Not usually. The patent marking statute (35 U.S.C. § 287(a)) is phrased in this particular way:
"Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented..." (emphasis added).
Thus, the statute applies only to patented articles, which includes articles of manufacture and machines, but which does not include method/process patents.
The Federal Circuit has held that the notice provisions of the marking statute do not apply where the patent claims only a process, even if the patentee produces a product that practices or embodies the claimed method (Crown Packaging Tech. Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1316 (Fed. Cir. 2009)). The Federal Circuit has also held that where a patentee asserts a patent that includes both method and apparatus claims, application of the marking statute depends on which claims are asserted (Id. at 1316-17). If the patentee asserts only the method claims, the notice requirements do not apply — even if the patentee may sell a device that embodies both the patented method and apparatus claims (Id.). But if the patentee asserts both apparatus and method claims, then the notice requirements of the marking statute do apply. Am. Med. Sys. Inc. v. Med. Eng’g Corp., 6 F.3d 1523, 1538-39 (Fed. Cir. 1993).
"Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented..." (emphasis added).
Thus, the statute applies only to patented articles, which includes articles of manufacture and machines, but which does not include method/process patents.
The Federal Circuit has held that the notice provisions of the marking statute do not apply where the patent claims only a process, even if the patentee produces a product that practices or embodies the claimed method (Crown Packaging Tech. Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1316 (Fed. Cir. 2009)). The Federal Circuit has also held that where a patentee asserts a patent that includes both method and apparatus claims, application of the marking statute depends on which claims are asserted (Id. at 1316-17). If the patentee asserts only the method claims, the notice requirements do not apply — even if the patentee may sell a device that embodies both the patented method and apparatus claims (Id.). But if the patentee asserts both apparatus and method claims, then the notice requirements of the marking statute do apply. Am. Med. Sys. Inc. v. Med. Eng’g Corp., 6 F.3d 1523, 1538-39 (Fed. Cir. 1993).
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