Tuesday, July 21, 2009

Can You Plagiarize a Patent Specification?

Dear Rich: I have been working through my patent application and noticed in the prior art that there is good descriptive material that describes my base invention less my unique changes. I purchased the Nolo "Patent it Yourself" book a couple of years ago. The author states, "if you see any prior art patent whose specification contains words, descriptions, and/or drawing figures that you can use in your application, feel free to plagiarize!" Is that legal? The short answer, according to Patent It Yourself author David Pressman is that it is legal to copy elements of patent specifications and drawings. However if the specification or drawings include a copyright notice, then the inventor is claiming copyright and the copyrighted material should not be copied. Pressman states a claim of copyright for a patent application is extremely rare. As we have explained previously 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 for the Dear Rich staff is that patent examiner regulations (MPEP 1.84 (s)) permit copyright notices and copyright claims regarding authorship in patent text or drawings. There's also 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 it ruled against the inventor as to the issue of infringement).