America Invents Act provides patent marking relief (this is not good)

I noted before that Obama’s patent reform law from 2011 (the America Invents Act) made almost no significant—or good—changes to patent law, despite the patent bar pretending that this was “major” or “radical” change (The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly). The one good thing the law did was to broaden the prior commercial user defense, perhaps the only significant positive change in US patent law… ever. But it did not reduce patent terms or penalties, get rid of injunctions, provide an independent inventor defense (one of the reforms proposed by groups like the EFF, among others), eliminate patent trolling or software patents. And the AIA made things worse in a number of ways:

• The best mode defense has been virtually eliminated.
• The PTO can now prioritize examination of inventions of national importance or for a high fee.
• The penalties for “false marking” have been drastically reduced.

Of course, we now see patent practitioners cheering these changes. E.g., USPTO’s fast-track examination: A case in point, and America Invents Act provides patent marking relief, both from Inside Counsel. The latter article bemoans the fate of companies who lose their right to obtain infringement damages if they don’t provide notice on their products that they products are patented. After all, this is not fair—patent trolls (“non-practicing entitites”), after all, don’t have to provide such notice. So instead of arguing that maybe patent trolling should be curtailed, the natural pro-patent instinct is to argue that “practicing entities” should find it as easy to extort money from innocent victims as patent trolls do. To-wit:

Patent owners that practice their invention are at a disadvantage compared to nonproducing patentees. The patent marking statute, 35 U.S.C. § 287(a), says that patentees that make and sell patented products or authorize others to do so, may mark their patented products and put the public on notice that the product is patented. However, failure to mark a patented product made or offered for sale limits the infringement damages available to the patent owner. In the absence of patent marking, damages are recoverable only for infringement that occurs after the infringer received notice of the infringement. Thus, for patent owners that make and sell a patented product without marking it, the patent marking statute operates as a forfeiture of damages, which may be substantial depending on the duration of infringement prior to providing the infringer with notice. There is no corresponding risk of forfeiture for nonproducing patentees.

From a practical standpoint, one of the challenges many patent owners face is the manufacturing cost of changing tooling and dies when a patent issues for a product that it may have been making and selling for years. This challenge is further complicated by the fact that a product, or components or subsystems of the product, may be covered by multiple patents, each with a different expiration date. From a legal standpoint, it may not be possible to know which patent or patents are likely to be most important from an enforcement perspective and which are most critical to be included in the patent marking strategy.

The recently enacted American Invents Act (AIA) provides some relief. Patent owners are no longer required to include the patent number on the product or packaging. They can now simply include the word “patent” or “patented” or the abbreviation “pat” together with an address of a posting on the Internet that associates the patented article with the patent number. The site must be accessible to the public free of charge. As a result, patent owners can now update a web site with their products’ patent information rather than changing their manufacturing equipment each time a patent issues or expires.

The AIA also reduces the risk of exposure to false patent marking lawsuits. …

Yeah, we wouldn’t want people to suffer any costs at all from using threats of state force against their competitors. Why make it easy for potential victims to know that they might be subject to a patent lawsuit? Why penalize a company for getting the benefits of using the patent extortion monopoly but not warning the victims? Why require the patentee to disclose the best mode, when the entire idea of the patent system is the “patent bargain”: the grant by the state of a temporary monopoly privilege “in exchange” for revealing to the public information (including best mode) that would otherwise be kept as a trade secret? And notice: “Patent owners that practice their invention are at a disadvantage compared to nonproducing patentees.” Yeah, but they are not at a “disadvantage” with respect to smaller companies and victims of their extortionate patent lawsuits, now, are they? Obama: SUCH a “reformer.”