4

Elsewhere on this site I see this quote...

According to U.S. law, a patent cannot be obtained if an invention was previously known or used by other people in the U.S., or was already patented or published anywhere in the world. Furthermore, publicly using or selling an invention more than 1 year prior to filing a patent application completely bars you from ever winning a patent on that invention.

All day long I find examples on the Internet when well-meaning people use the GPL or any other copyright mechanism to make a pretend patent and then try to say "for non-commercial use only" or other some such directive.

Here is one example from an antenna website:

COMMERICALLY AVAILABLE FROM INNOVANTENNAS. NO OTHER COMPANY HAS COMMERCIAL USE RIGHTS OF ANY KIND

Short of obtaining an actual patent on the design they are "expressing" via their build diagram and/or detailing in their antenna model files, are they simply placing their design into the public domain via publication?

My more general questions are:

  • Can a copyright be used to protect someone's design?

And if so,

  • If anyone tries to use a copyright to protect their design and then publishes it on their web site, have they just lost all rights to their design?
  • Have they lost all control over who can use their design?
6

I think you're misunderstanding what a copyright does. No, a copyright is no substitution for a patent, in any way, shape, or form.

I posted an answer a few months ago on Startups Stack Exchange which roughly describes the difference between these two mechanisms of intellectual property protection, "Can you copyright a program you have made from scratch?" Clearly, that question is asking about code, rather than antennas, but the same theories apply nicely here.

What that disclaimer ("COMMERCIALLY AVAILABLE...") is referring to is the plans. Looking at their designs as an amateur radio operator, I'm not seeing anything that looks to meet the bar for patentability, but I'm especially not seeing any patent numbers, or even "patent pending" footnotes.

Copyrights are not on-topic for Ask Patents, so I won't say too much here (although I will urge you to check out the answer I linked to before), but essentially, the protection this website is getting is on the graphics, text, and related artwork they've used. By law, copyrights aren't on anything useful--they're just for artwork (text, images, songs, movies, dances, and such). If I opened my own antenna store, basically, I wouldn't be allowed to copy and paste these images to sell this kind of antenna.

What they are not protecting, is the antenna itself. In this hypothetical store, I would be allowed to sell the type of antenna, indeed with even the same measurements.

It's true that by publishing these plans, they are barring someone else from getting a patent on the same antenna, although in this particular case, as I said, it's unlikely that anyone would be able to get one anyway.

Speaking to your general questions, they really depend on how you define "design."

I'm seeing two possible definitions, to which the answers would vary:

  1. The design of the plans.
  2. The design of the antenna, in this case.

In the first case, nope! The copyright is still theirs, so they can stop someone else, as I've described, from using the verbatim scripts on their own website.

In the second case, it depends! The quote you cited does refer to the United States grace-period of one year, which is relevant here. It is, however, true that once you publish your work publicly, you stand the risk of someone else getting some valuable market time before your patent goes through (which can take a little while). You'll be able to stop them once your patent does come through, but sometimes that's too late. Marking your invention "patent pending" is really the best form of protection in that early stage.

So ultimately, no. A copyright is not any form of protection towards the underlying utility of a product.

  • My comments were really to ask if "they" misunderstand copyrights; I'm reasonably well versed in the use of copyrights (active photographer with regular submissions to the US Copyright Office). I guess I did have a small doubt because the antenna company so heartily boasts like they think copyrights do provide them control. By the way, they do post "Patent Pending" statements elsewhere on their site, circa 2009, even though no patent application has turned up in the US or EU. That's not cool right? – JSH Feb 4 '15 at 22:38
  • Their phrase "NO OTHER COMPANY HAS COMMERCIAL USE RIGHTS OF ANY KIND" combined with some of their commentary in forums and such imply they think they can prevent others from manufacturing their design without a patent. I've found it surprisingly difficult to find someone who will say they likely spilled their IP into the public domain. The reason this is relevant to Ask Patents is the fact way way too many people try to use a copyright as a patent and simple give their design away. My original title to this post "...Folly of mankind" reveals my frustration with this apparent misconception. – JSH Feb 4 '15 at 23:00
0

To start with one needs to understand the basic difference between copyrights and patents. Copyright is an intellectual property right that grants exclusivity to authors for “original works” in literary, dramatic, musical, artistic, graphic designs, sculpture, photographs, movies, sound recordings and similar domains (the work can be both in published and unpublished form). A copyright protects the “expression” of the author rather than the actual content/subject matter of the work. In other words, a catalogue/website description of a particular seller selling an object/product can be a copyrighted work; however it would only prevent others (say other sellers) from exactly copying the description, but cannot prevent them from writing their own description or the use of object/product.

On the other hand a patent grants exclusive rights to an inventor/assignee for a limited period of time in exchange for detailed public revealing of his/her invention. The invention should be novelty, non-obviousness (at the time of invention) and should have an industrial applicability. This exclusivity gives the inventor/assignee the right to prevent others, from commercially making, using, selling, importing, or distributing the product without inventor/assignee permission. Patents can be further classified on the basis of utility and design.

A design patent gives protection to any new, original and ornamental design of a manufacturable article/object (improves only the aesthetic appearance of the article/object). And if invention is new/novel or the design/ any other modification to the known prior art that improves the function of the object, then one can be granted a utility patent protection.

Although copyrights and patents offer two different type of exclusivities, but both can overlap to some extent (Design Patent/Copyright Overlap). For instance, a code for software can be copyright protected as a form of expression however it can become a subject matter for patent eligibility only if it offers certain functional aspects (e.g implemented in a device to produce certain functional outcomes) and must be novel and non-obvious. (for detailed study: The Problem With Intellectual Property Rights: Subject Matter Expansion can be a good reference).

Disclaimer: For a better legal opinion, please consult a lawyer.

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