美國專利說明書37 C.F.R. 1.71 - 著作權議題

筆記

美國CFR規範美國專利說明書撰寫的章節包括：

37 C.F.R. 1.71 Detailed Description and Specification of the Invention
37 C.F.R. 1.72 Titile and Abstract
（http://enpan.blogspot.tw/2009/04/blog-post_23.html）
37 C.F.R. 1.73 Summary of the invention
（過去報導：http://enpan.blogspot.tw/2015/09/summary.html）
37 C.F.R. 1.74 Reference to Drawings
37 C.F.R. 1.75 Claim(s)
（過去報導：http://enpan.blogspot.tw/2008/09/about-claims-x-37-cfr-175.html）

- 37 C.F.R. 1.71規範專利說明書的撰寫原則
(a)說明書應包括物品發明（或發現）揭露書，以及其製造與使用流程，並應以完整、清楚、簡潔與準確的用語描述，使得發明相關技術或科學領域人員可以據以實施該發明或發現，或是以最接近的連結使得可以製造或使用該發明或發現。
(b)說明書應提出要取得專利的精確的發明描述，而可以使之與先前技術區隔，說明書應完整描述流程、機器、製成物、成份或其改善的實施例，並應解釋其中運作模式或是可實施原理，並應闡述其可實現的最佳模式。
(c)以改善發明來說，說明書應指出流程、機器、製成物或成份登需要改善的部分，說明書應限定其必要運作而完整瞭解的改善內容。
(d)說明書描述的規定，如面對著作權、光罩的著作權等標示。
(e)權利保留條款。
(f)說明書（specification）應以新的一頁開始撰寫，與請求項、摘要與程序列表（sequence listing）區隔。
(g)說明書應揭露出共同開發的各方姓名（合約）。應隨附費用。

- 這裡有個議題「專利的著作權」，可參考patently-o文章：http://patentlyo.com/patent/2015/05/copyrighting-your-patent.html

37 C.F.R. 1.71中規範讓專利申請人保留說明書中揭示內容的著作權宣告：「專利說明書包括涉及著作權或光罩的材料的保護，相關著作權擁有人並不會對他人在專利局的專利文件中的複製提出異議，但保留其他用途的權利」，意思就是，根據1987年USPTO的政策宣示，讓專利權人提出以下宣告，拋棄他人引用專利內容在其他專利文件的權利。

"A portion of the disclosure of this patent document contains material which is subject to (copyright or mask work) protection. The (copyright or mask work) 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 or mask work) rights whatsoever."

表示，專利說明書有著作權保護，但實務上幾乎沒有此類爭議，也鮮少看過這類宣告，我想大家都是很有默契地互相引用，互相尊重著作權而標示來源。

patently-o作者提到1929年案例「Korzybski v. Underwood & Underwood, 36 F.2d 727 (2d Cir. 1929)」，指出一旦申請專利，就表示對公眾開放權利。但從patently-o調查來看，愈來愈多專利加入這些宣告。

列舉一例：


[法條]
37 C.F.R. 1.71 Detailed Description and Specification of the Invention

• (a) The specification must include a written description of the invention or discovery and of the manner and process of making and using the same, and is required to be in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which the invention or discovery appertains, or with which it is most nearly connected, to make and use the same.
• (b) The specification must set forth the precise invention for which a patent is solicited, in such manner as to distinguish it from other inventions and from what is old. It must describe completely a specific embodiment of the process, machine, manufacture, composition of matter or improvement invented, and must explain the mode of operation or principle whenever applicable. The best mode contemplated by the inventor of carrying out his invention must be set forth.
• (c) In the case of an improvement, the specification must particularly point out the part or parts of the process, machine, manufacture, or composition of matter to which the improvement relates, and the description should be confined to the specific improvement and to such parts as necessarily cooperate with it or as may be necessary to a complete understanding or description of it.
• (d) A copyright or mask work notice may be placed in a design or utility patent application adjacent to copyright and mask work material contained therein. The notice may appear at any appropriate portion of the patent application disclosure. For notices in drawings, see § 1.84(s). The content of the notice must be limited to only those elements provided for by law. For example, “©1983 John Doe”(17 U.S.C. 401) and “*M* John Doe” (17 U.S.C. 909) would be properly limited and, under current statutes, legally sufficient notices of copyright and mask work, respectively. Inclusion of a copyright or mask work notice will be permitted only if the authorization language set forth in paragraph (e) of this section is included at the beginning (preferably as the first paragraph) of the specification.
• (e) The authorization shall read as follows:

  A portion of the disclosure of this patent document contains material which is subject to (copyright or mask work) protection. The (copyright or mask work) 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 or mask work) rights whatsoever.

• (f) The specification must commence on a separate sheet. Each sheet including part of the specification may not include other parts of the application or other information. The claim(s), abstract and sequence listing (if any) should not be included on a sheet including any other part of the application.
• (g)
  • (1) The specification may disclose or be amended to disclose the names of the parties to a joint research agreement as defined in § 1.9(e).
  • (2) An amendment under paragraph (g)(1) of this section must be accompanied by the processing fee set forth § 1.17(i) if not filed within one of the following time periods:
    • (i) Within three months of the filing date of a national application;
    • (ii) Within three months of the date of entry of the national stage as set forth in § 1.491 in an international application;
    • (iii) Before the mailing of a first Office action on the merits; or
    • (iv) Before the mailing of a first Office action after the filing of a request for continued examination under § 1.114.
  • (3) If an amendment under paragraph (g)(1) of this section is filed after the date the issue fee is paid, the patent as issued may not necessarily include the names of the parties to the joint research agreement. If the patent as issued does not include the names of the parties to the joint research agreement, the patent must be corrected to include the names of the parties to the joint research agreement by a certificate of correction under 35 U.S.C. 255 and § 1.323 for the amendment to be effective.

補充資料：
「Korzybski v. Underwood & Underwood, 36 F.2d 727 (2d Cir. 1929)」，來：http://law.justia.com/cases/federal/appellate-courts/F2/36/727/1473183/

法院對專利文獻的著作權決定是，當Korzybski提出專利申請並取得專利，其中完整的揭露內容已經貢獻給大眾（dedicated to public），並取得發明的製造、使用與販售的壟斷權利，而公眾則有權知道專利的資訊，而有權利使用或複製當中文字與圖式。

也就是，專利權已經賦予專利權人對於該發明的製造、使用與販售的壟斷權，其中揭露內容為公眾領域，不得主張著作權。

"When Korzybski filed his application and received his patent, he made a full disclosure of his invention and dedicated it to the public, save for the right to make, use, and vend it during the period for which the patent gave him that monopoly. The public had the right to the information disclosed in his patent and the right to use and copy the text and diagrams. Section 7 of the Copyright Act (17 USCA § 7) provides: "That no copyright shall subsist in the original text of any work which is in the public domain." Everything disclosed in the patent became a part of the public domain, except the monopoly of the patentee to make, use, and vend the patented device for a limited time.

The filing of the application for the patent, including, of course, the diagrams, was a publication that entitled anyone to copy the drawings. Callaghan v. Myers, 128 U.S. 617, 9 S. Ct. 177, 32 L. Ed. 547. We cannot see that the complainant has disclosed anything different in his copyright from that which appears in his patent. The defendant has done no more than photograph the anthropometer. This we hold it had a right to do, because the anthropometer was an embodiment of the drawings of the patent. The copyright was invalid, because the subject-matter had become a part of the public domain when complainant filed the prior application which resulted in the grant of his patent.

An inventor who has applied for and obtained a patent cannot extend his monopoly by taking out a copyright under section 5(i) of the Copyright Law, 17 USCA § 5(i), on what he has already diagrammatically disclosed.

The decree is affirmed."

資料來源：http://www.bitlaw.com/
Ron