“Innocent infringement” – the defense every patentee dreads to hear; because if it rings true, the patent owner risks no entitlement whatsoever to claiming damages and an account of all profits made from the infringement. Proper patent marking is key and this should be very important to the patent owner in order for the full maximization of the privileges bestowed by their patent rights.

Singapore law does not statutorily require patent owners to mark their patented products. Even though proper patent marking – which entails marking the said product with its patent registration number – informs the general public of the patent. It also allows the patent owner to claim that the infringer had knowledge of the patent, regardless of whether that is correct or not.

In order for a patent to be properly marked, a visible specific patent number procured in that country must be on the product. If it is not possible to mark properly due to the character of the apparatus or system, an associated package holding the apparatus or system may be marked. It is insufficient for the product to just display the words ‘patented product’ as this phrase has no legal effect. The onus is on the patentee to make sure that the product is in actual fact patented, because to claim that it is when that is not so, is an offence, under the Patents Act.

In spite of this privilege, many products in the market are not properly marked with their relevant patent numbers. Some would claim that despite the mentioned benefits that come about because of patent marking, the action itself of marking the products is sometimes not very practical. Commercial reasons for disregarding patent marking entail the physical limitations as well as the fact that sometimes these markings are not ‘pleasing to the eye’. Also as one considers their market size and the requirements of each country regarding specific patent numbers, the process can become quite tedious, burdensome and expensive. As a result of this, many patent owners may choose to only mark products distributed within their larger markets with the proper patent marking and not be so vigilant within their smaller markets, such as Singapore.

Proper patent marking is very important as it helps to avoid innocent infringement, encourages patentees to give notice to the public that a particular article is patented and helps the public to identify whether an article is patented or not. These benefits need to be given the proper consideration because the advantages of patent marking are powerful and significant.