Re: Is patent description copyrighted ?

Isaac wrote:

> The other problem is that the patent attorney's wishes and willingness
> are not the sole factors in determining what the reaonable expectations
> of the authors were.  For example a practitioner may be uncomfortable
> with people copying complete patents, or with other patent applicant's
> verbatim copying of claims verbatim to provoke an interference.  But IMO 
> the practitioner's objections in this regard should be given no weight.

Maybe on a one instance basis, but I would suggest that reasonable
expectations are based on the cumulative beliefs of all those involved,
and I would further suggest that Roger is only one data point there,
and that any number of patent attorneys (in particular, as opposed to
patent agents, who presumably on average have a lesser understanding
of copyright law) would oppose copying of portions of a patent in
order to reduce the cost of patent preparation.

> The action of submitting a patent application and allowing publication or
> allowing the application to issue as a patent defines some of the reasonable
> expectations.   The situation seems analogous to making a usenet posting
> and then attempting to sue ISPs for distributing copies to their paying
> customers. 

A couple of points here.  First, I have argued here that the copyright
license for usenet postings is not blanket, but rather somewhat limited.
Obviously, in posting, one gives permission for others to read and
respond and for archiving.  But what else does it cover?  Arguably,
collecting posts in a book and publishing such for profit may exceed
the reasonable expectations of posters and the copyright licenses.

Secondly, posting is totally voluntary.  The bargain is a bit clearer.
In the case of a patent, you get into public policy issues and the
fact that in order to get patent protection, you are forced to grant
a copyright license.

That gets into a third, related, point.  The basic copyright license
for verbatim copying of a patent is part of the quid pro quod of patent
protection.  It is necessary for accomplishing the purpose of the
Patent Act.  But what we are talking about in this thread concerns
(IMHO) rights that are NOT necessary for accomplishing that purpose.
There is no reason for example that someone preparing a patent
application cannot write his own version of the spec, instead of
copying it from someone else's patent.  All he is really doing is
appropriating the work of the author of the copied patent.  This has
no real affect on accomplishing the purposes of the Patent Act.
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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2003 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
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Bruce E. Hayden                      [EMAIL PROTECTED]
Dillon, Colorado                     [EMAIL PROTECTED]
Phoenix, Arizona                     [EMAIL PROTECTED]