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Virtual Patent Marking

QR Codes: Scannable Virtual Patent Marking

As matrix barcodes (e.g., QR codes) have become somewhat prevalent, the question arises as to whether QR codes can be used to satisfy the virtual patent marking requirements.

The statutory basis for virtual patent marking is 35 U.S.C. § 287(a), which includes that notice may be given by “by fixing thereon the word ‘patent’ or the abbreviation ‘pat.’ together with an address of a posting on the Internet.”

The question is, what is meant by “an address”? Or, stated another way, can “an address” be in the form of a matrix barcode, such as the QR code?

This language was added in 2011 by the Leahy-Smith America Invents Act. It doesn’t appear that this language has been addressed by the courts.

While a QR code is “an address,” it is in a machine-readable rather than human-readable form. Since it is likely that “an address” would be construed as meaning something that is human-readable, best practice should continue to be the use of a human-readable address (i.e., a textual URL). 

However, there is the option of appending your text with a matrix barcode or QR code. This gives you the convenience of having a scannable mark, while avoiding problems later if the QR code alone is found to be outside the scope of the marking statute.

Below is a working example that VMarked customers can use. When you scan the QR code below, it will take you directly to the www.vmarked.com homepage.

Be sure to add your product’s number or other term so that it’s patents can be found from the VMarked home page. For example, near the image you could add something like “Search: R2D2” if the model number of the product was “R2D2.”

Patent: VMarked.com











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