DOES REPRODUCING DOCU-MENTS OF AN ALLOWED PAT-ENT APPLICATION INFRINGE COPYRIGHT?

01/01/2003

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Article 39 Paragraph 2 of the Patent Law pro-vides that "after a patent application is allowed and published, any person may apply to read, transcribe, photograph or photocopy the exami-nation decision, patent specifications, drawings, oath, and all file information." The Ministry of Justice (MOJ) recently expressed the following opinion as to whether transcribing, photograph-ing or photocopying the examination report, specification, drawings and oath of an allowed and published patent application constitutes in-fringement of another's copyright:

Information published on allowance of appli-cation: The MOJ stated that of such informa-tion, the part representing the creative work of a patent applicant may be regarded as a work and enjoy copyright protection under the Copyright Law, and does not lose such copy-right by being so published. However, Article 21 Paragraph 1 of the Criminal Code provides that "an act performed in accordance with legislation is not punishable." When a person applies under Article 39 Paragraph 2 of the Patent Law to reproduce such a copyright work, then regardless of whether the actual act of reproduction is performed by the applicant or by personnel of the competent authority at the applicant's request, it is exempted by Ar-ticle 21 of the Penal Code, and therefore does not infringe the economic rights in the work.

However, if such material is reproduced or used other than in accordance with Article 39 Paragraph 2 of the Patent Law, then regardless of whether such material was obtained in ac-cordance with the above article, its content is still protected by the Copyright Law, and any unauthorized use will infringe the economic rights in the work, except insofar as such use complies with the provisions limiting eco-nomic rights as set out in Articles 44 to 65 of the Copyright Law, or other relevant laws.

Information not published on allowance of application: With regard to such information, the MOJ stated that any works contained in the applicant's application, patent specification, necessary drawings, and oath are protected by the Copyright Law, and except insofar as ex-plicitly permitted by law, may not be freely used to the detriment of the copyright holder's interests. Therefore, only the reproduction of an application to the competent authority is protected from illegality by Article 39 Para-graph 2 of the Patent Law. Further unauthor-ized use of such material in any other way is not allowed, and will therefore constitute in-fringement of the economic rights in the work, unless otherwise exempted by Articles 44 to 65 of the Copyright Law.