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1512 Relationship Between Design Patent, Copyright, and Trademark
1512 Relationship Between Design Patent, Copyright, and Trademark
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I. DESIGN PATENT/COPYRIGHT OVERLAP
There is an area of overlap between copyright and design patent statutes where the author/inventor can secure both a copyright and a design patent.
- Thus an ornamental design may be copyrighted as a work of art and may also be subject matter of a design patent.
- The author/inventor may not be required to elect between securing a copyright or a design patent.
II. INCLUSION OF COPYRIGHT NOTICE
It is the policy of the U.S. Patent and Trademark Office to permit the inclusion of a copyright notice in a design patent application, and thereby any patent issuing therefrom, under the following conditions.
- (A) A copyright notice must be placed adjacent to the copyright material and, therefore, may appear at any appropriate portion of the patent application disclosure including the drawing.
- However, if appearing on the drawing, the notice must be limited in print size from 1/8 inch to 1/4 inch and must be placed within the “sight” of the drawing immediately below the figure representing the copyright material.
- If placed on a drawing in conformance with these provisions, the examiner will not object to the notice as extraneous matter.
- However, if appearing on the drawing, the notice must be limited in print size from 1/8 inch to 1/4 inch and must be placed within the “sight” of the drawing immediately below the figure representing the copyright material.
- (B) The content of the copyright notice must be limited to only those elements required by law. For example, “© 1983 John Doe” would be legally sufficient and properly limited.
- (C) Inclusion of a copyright notice will be permitted only if the following waiver is included at the beginning (preferably as the first paragraph) of the specification to be printed for the patent:
- A portion of the disclosure of this patent document contains material to which a claim for copyright is made. 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 reserves all other copyright rights whatsoever.
- A portion of the disclosure of this patent document contains material to which a claim for copyright is made. 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 reserves all other copyright rights whatsoever.
- (D) Inclusion of a copyright notice after a Notice of Allowance has been mailed will be permitted only if the criteria of 37 CFR 1.312 have been satisfied.
III. DESIGN PATENT/TRADEMARK OVERLAP
A design patent and a trademark may be obtained on the same subject matter.
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