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Sometimes, during a patent research, I found patents which comprise one or more similar images and/or text paragraphs. Are text and images in the patent copyrighted? Does any 3rd party, other than inventor and patent attorney, who filed 1st application, is eligible to copy-paste some paragraphs from the 1st patent to the 2nd patent?

For example, the "standard" ending of the description is the following one:

The following description is presented to enable any person skilled in the art to make and use the disclosed embodiments, and is provided in the context of a particular application and its requirements. Various modifications to the disclosed embodiments will be readily apparent to those skilled in the art, and the general principles defined herein may be applied to other embodiments and applications without departing from the spirit and scope of the present embodiments. Thus, the system is not limited to the embodiments shown, but is to be accorded the widest scope consistent with the principles and features disclosed herein.

  • Not sure if it was your intention, but from my understanding you'd be asking if contents of a patent are copyrighted in the sense that you could prevent others from using images and text themselves for other purposes. I.e. imagine I now want to print a pretty drawing from your patent in the cover of my technical book. Is the image public domain or do I need your permission?<- That is how I understood the question. – Mefitico Feb 1 at 17:41
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I found answer on the USPTO web-site:

Patents are published as part of the terms of granting the patent to the inventor. Subject to limited exceptions reflected in 37 CFR 1.71(d) & (e) and 1.84(s) , the text and drawings of a patent are typically not subject to copyright restrictions. The inventors' right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States for a limited time is not compromised by the publication of the description of the invention. In other words, the fact that a patent's description may have been published without copyright restrictions does not give you permission to manufacture or use the invention without permission from the inventor during the active life of the patent.

  • What if the patent includes a third-party's copyrighted material? This is not a comprehensive answer. – g33kz0r Sep 7 '12 at 19:02
  • 2
    @g33kzor The answer is as comprehensive as it can be. Everything in a published application or patent is assumed to be in the public domain, unless specifically accompanied by a copyright notice (see 37 CFR 1.71(d) and 37 CFR 1.84(s) ). There hasn't been a single case that contests the copyright status of the content of a patent publication, even when that application contains material from a third party. – stharward Nov 7 '12 at 1:44
  • As a creative work of original authorship, the text and drawings of a patent or patent application are automatically copyrighted when first reduced to a tangible form. Issuing them as patents does not change that. The patent rules do not necessarily override the copyright laws. They are protecting different rights. – Upnorth Aug 13 '17 at 18:23
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"33kz0r" is wrong. The patent grant is a U.S. Government work, and is never copyrighted. However, the application and hence the grant could contain copyrighted images illustrating certain points, but they would have to be clearly marked with copyright information at the time of the application. The drawings required as part of the application are works created for the application, and are transfered to the government upon submittal.

The whole point of a patent is to make the information available to everyone.

  • 1
    The policies of the USPTO do not necessarily override the US Copyright Laws, which do (in fact) allow the registration of a claim for copyright in the written description or drawings of a patent application or patent. Many patent rules were drafted prior to the repeal of the author's obligation to provide copyright notice upon publication, prior to 1989. – Upnorth Aug 13 '17 at 18:19
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Copyrighted? Yes. Enforceable? Probably not. In the USA, the copyrighted nature of patents and applications for patents would, like anything else, initially depend upon when and how it was created and published. Prior to 1989 the publication was required to have a "proper copyright notice" or registration, but that is no longer the case. Works of US authors published prior to 1989 without copyright notice or the required registration automatically lost their copyrights to the public domain. Some older patents do, in fact, contain copyright notices, under 37 CFR 1.71(d) or 1.84(s).

Published works of foreign authors are subject to different rules, such as 17 USC 104A, restoring US copyright in certain works where their US publications failed to adhere to all US copyright formalities (notice, renewal).

Some people are confused that "patents" are "government publications" and thus "public domain" for that reason. This is not true of publications for which the authors were not officers or employees of the US government. 17 USC 105.

The US Copyright Office will, in fact, register claims for copyright in such things.

717.3 Patents, Patent Applications, and Non-Patent Literature

The U.S. Copyright Office may register a claim to copyright in the written description for an invention or the drawings or photographs set forth in a patent or a patent application, provided that the work contains a sufficient amount of original authorship. Likewise, the Office may register a claim to copyright in articles, publications, or other non-patent literature that may be submitted with a patent application. However, the copyright in a patent, a patent application, or non-patent literature does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery” that may be disclosed in these works. 17 U.S.C. § 102(b). Compendium of U.S. Copyright Office Practices, Third Edition, 2014, p.408.

Whether a federal court might limit the enforcement of such copyright would be a different question. The applicant for a patent may have granted an implied license for the entire world to duplicate and distribute the work, not to mention that an issued patent may have similar status to a statute that defines the parameters of unlawful conduct, and strong public policies to encourage widespread dissemination. It may also be hard to find a use of a patent text or drawing that is not also "fair use", under the overriding public policy concerns.

Bottom line: it is axiomatic that "a right without a remedy is not a right at all", meaning that if you cannot enforce it, such a right is meaningless.

2

With apologies to the OP's narrow original question, given that questions involving distinct legal issues and non-US jurisdictions are being closed as duplicates, there are some points that I think need to be mentioned here.

To summarize: given the lack of clear legal authority on copyright claims over patent materials in most countries, any blanket assertions that such claims are or aren't valid should be treated skeptically. So while the theoretical issues here are fun to talk about, anyone who needs to know their potential level of risk (as a defendant) or viability (as a plaintiff) should contact their friendly neighborhood IP attorney.

I. This is a pretty hypothetical question

The question of whether there are enforceable copyrights in patent application materials is almost entirely theoretical. Copyright cases based on patent specifications are vanishingly rare, and in the US (and many other countries), binding legal authority on them appears to be nonexistent.

(That said, speaking of things that should not be taken seriously: AFAIK nobody has really attempted to conduct a comprehensive search for this kind of patent-copyright litigation, and even in the US where records are comparatively accessible, trial-court cases that don't reach a final judgment can be very hard to find. So my assertion that they are "vanishingly rare" should also be taken with a healthy dose of salt. Some cases may be quietly settled, as happened for example in at least one of the rash of suits over "prior art" documents that were brought in the US in the early 2010s. The most that can really be said is that no such case appears to have ever proceeded as far as an appellate ruling.)

Indeed, even statements by government bodies in this area often have to be taken with skepticism. The USPTO, for example, does not have rulemaking authority over copyright law. Thus, the MPEP/CFR sections sometimes cited with regard to copyright assertions -- even supposing that they are not, as they appear to be, based on pre-1990 US copyright law that required copyright to be expressly asserted -- would have little if any bearing on a copyright case in the US federal courts.

II. There are a lot of different copyrights that could be involved

The potential copyrights in a patent application may vary greatly. For example, the questions of the ownership and allowable scope of use would be very different with respect to:

1) specific boilerplate paragraphs used by a law firm (as in the original question here),
2) a specification cooperatively drafted by a patent agent and group of inventors for the specific purpose of submission and publication to a patent office,
3) drawings by a third-party professional illustrator that are used in a patent application with the illustrator's consent, and
4) third-party text or drawings incorporated in a patent application or grant without the copyright owner's consent.

Looking at #1, notably, at least one knowledgeable US observer has concluded, based on the unexpected difficulties that defendant law firms faced in defeating copyright claims based on prior art documents, "[t]he use of copyrighted materials to fulfill legal obligations in governmental proceedings is most likely fair use, but it’s not the 'slam dunk' defense that many once thought it was." Whether that would extend to something like one firm copying another firm's boilerplate is unclear.

Looking at the example of drawings, the US doctrine of "fair use" and the apparent UK exception for "disseminating information" would excuse most patent-scraping operations even where the patents include copyrighted illustrations. But even under those US and UK doctrines, it's far from clear that a company would be free to (for example) reuse suitable drawings from a competitor's patent application in its own proprietary materials, particularly if the company's purpose were merely to save on illustration costs rather than to provide any information about the competitor's application. And many countries do not provide the relatively generous copyright exceptions that the US and UK do.

III. There is a lot of variation between countries

The legal principles that would apply to any such claim vary dramatically from one country to another. (Wikipedia provides a very limited survey.) Given the lack of actual litigation in this area, it's impossible to know how significant those variations are.

For example, it seems that a copyright claim based on an asserted copyright in an EPO patent application might fare very differently in different EPO member states, e.g.,

  • Switzerland (where the Copyright Act expressly excludes "patent specifications and published patent applications"),
  • the UK (where the law apparently provides a general "disseminating information" exception), and
  • Germany (where the DPMA construes the Copyright Act (secs. 5, 62) to exempt republications of patent documents, but only as long as the copier follows the Copyright Act's stringent requirements, e.g. that the document not be modified).
1

For UK patent and patent application specifications published on or after 1 August 1989, copyright remains with the applicant or proprietor (apparently regardless of who drafted the application). (Earlier UK patent and patent application specifications are Crown copyright.)

You are allowed to copy a UK patent specification to disseminate the information in it. The UK Government can also copy it in order to carry out its duties to publish the specification. You cannot copy a UK patent specification (or a substantial part of it) for any other purpose (subject to any other exceptions to copyright). If you were to copy boilerplate to incorporate it into your own application, you might have to go to court for a ruling as to whether this constituted a substantial part.

Source: http://www.ipo.gov.uk/types/copy/c-other/c-other-faq/c-other-faq-type/c-other-faq-type-patspec.htm

0

One further gloss on the answer previously posted: Although copyright vests upon creation of the work, in order to enforce the copyright of a work (created in the US) through the Federal Courts, the copyright must be registered. See page 7 of http://www.copyright.gov/circs/circ01.pdf .

The passage that you cited is one particular form of a common expression and may technically be enforceable as a copyrighted work (or may not), but I doubt that any court would entertain an attempt to do so regardless.

  • 3
    This answer is technically true, but misleading. Since the US joined the Berne convention, copyright applies whether a work is registered or not, and you can seek relief for infringements that occur before registration. However, registration is necessary (for works created in the US) before filing suit for infrigements, and there are definite benefits (easier burden of proof, larger possible damage claims) to early registration. – Gilles Sep 6 '12 at 18:08
  • @Gilles Yes very true... and at the same time, also irrelevant in this application. The text and images of a patent are not subject to US Copyright protection. – Robert Cartaino Jan 17 '16 at 18:27
  • The text and images of a patent application are, in fact, subject to US copyright protection as they are not "works of the US government", but rather their respective inventors and patent attorneys. – Upnorth Aug 13 '17 at 18:21

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