Commons talk:Licensing/U.S. patents

U.S. patents

In order to use the image en:Image:US3386883 - fusor.png in french wiki, I planned to upload it to Wikimedia Commons, but I don't know which licensing option, if any, I should use. I see in the description page :

The text of U.S. patents are in the public domain worldwide [1]. Patent illustrations may be copyrighted, but U.S. patent regulations explicitly require applicants to allow "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" (37 C.F.R. 1.71). The patent on the invention itself may not yet have expired, and trademark protection is not affected by a mark's appearance in a patent.

Are one of:

• "Copyrighted but use of the file for any purpose is allowed"
• or "Original work of US Federal Government - public domain"

a correct licensing option, and are there extra precautions to take while using the image?

Croquant 14:24, 27 April 2006 (UTC)

You should use {{PD-US-patent}}, not {{PD-USGov}}, which would be misleading: a patent is (usually) not a work of the government. There is also a generic {{Patent}} template for patents from other countries.

Note: these tags are, like several more license tags, not available in the selector on the upload page. The list would become too long if all possible tags would be shown. If you want to use a tag that is not in the list, simply leave it to "none selected", and add the tag manually to the description text. -- Duesentrieb^(?!) 14:34, 27 April 2006 (UTC)

The interpretation as public domain is nonsense. The permission is "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" which clearly refers to a facsimile (ie, unmodified) reproduction of the patent document as a whole. By no means illustrations or text may be taken out of the context and seen as public domain, if they are eligible for copyright. This is clearly stated: "Patent illustrations may be copyrighted". This is a fair use provision for copying the whole parent document (mainly the text, which is often in the public domain because it is ineligible for copyright anyway) even if it contains copyrighted images or copyrighted text (yes, "There are also instances where a portion of the text [...] of a patent may be under copyright"[2]), but it is neither a public domain dedication nor a free license for the picture or the text, as far as they are eligible for coypright. I'd say {{PD-US-patent}} should be gotten rid of entirely since it is a serious misinterpretation that pictures in patent descriptions are released as public domain, which is the opposite of what the referenced source actually says. Many pictures have been uploaded according to this misinterpretation. Exclusively {{PD-ineligible}} and {{PD-old}} should be used. If they don't apply, 37 C.F.R. 1.71 won't help you either. It only guarantees a Nonderivative license on the Patent as a whole. --Rtc 14:39, 27 April 2006 (UTC)

We should accept the pictures under this circumstances. Fanatics like Rtc will eliminate also all Panoramafreiheit pictures from Commons because the shown work is not allowed to be modified. BTW: German Patentschriften are official works (Art. 5 II UrhG) with Veränderungsverbot --Historiograf 18:41, 27 April 2006 (UTC)

Please don't misunderstand me! I am not against keeping nonderivative pictures or pictures with nonderivative elements if they are correctly declared so and policies permit this. For these pictures here, I don't see how outside of the whole, unmodified patent they could be kept, since they are clearly protected by copyright, as stated by [3]. Thus, these pictures, if not ineligible or expired, are a copyright violation, as far as I see. A different question would be when keeping nonderivative (the full patents) or partly nonderivative (Panoramafreiheit, Beiwerk) pictures complies to commons policy at all. We can't call exceptions such as Art. 5 II UrhG or 37 C.F.R. 1.71 public domain since they simply are not. They are partial exceptions from copyright and this exception in effect does not produce the freedom of a free license, since nonderivative work is not permitted. If Commons really want to keep such pictures in a reasonable fashion, policies need to be changed to permit nonderivative (and if we are at it, let's also add journalistic) licenses. This would increase honesty significantly and people wouldn't try to twist nonderivative and journalistic license statements with wishful thinking interpretation until it fits the current policy. --Rtc 19:29, 27 April 2006 (UTC)

Thus, I propose to change the template. By wishful and uncritical thinking, the referenced laws were twisted entirely contrary to what they actually say – abstruse, isn't it. Pictures eligible for copyright by the usual rules are exactly not permitted to be taken out of context under this permission. Yet, this tag was used to upload exactly such pictures. Delete these pictures.

Fair use

This U.S. patent contains copyrighted text or pictures. To ensure that reproduction in the context of the patent document as a whole is possible, copyright holders of such works are required to permit "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"(37 C.F.R. 1.71). The works remain copyrighted and may not be taken out of the context of the unmodified patent.[4] By the usual rules for eligibility, text and pictures of patents are often not eligible for copyright. Only if this is the case, they may be taken out of the context and uploaded as {{PD-ineligible}}.

<includeonly>[[Category:US patent with copyrighted parts|{{PAGENAME}}]]</includeonly> <noinclude>[[Category:Image copyright tags|{{PAGENAME}}]]</noinclude> --Rtc 01:23, 10 May 2006 (UTC)

Whoa, that new text needs work. "is copyrighted" as a blanket statement is incorrect. The regulation very specifically says that if a copyright claim is made on anything included with the application, that material needs to be identified and disclaimed with the prescribed language. Most US patents contain no such claims or notices. --IMeowbot 14:23, 17 May 2006 (UTC)

Interesting. Does a picture loose copyright if published without a copyright claim in a patent? Have the pictures where this tag is used been checked for respective copyright claims? If I understand correctly, the disclaimer does not allow pictures with such claims to be taken out of context as far as I understand, yet the tag seems to be used exactly to justify taking pictures out of context – perhaps with such disclaimers? --Rtc 19:18, 17 May 2006 (UTC)

The situation with patents and copyrights in the US is confusing and has a long history of back-and-forth. I'll try my best to explain briefly :)

The general "public domain" rule comes from the way paenets are published here, as a part of the Federal Register. For utility patents (the ones with all-numeric identifiers, and what are known as "patents" in the rest of the world), this is pretty straightforward: the text and ilustrations are not creative works, they are government forms.

The place where things can get murky is with what are called design patents in the US (those with a 'D' prefix, known as registered designs and not generally called patents outside the US). For many years, it was very simple: there was something called the election doctrine that allowed one to obtain a design patent or a copyright in an ornamental design, but not both.

In recent years, the position has changed, and in the case of design patents, one may also claim copyright in that design.

It is this change in the allowance of copyright protection, combined with the continued publication of registered designs in the Federal Register, that the peculiar identification requirements exist: to identify the privately owned pieces of the larger government work. --IMeowbot 01:33, 23 May 2006 (UTC)

So I realize this fish has been dead for six or seven years now, but I have been scrounging around for answer to a basic patent question and so far all I find is more confusion. The situation: I have done an Internet search for an object that I want to use to illustrate an article on Wikipedia. I found a diagram in a US patent that illustrates the concept/ term/ article. The image is a technical schematic with no creative element other than that implied by the existence of the patent itself. The patent was filed after 1989. The question, then: can I upload the image to Commons? If so, under what license? And when I get an answer to that, it would be great to see a change in the relevant license tag(s) to either specifically state the eligibility of such images or to emphasize that this tag or that tag cannot be used for such images with a brief blurb about why and a mention of possible exceptions under such-and-such circumstances, if any. Six year old fish. Anyone?? Thanks! KDS4444 (talk) 22:28, 15 January 2014 (UTC)

I have answered my own question. Having read over (and over) the details of the various PD licenses, I have determined that any line drawing or diagram of a household or utilitarian object (but probably also a great proportion of similar images of non-household objects of dubious utility) do not meet the threshold of originality and therefore do not qualify for copyright protection— {{PD-ineligible}} should be sufficient license for such images, whether or not they come from a patent (i.e., the fact that an image exists within a patent, even in a patent that claims copyright over some of its content, does not imbue copyright protection to that image— a line drawing is a line drawing no matter wherefrom, and is ineligible for copyright protection, which was my point of confusion, which is now gone). Thank goodness: old fish is so foul anyway. KDS444 (talk) 14:15, 21 January 2014 (UTC)