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I'm considering making a game that uses patent illustrations (from Context-Free Patent Art) as graphics. I've read the answers to Are text and images in the patent copyrighted?, which suggests that if a graphic is not explicitly copyrighted, it can be freely reproduced. However, I have some concerns:

  • When looking at the original patent, is the lack of a copyright notice in the patent sufficient to make sure the images in it are not copyrighted? This would seem to violate the Berne convention.
  • The game would be accessible across the world, not just in the US. How does this complicate things? Is it possible/likely that a challenge could be brought against the game in a non-US court?
  • I assume that I have to check that the images aren't trademarked.

What I'm looking for is a test I can apply to patent images to see if they are reasonably safe for me to use in a game. The game design doesn't rely on any specific images being available, as long as some are safe to use.

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In Rozenblat v. Sandia Corp. 69 USPQ2d 1474 (7th Cir 2003), the Seventh Circuit held that an inventor's patent drawings may be protected by copyright. This case is frequently cited when addressing this question and usually has been interpreted to mean only that it is possible for a patent drawing to be protected by copyright.

The U.S. Patent and Trademark Office website says that "the text and drawings of a patent are typically not subject to copyright restrictions," subject to limitations in 37 CFR 1.71(d) & (e) and 1.84(s).

http://www.uspto.gov/news/media/ccpubguide.jsp

However, the PTO goes on to say "trademarks may be embedded in patents as part of the drawing, particularly for design patents...[t]here are also instances where a portion of the text or drawings of a patent may be under copyright."

Based on these statements, you could do the following: (1) From the front page of the patent, note the inventor and assignee; (2) Search these names to see if you find copyright registrations here: http://www.copyright.gov/records/
(3) Search these names to see if you find corresponding trademarks here: http://tess2.uspto.gov

Some form of attribution is probably a good idea, as you suggest in citing the Berne Convention. One possibility is including the patent number somewhere in the reproduction of the drawings. The safest approach would be to consult an attorney.

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