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Topic: Patent Expired, still protected by copyright? (Read 1002 times) |
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Vincent
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Patent Expired, still protected by copyright?
« on: Feb 17th, 2006, 12:36am » |
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The patent of a toy has been expired. Can someone copy the toy with the same dimension? Is it still protected by copyright?
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CriterionD
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Re: Patent Expired, still protected by copyright?
« Reply #1 on: Feb 17th, 2006, 2:14am » |
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I believe your answer can be found here:
http://www.bitlaw.com/copyright/unprotected.html
Quote:Copyright protection is generally not available to articles which have a utilitarian function. Examples of these types of "useful articles" would include lamps, bathroom sinks, clothing, and computer monitors. Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Unfortunately, this test is inherently ambiguous when deciding the scope of copyright protection for certain useful articles.
Some distinctions are clear. For instance, a painting on the side of a truck is protectable under copyright law even though the truck is a useful article. The painting is clearly separable from the utilitarian aspects of the truck. The overall shape of the truck, on the other hand, would not be copyrightable since the shape is an essential part of the truck's utility. Another commonly considered example is that of clothing. The print found on the fabric of a skirt or jacket is copyrightable, since it exists separately from the utilitarian nature of the clothing. However, there is no copyright in the cut of the cloth, or the design of the skirt or jacket as a whole, since these articles are utilitarian. This is true even of fanciful costumes; no copyright protection is granted to the costume as a whole.
One of the primary purposes for prohibiting copyright protection in useful articles is to prevent the granting of patent-like protection through the copyright laws. If a useful article was protected under the copyright law, the protection against copying would be quite similar to patent protection. Since copyrights are so much easier to obtain than patents, there would be no way of limiting this patent-like monopoly to inventions that are truly novel and non-obvious. (For more discussion on patent protection, see the BitLaw discussion on patents).
Another interesting copyright concern is the extent of copyright protection in pictoral or sculptural works that portray a useful article. Take, for example, a painting of a futuristic looking automobile. Copyright protection would prevent the outright copying of the painting. In addition, copyright law would prevent the creation of a three-dimensional model of the automobile found in the painting. However, under the specific terms of the Copyright Act, copyright law would not prevent General Motors from making a working (hence utilitarian) automobile of the design found in the painting.
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www.criteriondynamics.com
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JSonnabend
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Re: Patent Expired, still protected by copyright?
« Reply #2 on: Feb 17th, 2006, 8:44am » |
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Wow, that was helpful.
The better answer is that the Supreme Court has recently addressed in a series of opinions functionality in various contexts outside of patents. The Court is seemingly hostile to any attempt to cover functional aspects of anything by anything other than utility patents. Thus, to the extent that the toy in question was covered by a utility patent, those previously patented aspects should be up for grabs.
You'll need to properly analyze what exactly the patent(s) covered and distinguish between functional aspects and creative/commercially distinctive aspects. The idea vs. expression analysis is, of course, also relevant.
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
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Vincent
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Posts: 2
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Re: Patent Expired, still protected by copyright?
« Reply #3 on: Feb 21st, 2006, 12:10am » |
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However, the Berne Convention for international copyright protect appearance design for applied arts. Is USA a member of Berne Convention?
Industrial Designs are qualified as works of applied art if the articals are 1) practical applicability; 2) artistic quality; 3) originality; and 4) reproducibility. Look at the case of LEGO vs Tinjin COKO, LEGO was granted protection under the Berne Convention.
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JSonnabend
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Posts: 2251
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Re: Patent Expired, still protected by copyright?
« Reply #4 on: Feb 21st, 2006, 7:38am » |
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The Berne Convention is not "law", it's a convention. To determine how the U.S. treats copyrights and patents (and the intersection of the two), one needs only look at U.S. law.
As an aside, if I've got the right Lego case in mind, it would have had a drastically different outcome under U.S. law (ever see "Megablocks" on U.S. toy shelves?).
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
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