Copyright on the content of patents and in the context of patent prosecution

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The copyright status of the content of patent applications and patents may vary from one legislation to another. Whether scientific literature can be freely copied for the purpose of patent prosecution is also a matter for discussion.

Copyright status of the content of patent applications and patents[edit]

United States[edit]

In the United States "the text and drawings of a patent are typically not subject to copyright restrictions.".[1] A patent applicant may obtain copyright protection or mask work protection for the content of their patent application if they include the following notice in their application:[2]

A portion of the disclosure of this patent document contains material which is subject to (copyright or mask work) protection. The (copyright or mask work) 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 or mask work) rights whatsoever.

If this copyright notice is not included, then “anyone is free to copy and disseminate the drawings of an issued patent for any purpose”[3]

Copyright law and the use of non-patent literature in patent prosecution[edit]

United States[edit]

A related, but different, issue is whether scientific literature, sometimes referred to as "non-patent literature" (NPL), can be freely copied for submission to the USPTO and more generally in the context of patent prosecution.[4] The official position of the USPTO is that providing copies of non-patent literature to the USPTO for the purposes of patent prosecution is protected fair use provided that the applicant obtained the copies properly.[5]

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