Last April I broke my ankle, and for those of you who read my first article I can assure you that the fracture was not as a result of wearing high heels on Buckingham Palace lawn but rather as a consequence of tripping over a stone. Anyway as part of physiotherapy and in order to improve muscle strength in my ankle I purchased an exercise platform overlaying a central pivot, more commonly known as a “wobble board”. My wobble board is a very neat little item with an ingenious adjustable spherical sectioned pivot that can be manipulated to three different heights and hence is of variable difficulty for the user. Clever little device providing you don’t fall of and break the other ankle...and according to the packaging patented too! However, the marking is only discernable on the box in which it arrived not on the pivot mechanism to which the patent relates.

Patent marking is relatively straight forward, the marking requirement is satisfied by literally marking the word “patent” or the abbreviation “pat.”, together with the number of the patent on the patented article (e.g., Pat. 5,810,703 which pertains to the wobble board in question). If the nature of the article will not allow such marking, then the packaging containing one or more of the patented articles can be so marked. Note, however, that various courts will not accept the marking of packaging per se unless there is a sufficient reason as to why the article itself was not marked. Also, if more than one patent applies to the article, then each applicable patent number should be listed. Marking literature (e.g., marketing pamphlets and materials) associated with patented articles is also helpful, but on its own may not be sufficient to satisfy the marking requirement. In addition, the marking must be “substantially consistent and continuous” in order to provide constructive notice to the public. The safe bet here is to mark substantially all, if not every single article that is released to the public. In the example of my wobble board it would be perfectly possible to mark the article itself rather than its packaging and since there is only one patent for the pivot itself the applicant would be advised to start marking the item properly.

Lady Lisa Markham
lbrown@hgf.com

HGF Law
Specialists in Intellectual
Property

HGF Patent and
Trade Mark Attorneys