Now days virtually every golf club and golf ball is covered by at least one patent. So why is it that very rarely do you see a patent number on a club head or on the golf ball packaging?

In the old days clubs wore patent numbers on their soles as a proud stamp of innovation. Just check out the sole of an early Tight Lies® club. I can’t even recall the last time I saw a patent number on a club in a pro shop (and I am one of the few people that pay attention to it).

There are significant benefits with properly marking your products.

Current patent law no longer requires that a patented article be marked with the patent number in order for the owner to recover damages from an infringer. However, the law provides some hurdles for the owner of an unmarked article that make patent marking a worthwhile consideration.

First, patent owners need to understand the legal requirements for a valid marking of a patent. 35 U.S.C. Section 287(a) states that a patent owner "may" mark a patented article. Notice the “may” language. A valid mark consists of the word "patent" or the abbreviation "pat.," together with the patent number on the article. In cases where the nature of the article would not practically allow for direct marking, marking may be provided on a separate attached label (such as may be the case for golf balls).

The marking places prospective infringers on constructive notice of the patent and allows for recovery of damages for infringement without proof of notification to the alleged infringer of the infringement.

However, when a patent is not properly marked, the law provides that no damages shall be recovered for infringements occurring before the infringer was given notice of the infringement and thereby given a chance to stop the infringing activity. When such notice is properly given, and the infringer continues the activity, recovery is limited to infringing acts committed after the notice. After all, a failure to mark deprived users of a fair chance to appreciate the dangers of possible infringement.

David Dawsey – The Attorney Leaving a “Mark” on the Golf Industry