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IP Litigator: Strategies for Patent Marking Software-Related Inventions


NEW YORK, August 5, 2011 -- In a recent issue of IP Litigator, Baker Botts L.L.P. lawyers Paul Ragusa and Eric Faragi discuss how the current patent statue requires patent owners who make, offer for sale, or sell products covered by an apparatus patent to provide notice of their rights by marking a patented article, or in some cases its packaging, with a suitable notice.

Failure to suitably mark can have a significant financial impact on such a patent owner, as up to six years of potential damages may be lost under the statute, i.e., during the period before the patent owner provided an accused infringer with actual notice of its infringement allegations, Paul and Eric note in their article.

In the wake of the U.S. Supreme Court’s ruling in Bilski, software-related inventions are as important as ever. However, marking software products with a suitable patent notice is not as self-evident as with physical products, they write.

What should be marked? How should the marking appear -- electronically when the software is used, or physically on the packaging, or both?

This article considers the applicability of the patent marking statute in such circumstance and provides practical strategies for patent marking in the context of software-related inventions.

The complete IP Litigator article is available here

Paul Ragusa is a partner in the Intellectual Property Department in the firm’s New York office. His practice encompasses all aspects of intellectual property law with emphasis on patent, copyright and related antitrust litigation, patent portfolio management, counseling and licensing. His bio is available here.

Eric Faragi’s practice includes patent litigation, patent prosecution, and client counseling involving a wide variety of matters pertaining to electrical, mechanical, and business method patents. His bio is available here.

About Baker Botts L.L.P.
Baker Botts is an international law firm with over 725 lawyers and a network of 13 offices around the globe. Based on our experience and knowledge of our clients’ industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Throughout our 170-year history, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit

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