Strategies for Discerning the Boundaries of Copyright and Patent Protections

Patents, Copyright and Trademark and Intellectual Property

Article Snapshot


Pamela Samuelson


Notre Dame Law Review, Vol. 92, No. 4, pp. 1493-1538, 2017


Copyright law protects works of authorship, and utility patent law protects technological designs. Products like toys and software are sometimes eligible for both types of protection. Courts resist extending copyright and design patent protection simultaneously.

Policy Relevance

Copyright and patent law are very different. Allowing a creation to be protected by both copyright and patent law is likely to cause problems.

Main Points

  • Traditionally, copyright protection was available for works of authorship, and utility patents for inventions; sometimes, creators have claimed that a work such as a bookkeeping system was protected by copyright and by utility patents.
  • Arguably, products such as toys, computer programs, and puzzles might be protected by both copyright and by utility patents.
    • Some courts allow protection of some aspects of the creation under copyright, and other aspects by utility patents.
    • An original drawing of a parachute is copyrighted, but utility patents protect the design.
  • Many cases and commentators try to maintain clear separation between patent and copyright; the drafters of the Constitution and Congress conceived of copyright and patent as different areas of law, and the copyright and patent law are very different.
  • Courts note that the author of a book on machines should not be able to bootstrap his copyright in a book to extend patent rights he held in the machines, once those patents have expired.
  • In cases concerning software, the Supreme Courts and other courts hesitate to state clearly that a creation can never be copyrighted and protected by utility patents; but no court has upheld a claim that the same elements of work are protected both by patent and by copyright law.
  • In 1976, Congress specified that copyright law could never protect ideas, processes, principles, or discoveries.
  • Generally, with toys, patent law protects patentable elements such as a wind-up mechanism, and copyright law protects the expressive elements.
  • Some cases require the creator to choose either copyright protection, or patent protection; courts use the “Merger Doctrine” when the patentable elements of a product and its copyrightable elements cannot be distinguished, denying one type of claim.


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