106 Iowa L. Rev. 2049 (2021)

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Abstract

The U.S. patent system is deficient in giving the public proper notice of what technologies are under patent protection. The current system relies on patent marking, which involves imprinting products with patent information that cover the product, to give constructive notice to the public. Recent data indicates that marking products with a website—called virtual marking—is not widely used. The problem lies with the overall costs, risks, and impracticability of marking certain products. Given the already dubious nature of constructive notice, the lack of virtual marking is a sign that patent law should improve its notice system. The lack of notice contributes to innocent infringement and an overall high societal cost that cuts against innovation. This Note argues that a unified patent-product database would improve notice to inventors to prevent infringement and generally encourage innovation. The database could borrow ideas from an effective database like the Food and Drug Administration’s “Orange Book,” a well-established drug database for the pharmaceutical industry. This Note also looks into how other components of the Patent Notice System would be improved, including the current U.S. patent database and the patent disclosure system.