I was advised by an "inventors circle" to protect my idea by copyright rather than obtaining a patent. First question: Is copyright considered a publication in view of the patenting process? Although I am not aware that copyrighted material needs to be published, it is only marked as such when published. Does a data base exist where content of ‘copyright’ can be searched?

Second question: Can copyright exclude others from manufacturing and selling a product when the date of the copyright precedes the date of a patent? Or said differently can copyright void a patent? Can the existence of copyright preclude the issuance of a patent of same nature?

Thirdly: If I ‘protect’ my idea by copyright, would it not exclude everybody including myself to obtain a patent on the subject matter if the above holds true?

Forth: Then there is the field of writing a copyright protects which to my knowledge is essentially written text. I argued that point but the answer was that patents are also written text and cannot cover or claim text as new when it has earlier been copyrighted. This point is a bit confusing, is patent text considered intellectual property in the sense of copyright? Which dominates, patent or copyright?

I very much would appreciate the legality of copyright to protect an invention and exclude others form making and selling a product that is described by copyright where its date precedes a patenting date, allowing the inventor to licence and sell his product covered by copyright.

Thank you for your answers. Rolf Pfeiffer


2 Answers 2


If you've invented a new mousetrap, you could certainly copyright a document describing it. However, the copyright would not prevent others from making, using, or selling the mousetrap, but just from making exact copies of the description document. In order to exclude others from making, using, or selling the mousetrap, you would need to patent the mousetrap itself.

Please note that if you publish or otherwise make available your writings about the mousetrap more than a year prior to applying for a patent on the mousetrap, the writings (copyrighted or not) can be used against your patent application.

  • 1
    I suspect the "inventors' circle" above is confusing the idea of publishing a work to keep someone else from patenting it (essentially creating prior art) versus actually protecting the invention itself. Publishing an idea can be a way to keep someone from patenting it, but as you said, it is not a way to protect someone from copying the invention itself. Commented Apr 2, 2015 at 18:19

I believe the advisor from the investor circle confuses copyright with trademark.

If your invention contains ornamental elements that were inherent to your invention, then it's possible to file for design patents. An example would be a toothbrush having a specific arrangement of bristles for satisfying a new function. Another example would be an ergonomic handle. Note that a design patent only covers ornamental elements, so if it's possible to achieve the same result with a substantially different aesthetics, than you should consider filing an utility patent instead.

A design patent has some advantages over an utility patent: lower filing fee, no maintenance fee, and faster grant. So design patent filing can be an economic approach for startups. Note a design patent has shorter term and more limited protection. An utility patent can be filed alongside a design patent if you want faster (design) and broader (utility) protection.

A design patent can lead to trademark protection. If your design contain certain ornamental features protected by design patent(s), and you can consistently apply these features to your entire product line, then after a few years you can claim that such features are associated with your brand and cannot be copied.

Trademark and copyright is not covered here and further discussion should be taken to Law Stack Exchange.

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