Are Patents Copyrighted?

 

The quick answer to the question of whether a patent is subject to copyright is no. It is not.

This means a patent can be freely copied and used by others.

There can be some exceptions, including a trademark issue, so let us take a closer look at the law.


The Patent Office Says No Copyright

The United States Patent and Trademark Office states:

"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....

[T]he 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. See MPEP section 600 - 608.01(v) regarding the right to include a copyright or mask work notice in patents."

Source: https://www.uspto.gov/terms-use-uspto-websites

Copyright can be claimed to part of a patent application, but only if stated on the application as provided by federal law. Title 37 Code of Federal Regulations, Sections 1.71(d) and 1.71(e) state:

"(d) A copyright or mask work notice may be placed in a design or utility patent application adjacent to copyright and mask work material contained therein. The notice may appear at any appropriate portion of the patent application disclosure. For notices in drawings, see section 1.84(s) . The content of the notice must be limited to only those elements provided for by law. For example, "Copyright 1983 John Doe"(17 U.S.C. 401) and "*M* John Doe" (17 U.S.C. 909) would be properly limited and, under current statutes, legally sufficient notices of copyright and mask work, respectively. Inclusion of a copyright or mask work notice will be permitted only if the authorization language set forth in paragraph (e) of this section is included at the beginning (preferably as the first paragraph) of the specification."

"(e) The authorization shall read as follows:

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."

For patent drawings a similar copyright notice is required to be included on the drawing per Title 37 Code of Federal Regulations, Section 1.84(s):

"(s) Copyright or Mask Work Notice. A copyright or mask work notice may appear in the drawing, but must be placed within the sight of the drawing immediately below the figure representing the copyright or mask work material and be limited to letters having a print size of .32 cm. to .64 cm. (1/8 to 1/4 inches) high. The content of the notice must be limited to only those elements provided for by law. For example, "Copyright 1983 John Doe" (17 U.S.C. 401) and "*M* John Doe" (17 U.S.C. 909) would be properly limited and, under current statutes, legally sufficient notices of copyright and mask work, respectively. Inclusion of a copyright or mask work notice will be permitted only if the authorization language set forth in section 1.71(e) is included at the beginning (preferably as the first paragraph) of the specification. "

This type of language can be found in section 608.01(w) of the Manual of Patent Examining Procedure (MPEP).


A Deeper Analysis

So that does mean a patent application is not subject to copyright?

No. Not so fast.

Assume you create a description for a death star, including a diagram for a powerful sphere shaped-weapon which can destroy a planet.

Per basic copyright law that text and diagram are automatically protected by copyright.

Even if you wrote the description and created the picture with the intent of submitting a patent application, as soon as you create them they are copyrighted.

Do they lose that copyright protection if you then submit them as part of a patent application?

The answer is yes.

The reward for being granted a patent is a 20-year monopoly on the use of a specific process.

But to obtain that monopoly a patent applicant has to give something up. Necessarily, that is a full description of the patent so that if the patent is granted the public knows they cannot use it for 20 years.

There is more.

After the 20 year monopoly expires the public has the right to use the patent.

Congress has stated that a patent application requires detail, specificity, and a diagram so that others can "make and use" of the patent. (Title 35, United States Code, Section 112 and 113.)

The Supreme Court has noted the same: Universal Oil Products Co. v. Globe Oil & Refining Co. (1944) 322 US 471. Many courts have noted patent disclosures provide worthwhile public knowledge about the invention.

In other words, after the patent monopoly expires the invention is given to the public. That is the quid pro quo for seeking a patent.

An inventor does not have to seek a patent and can keep their invention a trade secret.

However, if copyright applied to a patent application then the public arguably could not make use of the invention, or make derivative works.

Additionally, given the terms of use for the US PTO website, an online patent submission would expressly waive any copyright claim to the patent application.

For non-online patent submissions there is also likely an copyright waiver, or at least a non-exclusive license for the public to use the application, based on 225+ years of practice where patent applications have not been treated as being copyrighted works.

When a patent application is made the applicant knows they are submitting information which will be publicly distributed. (35 USC Section 222.) Congress has set forth several exceptions to publication - none of which involve copyright.

If a patent applicant wants to claim copyright to their application the previously noted regulations allow them to do so. Failing to include a copyright notice, per regulation, is a grant allowing anyone to reproduct the application.

There is also a question of whether copyright could ever apply to a patent. Copyright does not apply to facts, or procedures, processes, systems or discoveries. (Title 17 US Code Section 102(b).)

That is why copyright does not apply to recipes.

Similarly, a patent consists of facts, methods, systems, etc. Any extraneous material which could be the subject of a copyright is not allowed in a patent application.

Finally, there may be a distinction between a patent application and a patent award.

The patent award will include a patent number on the drawing submitted by the applicant.

The patent award is a document created by the US Government and federally created documents are not subject to copyright and are in the public domain. (17 USC 105) However, federal publishing of copyrighted material created by others will not cause the material to lose its copyright. Whether a patent award containing a drawing submitted by an applicant is a public domain federal work or not has not been addressed by the courts.


A Weird Twist

Finally, an interesting twist ...

Many patent applications are actually created by patent attorneys. No surprise there. That means any copyright actually belongs to the attorney and not their client. Imagine the uproar if attorneys tried to assert their copyright and profit from their legal filings. They could prevent a client from making a derivative use of what is in the patent application.



Related: Are Trademarks Copyrighted?




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