uses the new AIA “Virtual Marking” for patent marking of its product.

Generally, I have little reason to look at such things, but, being a patent geek and having noticed the virtual marking, I decided to check out the web page identified in the patent marking (www.kimberly-clark.com/patents). Upon visiting this URL, my web browser was redirected to the following page (https://www.kimberly-clark.com/en-us/brands/adult-care).

Okay, so the first page “adult care” has nothing to do with the product I purchased. The left side of the page included a list of selectable categories including “Adult Care” (which is selected), “Baby & Child Care,” “Family Care,” “Feminine Care,” and “K-C Professional.”

In my sinus infection-induced brain fog, I tried to determine which category applied to my purchase. The brand appeared under “Family Care.” (https://www.kimberly-clark.com/en-us/brands/family-care) On the right side of the page next to the brand, the page included two pull-down menus: “Select Country” and “Patents”. Selecting the country takes you to a website for the selected country, which is not related to patent markings. Selecting the patents pull-down menu reveals a list of options entitled “KLEENEX® Brand Products” with specific dates. Selecting one of the options caused my browser to open a PDF document, which included a plurality of product names, each of which was followed by a list of patent numbers.

I clicked through each of the PDF documents, trying to find KLEENEX® brand tissue “Thick & absorbent”. After 30 minutes of searching, I was unable to definitively identify the product that I purchased. I even clicked into some of the patents, but could not determine whether the particular patents about Creped paper were related to the particular product.

Under the AIA marking statute, a patent owner can collect damages under 35 U.S.C. §287 only if adequate notice is given of the patent(s) at issue, which notice can be provided via actual notice (i.e., a letter sent to the infringer alerting the infringer that his or her product infringes the patent) or constructive notice (i.e., by affixing the patented product with a patent marking).  The AIA permits the user to put the public on constructive notice by printing a patent marking (as in the past) on the product or by providing a “virtual marking” that includes the word “Patent” or the abbreviation “Pat.” and an Internet address at which the patented article is associated with one or more patent numbers.

Does the virtual marking by Kimberly-Clark actually satisfy the patent marking statute?  In my opinion, it does not because the linked website does not identify which patents apply to the product.

Thinking about the nature of the Internet and virtual marking in general, would a broken URL link satisfy the statute?  I would argue no, because a broken URL provides no notice.

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