Copyright on the content of patents and in the context of patent prosecution
||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (July 2013)|
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
In the United States "the text and drawings of a patent are typically not subject to copyright restrictions.". 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:
- 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”
Copyright law and the use of non-patent literature in patent prosecution
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. 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.
- Copyright and Trademark Issues RE: Materials from USPTO Website
- INCLUSION OF COPYRIGHT OR MASK WORK NOTICE IN PATENTS, MPEP 608.01(v) II)
- Jester, Michael, “Patents and Trademarks Plain & Simple, Career Press 2004, p 65
- Crouch, Dennis (March 2, 2012). "Copyright: Lawfirms Sued for Submitting Prior Art to the USPTO". PatentlyO blog. Retrieved March 3, 2012..
- Bernard J. Knight, Jr., General counsel of the USPTO, “USPTO Position on Fair Use Copies of NPL Made in Patent Examination”, USPTO Memorandum, 19 January 2012.
- United States Patent and Trademark Office (USPTO) web site, Copyright and Trademark Issues RE: Materials from USPTO Website.
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