Monday, March 16, 2009

Copyright for Patent Drawings?

Dear Rich: I am writing a chapter for a technical book and I want to use drawings from patents. Do I have to get copyright clearance? If so, from who? The publisher needs the clearance before they will accept my work. Aren't patent applications and issued patents in the public domain?
I'm so glad you asked. The Dear Rich staff wishes it didn't have to use mitigated speech, but the short answer is that you probably don't need clearance to reproduce drawings from published patents. According to the U.S. Patent Office, subject to some exceptions, "the text and drawings of a patent are typically not subject to copyright restrictions."
What makes the issue confusing is that (1) copyright office regulations (37 CFR 202.10(a)) do not prohibit registration of patent drawings; and (2) patent examiner regulations (MPEP 1.84 (s)) permit copyright notices and copyright claims regarding authorship in patent text or drawings. Which is why we end up returning to mitigated speech and why some attorneys answer your question by saying, "it depends".
The Dear Rich staff has been reproducing patent drawings freely and our publisher has done the same in its books about patents. We believe that even if not specifically exempted from copyright protection, the reproduction of patent drawings likely qualifies as a fair use since the drawings are used for transformative purposes. Finally, if you do seek to obtain permission, you should start with the person claiming patent rights. That person or entity may not always own rights in the drawings but they can likely direct you to the person who has the rights.
Postscript: Stephen Fishman, author of our favorite public domain treatise, brought our attention to the 2003 case, Rozenblat v. Sandia Corp. 69 USPQ2d 1474 (7th Cir 2003). In that case, the Seventh Circuit, acknowledged the copyrightability of an inventor's patent drawings (although ruling against the inventor as to the issue of infringement).