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Little Known Patent Law Forces Marketers to Reexamine Their Packaging

Posted by Paul Christ September 02, 2010

New Breed of Patent Claim Bedevils Product Makers (Wall Street Journal)

For many products, the packaging decision is not one that should be made lightly.  As we mention in our Product Decisions tutorial, a product’s packaging serves many functions such offering protection and enhancing a product’s visibility.  It can also be an expensive decision since it can significantly raise the product’s final cost.

However, not all marketers have the same level of concern when it comes to packaging.  While leading consumer products companies see packaging as a decision they regularly make (e.g., adding to the label information on a short-term promotion), for many other marketers the packaging decision is far down their list marketing activities.  For these products, packaging design changes are made infrequently and, for some products, the package may never have changed since the product was first introduced.

Whether marketers routinely change their package or have not changed it in many years, the information found in this story may suggest changes are needed and soon.  The issue here deals with the placement of patent numbers on packaging.  Marketing companies will generally list the patents covered by a product somewhere on the package.  However, a relatively unknown element of U.S. patent law says that marketers cannot include this number on a package if the patent has expired.  This could force many companies to spend money to update their packaging or risk legal action.

Until late last year, the most a violator had to worry about was paying a $500 penalty for misleading the public. But in December, the Court of Appeals for the Federal Circuit in Washington ruled that defendants could be held responsible for up to $500 per offense. Lawyers for product manufacturers now fear clients are liable for up to $500 for every tube of mascara or box of garbage bags marked with an expired patent—an error that turns out to be quite common.

Should marketers whose packaging shows an expired patent number be given a warning first before facing legal fees?

Image by The Consumerist

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