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Are figures in filed patents protected by copyright? If so, who owns the copyright?

  • Do you mean to ask whether patent figures are copyrighted or whether they are in the public domain? – feetwet Jan 18 '16 at 18:06
  • Yes, basically. And, if they are not public domain, who is technically the author? The patent owner or the patent lawyer ... – highsciguy Jan 18 '16 at 19:10
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The USPTO website states:

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.

MPEP 608.01(w) provides the relevant text from 37 CFR 1.71(d) & (e) and 1.84(s). Essentially, if the text or drawings are subject to copyright, they will include a notice to that effect (e.g., "©2018 John Doe"), along with an authorization that states:

The copyright 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 file or records, but otherwise reserves all copyright rights whatsoever.

However, 37 CFR 1.71(d) & (e) and 1.84(s) do not address the impact of failure to provide such a copyright notice, and published works in general are not required to include a copyright notice. Therefore, it is possible that the text and drawings may still be protected under copyright, despite the assertion on the USPTO website. That said, there is likely an argument for fair use of the material in the patent.

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I am not aware of any case specifically addressing this question. However, court have generally found very little protection for legal documents. Lexis and West have won every such case I have ever heard of. While the author or assignee might hold a copyright, I would imagine there would be very little protection for fair use (which would mean almost any use).

  • Thanks for this answer. Independent of whether I can get away with using figures from patents it is important for me to know the owner of the copyright in order to give proper credits. I don't want to call it public domain if it isn't. – highsciguy Jan 19 '16 at 11:49
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    Patent figures are "fair used" all the time. Every Intellectual Property textbook is full of them. Also, keep in mind the purpose of a patent is to disclose the information so that others can use it once the patent expires. – user3344003 Jan 19 '16 at 16:00
  • Also so that others can use the information right now to get inspiration to come up with better inventions. – gnasher729 Jan 20 '16 at 20:37

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