Are text and images in the patent copyrighted?

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Sometimes, during a patent research, I found patents which comprise one or more similar images and/or text paragraphs. Are text and images in the patent copyrighted? Does any 3rd party, other than inventor and patent attorney, who filed 1st application, is eligible to copy-paste some paragraphs from the 1st patent to the 2nd patent?

For example, the "standard" ending of the description is the following one:

The following description is presented to enable any person skilled in the art to make and use the disclosed embodiments, and is provided in the context of a particular application and its requirements. Various modifications to the disclosed embodiments will be readily apparent to those skilled in the art, and the general principles defined herein may be applied to other embodiments and applications without departing from the spirit and scope of the present embodiments. Thus, the system is not limited to the embodiments shown, but is to be accorded the widest scope consistent with the principles and features disclosed herein.

dsplatonov

Posted 2012-09-06T04:36:29.843

Reputation: 562

Answers

20

I found answer on the USPTO web-site:

Patents are published as part of the terms of granting the patent to the inventor. Subject to limited exceptions reflected in 37 CFR 1.71(d) & (e) and 1.84(s) , the text and drawings of a patent are typically not subject to copyright restrictions. The inventors' right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States for a limited time is not compromised by the publication of the description of the invention. In other words, the fact that a patent's description may have been published without copyright restrictions does not give you permission to manufacture or use the invention without permission from the inventor during the active life of the patent.

dsplatonov

Posted 2012-09-06T04:36:29.843

Reputation: 562

As a creative work of original authorship, the text and drawings of a patent or patent application are automatically copyrighted when first reduced to a tangible form. Issuing them as patents does not change that. The patent rules do not necessarily override the copyright laws. They are protecting different rights. – Upnorth – 2017-08-13T18:23:33.257

What if the patent includes a third-party's copyrighted material? This is not a comprehensive answer. – g33kz0r – 2012-09-07T19:02:35.463

2@g33kzor The answer is as comprehensive as it can be. Everything in a published application or patent is assumed to be in the public domain, unless specifically accompanied by a copyright notice (see 37 CFR 1.71(d) and 37 CFR 1.84(s) ). There hasn't been a single case that contests the copyright status of the content of a patent publication, even when that application contains material from a third party. – stharward – 2012-11-07T01:44:36.003

4

"33kz0r" is wrong. The patent grant is a U.S. Government work, and is never copyrighted. However, the application and hence the grant could contain copyrighted images illustrating certain points, but they would have to be clearly marked with copyright information at the time of the application. The drawings required as part of the application are works created for the application, and are transfered to the government upon submittal.

The whole point of a patent is to make the information available to everyone.

Bob

Posted 2012-09-06T04:36:29.843

Reputation: 89

1The policies of the USPTO do not necessarily override the US Copyright Laws, which do (in fact) allow the registration of a claim for copyright in the written description or drawings of a patent application or patent. Many patent rules were drafted prior to the repeal of the author's obligation to provide copyright notice upon publication, prior to 1989. – Upnorth – 2017-08-13T18:19:37.467

2

Copyrighted? Yes. Enforceable? Probably not. In the USA, the copyrighted nature of patents and applications for patents would, like anything else, initially depend upon when and how it was created and published. Prior to 1989 the publication was required to have a "proper copyright notice" or registration, but that is no longer the case. Works of US authors published prior to 1989 without copyright notice or the required registration automatically lost their copyrights to the public domain. Some older patents do, in fact, contain copyright notices, under 37 CFR 1.71(d) or 1.84(s).

Published works of foreign authors are subject to different rules, such as 17 USC 104A, restoring US copyright in certain works where their US publications failed to adhere to all US copyright formalities (notice, renewal).

Some people are confused that "patents" are "government publications" and thus "public domain" for that reason. This is not true of publications for which the authors were not officers or employees of the US government. 17 USC 105.

The US Copyright Office will, in fact, register claims for copyright in such things.

717.3 Patents, Patent Applications, and Non-Patent Literature

The U.S. Copyright Office may register a claim to copyright in the written description for an invention or the drawings or photographs set forth in a patent or a patent application, provided that the work contains a sufficient amount of original authorship. Likewise, the Office may register a claim to copyright in articles, publications, or other non-patent literature that may be submitted with a patent application. However, the copyright in a patent, a patent application, or non-patent literature does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery” that may be disclosed in these works. 17 U.S.C. § 102(b). Compendium of U.S. Copyright Office Practices, Third Edition, 2014, p.408.

Whether a federal court might limit the enforcement of such copyright would be a different question. The applicant for a patent may have granted an implied license for the entire world to duplicate and distribute the work, not to mention that an issued patent may have similar status to a statute that defines the parameters of unlawful conduct, and strong public policies to encourage widespread dissemination. It may also be hard to find a use of a patent text or drawing that is not also "fair use", under the overriding public policy concerns.

Bottom line: it is axiomatic that "a right without a remedy is not a right at all", meaning that if you cannot enforce it, such a right is meaningless.

Upnorth

Posted 2012-09-06T04:36:29.843

Reputation: 341

1

For UK patent and patent application specifications published on or after 1 August 1989, copyright remains with the applicant or proprietor (apparently regardless of who drafted the application). (Earlier UK patent and patent application specifications are Crown copyright.)

You are allowed to copy a UK patent specification to disseminate the information in it. The UK Government can also copy it in order to carry out its duties to publish the specification. You cannot copy a UK patent specification (or a substantial part of it) for any other purpose (subject to any other exceptions to copyright). If you were to copy boilerplate to incorporate it into your own application, you might have to go to court for a ruling as to whether this constituted a substantial part.

Source: http://www.ipo.gov.uk/types/copy/c-other/c-other-faq/c-other-faq-type/c-other-faq-type-patspec.htm

Simon

Posted 2012-09-06T04:36:29.843

Reputation: 11

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One further gloss on the answer previously posted: Although copyright vests upon creation of the work, in order to enforce the copyright of a work (created in the US) through the Federal Courts, the copyright must be registered. See page 7 of http://www.copyright.gov/circs/circ01.pdf .

The passage that you cited is one particular form of a common expression and may technically be enforceable as a copyrighted work (or may not), but I doubt that any court would entertain an attempt to do so regardless.

user96

Posted 2012-09-06T04:36:29.843

Reputation: 1 708

@Gilles Yes very true... and at the same time, also irrelevant in this application. The text and images of a patent are not subject to US Copyright protection. – Robert Cartaino – 2016-01-17T18:27:11.160

The text and images of a patent application are, in fact, subject to US copyright protection as they are not "works of the US government", but rather their respective inventors and patent attorneys. – Upnorth – 2017-08-13T18:21:18.250

3This answer is technically true, but misleading. Since the US joined the Berne convention, copyright applies whether a work is registered or not, and you can seek relief for infringements that occur before registration. However, registration is necessary (for works created in the US) before filing suit for infrigements, and there are definite benefits (easier burden of proof, larger possible damage claims) to early registration. – Gilles – 2012-09-06T18:08:57.930