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I've noticed that patent applications go through pains to describe widely understood concepts such as what is a computer or a mobile device. For instance this patent by Apple US 20150042819 A1 devotes 8 paragraphs to just explain what a smartphone is.

My patent also requires a mobile device for an embodiment, so can I just lift the description out of another patent maybe with small changes do adjust for the required hardware capability or do I have to write my own risking that I'm missing some finer points of how this should be done?

BTW, I'm aware of this question, but I'm not exactly meaning boilerplate text.

  • To be honest, I don't see a lot of difference between your question and the one you reference. In your view, why do you think the answer would be different between your situation and the boilerplate text in that question? – Maca Jul 25 '16 at 8:49
  • The question I referred to focuses on generic "lawyerspeak" much like the incantations some people put at the end of their emails about "intended recipients" and so on. I'm more interested in paragraphs that are genuinely part of the description, but are there to provide context and fulfil the requirement to "empower one of ordinary skill in the field to make and use the full scope of that inventive concept without experimentation" rather than to introduce anything novel. – Maciej Trybiło Jul 25 '16 at 12:56
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Can I copy parts of applications that are not specific to the invention?

Probably, but maybe not.

The key issue comes down to whether your copying would infringe the original author's copyright. Whether the portion you copy relates to the technical implementation or relates more to the scope of the patent (what you call "lawyerspeak") is largely irrelevant to this.

Is there copyright in the text of a patent?

Most likely. Assuming the text is original, there is no reason it should not get copyright protection just like any other literary work.

Would your copying infringe the copyright?

Probably not, though there is no clear law on this. One theory is that any copyright on the content of patents is so limited in view of the purpose of patents that any enforcement would be practically impossible. However, it seems no one has really tested this in the courts.

What are the alternatives?

Even if you would be infringing by copying, the practical risk seems vanishingly small in my opinion. Who would bother suing over copied patent text? But nevertheless you may still want to avoid such a risk.

In the US, you can simply incorporate the content of a previous patent by reference. This has the effect of formally including all the matter disclosed there into your application without having to expressly set out the wording. Since you're not copying the wording, there is seemingly no risk of infringement.

Alternatively, it is well established that there is no copyright in the ideas that are expressed. If you copied the ideas, but used your own original words, there would be no issue.

Sources

Most of the analysis was taken from an Alderucci paper. Wikipedia has a pretty decent discussion too.

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