Commons:Deletion requests/Template:PD-US-patent-no notice

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Template:PD-US-patent-no notice

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It is a myth that illustrations from patents become public domain if they lack copyright notices: "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"[1], "A copyright or mask work notice may appear in the drawing"[2] (my emphasis). Note it says may. It does not say "must". It does not say either that the illustration loses copyright if there is no such copyright notice. It merely says that explicit permission must be given to reproduce the illustration as part of a verbatim copy of the patent if such copyright notices are there. Again, it does not say that the illustration loses copyright if no such explicit permission is there. It does not say either that you may take the illustration out of context and use it as if it were in the public domain. So: If your illustration is copyrighted, you may opt to either add a copyright notice to it, but you must then add an explicit permission to reproduce the illustration as part of a verbatim copy of the patent, OR you may opt to have no copyright notice on it, then you are not required to add the explicit permission. In both cases, you do not lose copyright. But also if you, for example, add a copyright notice but no explicit permission statement, then merely the patent office must reject your patent; it still does not mean that you lose copyright if it lets it slip through accidentally. Stated plainly: There is simply no such thing as a loss of copyright because you published your illustration in a patent, regardless of the circumstances. To give some examples that are pretty clear: Of course, AT-ATs, B-wing starfighters, Link and Mario are not in the public domain because they were published in a patent and the authors forgot to add copyright notices. It would simply be ridiculous and would mean that the person submitting the patent would have done exactly the opposite of what he wanted to do; put the stuff into the public domain instead of give it patent restrictions in addition to copyright restrictions. Of course, law is not supposed to have that effect. So please stop dreaming; there is simply no way or "trick" to circumvent copyright law. The patent office says "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."[3] but it is obviously referring to threshold of originality here, and does not claim that there is anything special about patents. Rather, it even warns you: "CAUTION: There are also instances where a portion of the text or drawings of a patent may be under copyright. You should consult an attorney regarding these potential [...] copyright issues. The USPTO will not assist in determining if a potential [...] copyright issue exists for a particular patent." And this warning is clearly not a warning restricted to the case that the illustrations are supplied with 37 CFR 1.71(d) & (e) and 1.84(s) copyright notices. See also Commons talk:Licensing/U.S. patents. --rtc (talk) 22:47, 25 November 2009 (UTC)[reply]

  • Comment - my understanding from reading these laws is that, in order to claim copyright over portions of the work and thus include a "copyright or mask work notice", the filer of the patent must include an announcement to this effect at the beginning of the patent. This is to guarantee that the whole of a patent may be reproduced as it appears in the USPTO records. The point is this: all patents must be able to be reproduced facsimile by anyone, and if a patent contains copyrighted work without explicit claim of copyright, it would be illegal for even the USPTO to publish the patent in its own databases, and this is absurd. A copyrighted image must be licensed within a patent stating the permission to copy the work within the context of said patent, and if a filer failed to include this license, then the image is not eligible for copyright, or the patent cannot be legally processed. Also, I believe, to a degree, that you misunderstand copyright law; a particular image of a character being licensed or in the public domain is different from that entire character being in the public domain or licensed, as they are separate works. For example, File:Mt-fredart-megatokyo.png uses a Creative Commons license, but does not mean that all the characters in the webcomic Megatokyo are similarly licensed. Scapler (talk) 17:59, 16 December 2009 (UTC)[reply]
    • Actually, the CC license allows for derivative works of that specific art of Fred's (File:Mt-fredart-megatokyo.png). I can extract one of his character in that art and use it in any way I wish, as long as I properly attribute the derivative work to him and his original work per the CC-2.5-SA license (of course, he also retains the moral right to order me to desist if the derivative was "grossly offensive" to the spirit of his work). Neither Piro nor Largo (or any characters in Megatokyo) are in this sample art, so "does not mean that all the characters in the webcomic Megatokyo are similarly licensed" is a non-sequitur. Jappalang (talk) 02:40, 17 December 2009 (UTC)[reply]
Earlier at Commons talk:Licensing/Archive 22#Items in post-June 2006 US patents are not in public domain?: the United States Patent and Trademark Office (USPTO) reworded their copyrights statement from "the fact that a patent's description is in the public domain does not give you permission to manufacture or use the invention without permission from the inventor during the active life of the patent." to "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.".
This change in wording makes a lot of difference in my view because this PD template was created with "patent's description is in the public domain" in mind (ref: Commons talk:Licensing/U.S. patents).
Patents are publications, and usually are "published" before the actual product or design has been released to the public (i.e. first publication is by patent). Hence, for 1923–89, a copyright notice is essential for any artwork that appears in a patent; a patent covers protection for scientific works, not artistic works (copyrights cover these).§ 1.71 (d) went into effect at the start of 1989.[4] The USPTO directs copyright applications to the US Copyright Office.[5] From March 2, 1989 on, no copyright notices on first publication are needed.[6]
Hence, I am leaning to delete this template but not all the material it is covering.
Delete all post-1989 patent materials covered by this template (that includes my colored Yoshi).
For 1923 to March 1, 1989 patent materials, examine if they have copyright notices and if their copyright still subsists (renewals and such).
Keep all pre-1923 patent materials, as they are in public domain by virtue of {{PD-US}} (pre-1923 publication).
I sincerely doubt that Nintendo intended for me to use File:Yoshi.png to create the derivative work on the right, and for anyone to reproduce the image in 2D- (artbooks) or 3D-forms (plush dolls in the pose of the image) and sell it as a "DOSHI!" for their own profits. Note: the trademark template on the Yoshi drawing seems incorrect... trademarks are not drawings but a brand (either word or stylised logo).[7]
I have also sent an email to the US Patent Office to clarify the copyright status of artwork in patents, but as they claimed on their site, they are swamped on their email and will take days to reply (if ever). It will be better if a US editor interested in clarifying the validity of this template contacted them by phone instead. Jappalang (talk) 02:28, 17 December 2009 (UTC)[reply]
Let's hope they reply as quickly as possible for a large government bureaucracy, as it seems clarification is definitely needed. Though I stand by my comments above, this issue may be too large to be discerned from a paragraph of federal law without clarification. A swift reply would put the whole issue to rest, one way or another. Scapler (talk) 07:41, 17 December 2009 (UTC)[reply]
Good news, they replied. Bad news, "all for nuts!"
For technical patent inquiries, you may contact the USPTO Contact Center (UCC) at 1-800-786-9199 or 571-272-1000 and request to be transferred to the Inventors Assistance Center (IAC). IAC representatives are available Monday through Friday (except Federal holidays) from 8:30 a.m. to 5:30 p.m. Eastern Time.
If you have any further questions or if you require additional information, please call the USPTO Contact Center at 1-800-786-9199 or (571) 272-1000 and reference the following Service Request number: 1-157461034. Thank you for your inquiry.
[THREAD ID:1-2LI66Y]
My original message,
Dear sirs/madams,
I would like to know if we must include a copyright or mask notice in patents to assert our copyrights on art designs that are used as components of the patented work (per 608.01(v) II)?
Are Fig 2C (Yoshi) in patent 7338376 and science fiction (B-Wing) drawings in patent D277201 in the public domain then?
US editors should call the USPTO, since they evidently have no resources to cope with email enquiries. You are free to use the above message and thread ID as your references. Jappalang (talk) 03:01, 21 December 2009 (UTC)[reply]
Even if a call is made, they could only answer generally. As to the status of the examples given (Yoshi, etc.), they would not help, as the site also states: "The USPTO will not assist in determining if a potential trademark issue or copyright issue exists for a particular patent" Scapler (talk) 05:15, 22 December 2009 (UTC)[reply]
My questions were not solely on specifics. There is the first question that asks of a requirement for copyright notices in patents. Jappalang (talk) 10:42, 22 December 2009 (UTC)[reply]
  • Comment - Another interesting passage from federal law 608.01: "The inclusion of a copyright or mask work notice in a design or utility patent application, and thereby any patent issuing therefrom, under the conditions set forth above will serve to protect the rights of the author/inventor". This wording suggests that the notice does not simply inform of a copyright already there, but serves to guarantee that copyright despite publication in a patent. It serves the purpose of copyright protection, not of copyright statement. Therefore, without such a notice, there is nothing serving this purpose of protection. Furthermore, the law states that if the notice does not include the exact terms "(t)he (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 files or records" then the notice and patent will be rejected as inappropriate until corrected, showing that the USPTO is concerned with the patent adhering to the laws that all patents must be able to be used and copied by anyone. Since all patents must be copyable by anyone, then patents which contain copyrighted material and do not give express license to still copy them in context would be, in effect, illegal patents. Scapler (talk) 05:41, 22 December 2009 (UTC)[reply]
Unfortunately, that is incorrect. Since 1929, court battles have been fought over whether copyrights prevent the filing of a patent, and in 1974 the Patent Office stopped the practice, allowing patents to have copyrighted elements.
Please read Announcement MLS-500 from the Copyright Office, effective April 24, 1995. Interestingly, the contents reflect my earlier thoughts: patents could be considered "first publications". Basically in the past, there was an election policy of either patent or copyright. This practice was discontinued in 1974 when the court ruled in In re Yardley, 493 F.2d 1389 (C.C.P.A. 1974) that "Congress has not provided that an author inventor must elect between securing a copyright or securing a design patent." The Copyright Office followed Nimmer's treatise that copyright registration cannot be denied to a work of art or drawings of an issued patent. Hence, their amendments to Part 202 of the Copyright Laws that allows one to file copyright protection with the Copyright Office, not the USPTO, for works of art in a patent. This interpretation (of allowing one to copyright patent drawings) is also backed up by patent attorney Robert Platt Bell.[8]
In short, since 1995, works of art in patents are indisputably not public domain material; they can be copyrighted material and require a check with the Copyright Office. In light of registration or notice not required after March 31, 1989, this means all patent drawings after that date are copyrighted material. Jappalang (talk) 10:42, 22 December 2009 (UTC)[reply]
There might be a difference between a design patent and a utility patent. The former grants a patent on the creative layout, while the latter concerns technical matter. The cited In re Yardley seems to cover design patents only. In utility patents, the creative part that justifies copyright is very small, if existant at all. Note that copyright concerns the creative arrangement if there is freedom for human creativeness. Once technical constraints do not allow creative expression, the resultant work is not original, and thus cannot be copyrighted.
Thus, my conclusion is: Patent drawings of design patents after 1989 are copyrighted, those in utility patents not. RainerG (talk) 09:17, 27 December 2009 (UTC)[reply]

Comment - I know it sounds obvious as I type it, but since not all derivative works from images in patents are permissible they are not really in the public domain, regardless of their copyright status. For example, a drawing of say a gearbox in a patent cannot be redone in steel, as you could conceivably do with a public domain drawing. Therefore, the slashed c symbol is misleading, and these images should be classed as non-free images. 82.139.87.72 01:59, 4 January 2010 (UTC)[reply]

 Keep IANAL but the text and drawings of a patent are typically not subject to copyright restrictions. --Cwbm (commons) (talk) 07:25, 20 January 2010 (UTC)

Please read the deletion request! --rtc (talk) 14:00, 25 January 2010 (UTC)[reply]
I think the matter is rather simple: Patentschriften (patent specifications; the document) are considered to be amtliche Werke (governmental works; Copyright status of work by the U.S. government) (in Switzerland they are even specifically mentioned in the copyright law). Thus they are not eligible for copyright. The rest follows from there. --Cwbm (commons) (talk) 14:16, 29 January 2010 (UTC)
Certainly not, because neither has the text been written nor have the drawings under disucssion here been drawn by employees of the US government, but by patent applicants. --rtc (talk) 15:12, 29 January 2010 (UTC)[reply]

Kept those that are PD because of PD-1978-89, PD-US-no notice or PD-US-not renewed. Deleted the others. Kameraad Pjotr 18:37, 21 May 2010 (UTC)[reply]

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