Do patent documents enjoy copyright?




Release time:2016-07-20

In recent years, there have been many disputes caused by the copyright of patent documents. There is a view that patent documents mainly reflect practical technical ideas, which is far from the copyright law of "only protecting expression but not protecting ideas. However, careful analysis is not difficult to find that for some documents in the patent, or some parts of the patent document, there is still room for copyright.

  Whether it is protected by copyright is open to question

Is there any copyright in patent documents? For this issue, there is a very popular view that patents protect innovation, and once a patent is authorized to be made public, it is an administrative document of the government and cannot be protected by copyright law. According to the provisions of Article 5 of the Copyright Law, resolutions, decisions, orders and other documents of a legislative, administrative, or judicial nature of state organs are objects that are not protected by copyright.

The author believes that the above views are debatable for the following reasons:

First, the patent document is only an attachment to the patent department's authorization document, not the authorization document itself. For example, when a trademark authorization announcement is made, the authorization document will also record the trademark pattern. However, if the trademark pattern itself constitutes a work, the trademark authorization announcement, although it is an official document of a government administrative nature, will also cause the pattern work to lose its status as a work immediately. At the same time, the act of copyright registration itself is a quasi-administrative act, but the part of the work registration will not lose its copyright status because of the implementation of the registration act and the copyright registration certificate.

Second, to determine whether the content of the patent document constitutes a work, the main consideration is whether the relevant expression of the patent document constitutes a "unique expression". The so-called "unique expression", also known as "limited expression", refers to only a few limited expressions of a certain idea. The "unique expression rule" means that if an intellectual creation is unique in the form of expression, it will be excluded from the scope of copyright protection regardless of whether it is original or not. In other words, it is not necessary to judge the originality of a work whether an intellectual achievement under such conditions constitutes a work. The reason is that in the case of "limited expression", the author's thought expression space is extremely narrow, and others can only adopt the same way as the author if they want to express the same thought. In this way, thought is expression. If the right to express this kind of thought is given to a few authors, it will not only violate the basic principle of "only protecting expression but not protecting thought" in the copyright law, but also cause unfair monopoly and give the public. Cause great adverse effects. On the other hand, the protection period of patent right is far shorter than that of copyright. Therefore, it is necessary to carefully identify the copyright of patent documents to prevent the obligee from substantially monopolizing the relevant technology through copyright after the expiration of the protection period of patent right. Conversely, if there are many forms of expression of an idea in a patent document, and only one of them is used in the patent document, then identifying it as a work under the condition of conforming to the composition of the work will not unreasonably prevent the technical personnel in the field. Subsequent innovation and reasonable use. Because others can use another way to express the same technical ideas.

Claims are extremely difficult to constitute a work

Claims are the application documents that must be submitted by the applicant for a patent for invention and the applicant for a patent for utility model. It is the content of invention or utility model patent protection, has direct legal effect, is the core of patent application, but also an important document to determine the scope of patent protection. The following is a typical claim:

"1. A folding type pumping toilet, comprising a sitting frame (l) a sitting basin frame (2) a basin body (3) a water seal (4) and a sewage connection (5), characterized by a folding type supporting mechanism composed of a movable connecting rod (6) and a supporting member (7), and the movable connecting rod is respectively connected with the two sides of the sitting frame and the sitting basin frame, the supporting member is arranged at the rear side of the seat basin, and the basin body is a collapsible soft basin body.

2. The folding pumping toilet according to claim 1, characterized in that the supporting member (7) is composed of a pin fixing member."

It is not difficult to see that the claims are extremely difficult to constitute a work in terms of expression. This is because the purpose of the writing of the claims is to obtain the largest possible scope of authorization with the most concise explanatory text, so its expression is characterized by generalization, abstraction and simplicity. Conversely, if the claim writer adds some descriptive or personalized sentences, it will narrow the scope of protection or become a hidden danger of patent invalidity. Since it is difficult to constitute a work, copyright disputes arising from claims are rare in practice.

 There is a large space for expression in the patent specification.

The specification is a document used to interpret the claims and is also the basis for the substantive examination of the patent administration department. It generally includes: the name of the invention or utility model; the technical field to which it belongs; the background technology; the technical problems to be solved by the invention or utility model, and the technical solutions adopted And beneficial effects; specific implementation methods.

It can be seen from the above description that there is a large space for expression in the contents of the specification, especially the two parts of "technical problems to be solved by the invention or utility model, technical solutions adopted and beneficial effects" and "specific embodiments. These two parts are generally expressed in more words and can be described in the form of illustrations. Although it is related to technology, different expressions will make a big difference in the way it is described, the degree of complexity and simplicity of the description, and the effect of the description. For example, in terms of "beneficial effects", how to arrange pictures and texts, how to use convincing logical expressions and personalized digital expressions, so that the examiner is convinced of the creative acquisition of the invention, different expressions will inevitably produce different results.

Because of this, in practice, some courts have recognized the copyright of the patent specification. For example, in the case of Xu Yan and Zhang Ying over the copyright dispute over the text of the patent specification for "cast-in-situ prestressed concrete hollow slab filled with lightweight material combination units", the court pointed out that from the expression of the patent specification involved, at least two parts of the content are original: one is the expression of the technical scheme with novelty; The second is the introduction and description of the technical effect and background technology in the patent, it involves the choice of words, the arrangement of sentences, the polishing of descriptions, etc. The patent specification involved in the case has a certain creative space in expression, and the patent specification written by different authors has personalized characteristics. Therefore, the patent specification involved in the case is original and belongs to the works protected by the copyright law of our country.

The drawings of the specification may constitute a work.

The drawings of the specification refer to various patterns in the specification in order to more clearly express the technical solutions of the invention, and there are many technical expressions, including shape diagrams, structural diagrams, assembly diagrams, component diagrams, circuit diagrams, and the like. For the drawings of the specification, the types of works that can be composed are graphic works, that is, engineering design drawings, product design drawings drawn for construction and production, as well as maps and schematics that reflect geographical phenomena and illustrate the principles or structures of things.

Due to the large expression space of the graphic language, even if the same technical scheme is expressed, different engineers can choose different chart types, composition methods, line icon combinations, etc. Therefore, in practice, some judicial organs support that the drawings of the specification can constitute a work. Taking the copyright infringement dispute between Fujian Qiaolong Special Purpose Vehicle Co., Ltd. and Chen Meng as an example, the court pointed out that the product design drawing refers to the plane pattern drawn with various lines to explain the shape and structure of the product to be produced. The "vertical well operation drainage vehicle" of Qiaolong Company contains "line shape, structure, layout, etc.", so the product design drawing "conforms to the characteristics of the works referred to in the copyright law, enjoy copyright in accordance with the law".

It is worth mentioning that what constitutes graphic works are lines, colors, proportions, angles, light and shadow, background, etc., which express a precise, concise and harmonious "scientific beauty" based on points, lines, surfaces and their combinations ". In other words, if the two drawings that make up the work are mostly the same, even if the technical solutions expressed in the different parts are very different, it does not prevent the formation of an approximation at the work level. In this regard, in the case of Interle Enough v. Taike Industry, the British Privy Council pointed out that the only reason why product designs can be protected by copyright as works is that they are graphics, not the technical characteristics they embody. If there are only subtle visual differences between the new and the old, no matter how important the technical changes are, it is not enough to make the new picture a work.



Source: China Intellectual Property News