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Just read "this-is-a-direct-copy-of-a-previous-patent-we-own", in conjunction with "Are text and images in the patent copyrighted?", and "Can I copy texts from other applications into my application?".

I'm curious if anyone has attempted to force an application or patent to be: un-published / revoked / re-examined on the grounds the patent application itself infringes on someone else's copyrighted material.

Can you revoke a patent simply by issuing a DMCA takedown notice against a patent hosted on the USPTO site (if the details can't be published, there's no way to avoid infringement, so the patent would obviously become invalid).

1

My gut tells me that in most cases you can't get the government to take down an official filing, but let's imagine an even more egregious example: Say I file for a patent that provides some functionality similar to the holodeck on Star Trek (perhaps an occulus-rift type of tech), and I take all of the scripts from the various Star Trek series and movies and include them within the text of the patent application. Doing this would probably be so obnoxious that I doubt I'd ever get that patent, but the question is whether Paramount has remedies in this case.

There has been litigation over the use of copyrighted materials in filings with the USPTO as well as in copying materials for use in preparing filings. You might find an answer there. http://patentlyo.com/patent/2012/04/copyright-lawsuit-against-patent-firms-continue-firms-claim-fair-use-and-copyright-misuse.html

  • Thanks, only leaves the question of what happens if copied material is integral / being "exploited" by an application. In the example above the ownership of the diagrams in the second application appears to be disputed. Oh the fair use catch all is a little worrying, as an eBook formatting innovation could in theory include before and after copies of the protected scripts as an example, and essentially curtsey of the USPTO be shifted into the public domain. – arober11 Mar 20 '15 at 23:41
  • There is not going to be a shift into the public domain regardless of whether somebody has copied it under fair use. One thing to be aware of with copyright is that no longer is the (c) symbol the important thing (copyright is automatic and no longer requires use of the symbol) -- the important thing is whether the copyright has been registered with the US Copyright Office. For a registered work, you can get statutory damages (and they're quite large). For an unregistered work, you have to prove actual damages, which frequently are far less than statutory damages would have been. – Gary S Mar 21 '15 at 1:16
  • The contents of a Patent Application are in the public domain, one of the criteria for obtaining a patent. If an Application carries in its body a copy of a protected work, that work will forever be freely available within the body of application. As the USPTO counsel is of the opinion that this is fair use for the applicant to include and the USPTO publish and distribute the embedded protected work it's effectively a way to put another's work into the public domain. – arober11 Mar 21 '15 at 10:05
  • I think we're talking about public domain in a different way. If I include all of Stephen King's "It" as an appendix to a patent application, that doesn't mean that "It" has entered the public domain so that somebody else can make a movie based on "It" or republish "It" as a book without paying royalties. The contents of a published patent application are available to the public (some applications, like abandoned provisionals, never get published), but that doesn't void the copyright in materials that the applicant didn't own the copyright to in the first place. – Gary S Mar 22 '15 at 17:28
  • Semantics, if the full Application is freely available (hosted by the USPTO), and may be copied / reproduced, under fair use, this essentially gifts any appended work to the public domain, while in context. Obviously if you created a derivative work, of the Application, that only reproduced the third party material, you're a naughty boy. Hence my original DMCA take down question. – arober11 Mar 22 '15 at 18:51

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