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I wonder if anyone can enlighten me on something I have never understood.

Supposing that I include computer source code in a patent application. Let us suppose that the source code remains unchanged without modification by the patent attorney or the patent office. Who owns the copyright in the source code disclosed in the patent when it is issued? There was a time when a US patent was a work of the USPTO and, I believe, a UK patent was a work of Her Majesty's Stationery office.

More precisely, suppose that my patent is a European patent that is validated in various countries having varying approaches to copyright and then lapses or expires. Now, do I enjoy rights under copyright only in certain countries, in all those countries subscribing to the EPC by virtue of my initial filing or possibly throughout the whole world by virtue of the Berne convention? Or possibly nowhere - it seems that disclosure in a patent is treated differently to disclosure in other works.

Difficult question. Thanks for any replies.

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    In the U.S. in 1988 the US patent rules had an addition saying that a patent application could include a copyright notice but, if so, needed the following disclaimer of those rights "A portion of the disclosure of this patent document contains material which is subject to (copyright) protection. The (copyright) owner has no objection to the facsimile reproduction by anyone of the patent document or the patent disclosure, as it appears in the Patent and Trademark Office patent file or records, but otherwise reserves all (copyright) rights whatsoever." – George White Aug 23 '18 at 21:36
  • @GeorgeWhite This comment sounds like a reasonable answer, at least for the US. – Eric Shain Aug 24 '18 at 18:44
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For the U.S. - In the U.S. in 1988 the US patent rules had an addition saying that a patent application could include a copyright notice but, if so, needed the following disclaimer of those rights "A portion of the disclosure of this patent document contains material which is subject to (copyright) protection. The (copyright) owner has no objection to the facsimile reproduction by anyone of the patent document or the patent disclosure, as it appears in the Patent and Trademark Office patent file or records, but otherwise reserves all (copyright) rights whatsoever."

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Thank you for your answers.

Not really an answer but to conclude on this point, the patent is a European patent which is no longer in force. It appears that someone may be creating a derivative work based on the source code disclosed there. My belief is that publication of the European patent application created Copyright (more particularly, in France, authors rights) and that any derivative work would infringe those rights. Now up to the alleged infringer to demonstrate that copyright doesn't exist. Quite complicated!

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