Re: Is patent description copyrighted ?

In article <[EMAIL PROTECTED]> Say not the Struggle nought Availeth <[EMAIL 
PROTECTED]> writes:
>
>  I.   a govt. doc. does not have a copyright.

That's not precisely what 17 U.S.C. 105 says.  The test is not that it
is "a govt. doc." but if it is a "work of the United States Government."

     Copyright protection under this title is not available for any work
     of the United States Government, but the United States Government
     is not precluded from receiving and holding copyrights transferred
     to it by assignment, bequest, or otherwise.

Section 101 further clarifies this provision:
     A "work of the United States Government" is a work prepared by an
     officer or employee of the United States Government as part of that
     person's official duties.

So those portions of a patent that are prepared by the PTO are clearly
not protected by United States copyright, but that still leaves the
question of copyright protection for the specification, since it was
not prepared by the applicant and not a government employee.


I doubt that it is possible to resolve the question of the copyright
status of a patent specification, since Congress doesn't appear to
have provided the answer in either the patent or copyright statutes.


At the time the current patent act was passed (1952), federal copyright
protection required both proper notice at the time of publication and
registration with the Copyright Office.  Since neither were done when
the patent was published, any possible federal copyright protection
was lost.  There was no need to for the patent act to discuss the
copyright status of a patent specification.

When the Copyright Act of 1976 became effective, that changed.  Now
federal copyright protection was automatic at the time the work was
first fixed.  Clearly, a patent specification gets federal copyright
protection at the time it is drafted.  And there is no statutory
provision that strips it of that protection.

The likely reason that Congress did not address whether a patent
application loses its copyright when the patent is granted is that
nobody at the time of the Copyright Act of 1978 noticed that there
would be a problem.  And the likely reason that there hasn't been
any fix since then is that it hasn't been a real problem, just one
to produce interesting speculation.


So, I doubt that any amount on statutory analysis will give the
answer, and until it is a real problem Congress won't do anything
about it.