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When patenting software, is it important the name you use to qualify the product? Example:

  1. Software product protected by US Patent No. XXXX.
  2. Technology protected by US Patent No. XXXX.

I prefer to use "Technology", as it is shorter than "software product", although what I'm really protecting is a software product...

Can this be used against me?

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2 Answers 2

up vote 6 down vote accepted

I believe you are asking about Patent Marking.

Patent Marking is when you indicate on your product that it is patented for the purpose of giving due notice to the world about your patent. It is not required, but it has very important benefits which is why most practitioners suggest marking your products.

35 USC 287 deals with giving notice by marking your product. The requirement is that the term "Patent" or the abbreviation "pat." be affixed to the product along with the patent number or an internet address where the patent number is provided and associated to the product. At first sight, the two suggestions you make seem to meet this requirement. In fact, you likely could simply write "Protected by US Patent no...." or just "Patent ...". As far as I know, there is no particular issue with characterisation of your product (as a "technology" or "software product"), but there is a danger if your mark associates your patent to a technology rather than the actual product. In other words, if your mark is merely an indication that you have a patent for a technology, rather than an indication that the product is patented, then you may have an issue. For this reason, I would at least avoid your second option. Instead, I would opt for "Patent ..." or if you want, "Product protected by US Patent ...".

Once you mark your product, make sure you track the status of your patent, and the state of your software (if it changes due to patches, new versions, etc...) and update the marking information as the situation changes.

It is important that substantially all your products (e.g. not just a few samples or demo versions) be affixed with the marking.

Will you be putting the mark on a DVD/BD, on a software startup screen or on an EUA?

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I'll be putting the mark on the "About" window of mt product. Thanks for the answer. I'll just use "Protected by..." as the shorter, the better. Great answer! –  John Assymptoth Sep 28 '12 at 15:39
    
On another note, in the first paragraph you say that there are benefits from marking your product. Can you please enumerate them. Would love to get a bit more of insight on this. Thanks. –  John Assymptoth Sep 28 '12 at 15:44

Assuming you're putting the marking on the box, in a help screen, or in the documentation (i.e., where the product with which it's associated is obvious) it's pretty routine to just say something like "Protected by one or more of the following US patents: XXXX, YYYY, ZZZZ", without trying to specify any more about product vs. technology.

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Not qualifying is even better. In case I qualify, is it important the name I use? –  John Assymptoth Sep 28 '12 at 15:09
    
@JohnAssymptoth: To be honest, I don't have a good answer to that -- I've never heard of anybody doing it, and at least right off, can't remember any ruling on it. My inclination would be toward using "product" rather than "technology" though -- a patent has to apply to something "tangible", which probably doesn't include "technology". –  Jerry Coffin Sep 28 '12 at 15:14

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