The question of whether software programs embodying patented processes need to be marked in accordance with the marking requirement as set forth under 35 U.S.C. § 287 is an unanswered issue. This article first analyzes the marking requirement in the United States patent system and then goes on to survey the rocky history of patents on software innovations. After noting that neither the Supreme Court nor the Federal Circuit has directly decided the issue of the applicability of the Marking Statute to software programs, the article analyzes recent federal district court and Federal Circuit cases, ultimately reasoning that the Federal Circuit would likely conclude that software programs embodying patented processes need to comply with the marking requirement of 35 U.S.C. § 287. Finally, the article concludes by discussing the ramifications of the Marking Statute to software patents and the software industry.
John LaBarre & Xavier Gómez-Velasco,
Ready, Set, Mark Your Patented Software!,
Rich. J.L. & Tech
Available at: http://scholarship.richmond.edu/jolt/vol12/iss1/4