Commentary Part 2: Patents Section 15: Infringement: marking products with an internet link
60.This section amends section 62 of the 1977 Act, which concerns restrictions on the recovery of damages for infringement. Under section 62 the court or the Comptroller-General of Patents Designs and Trade Marks cannot award damages or make an order for an account of profits against an innocent infringer. The onus is generally on the infringer to prove his innocence and show that, at the date of the infringing act, he was not aware, and had no reasonable grounds to suppose, that the patent or published application existed. The 1977 Act makes it clear that applying the word “patent” or “patented” to a product without also including a reference to the specific patent number(s) is not a sufficient way to make people aware of the existence of a patent. Patent proprietors therefore have to mark their products with the specific patent number(s) as a way of providing public notice of their patent rights.
61.This section amends the 1977 Act to provide patent proprietors with an alternative way of providing this notice of their patent rights. Patent proprietors will now have the ability to mark their products with either the specific patent number(s) or the web address of a webpage which clearly associates the product with the relevant patent number(s). For example it may be appropriate for the webpage to identify the exact product concerned by including any relevant model numbers and variants that exist.