8

I found a published research paper from the research arm of a company. I would like to use what is presented in the research paper commercially. The materials presented in the research paper do not seem to be patented.

Is this legal? Does the originating company own the intellectual property, or is it now "public domain" due to the research paper being published without a patent? Does this happen quite often? What is the proper etiquette in this situation, should I just leave an attribution to the researcher?

Improve this question
2
  • 2
    The text itself is definitely copyrighted, but the underlying invention can only be protected by a patent. Which part are you interested in using?
    – user14156
    Commented Apr 15, 2014 at 21:23
  • 1
    The answer by Nicholas is good. Best approach may be to ask the authors if they patented it and if not would they mind saying why (e.g. they found prior patents.) Better to know in advance what their reaction is going to be than after you have invested time and money. They may even help you.
    – Philip Gibbs
    Commented Apr 17, 2014 at 9:58

1 Answer 1

Reset to default
6

If the subject material in the research paper is a patentable invention, it might also be the subject material of a patent.

The inventors of an invention may be the first applicants of a patent application. However, if they were employees, employed to invent as part of their normal duties for their employer, the employer is usually considered the first applicant for a patent application.

The rights in a patent or a patent application may be assigned to another person.

So: if there is a patent for an invention relating to the subject material of the research paper, it might be owned by someone other than the company from where the research paper originated. How did you check whether a patent or patent application exists for this subject matter?

Bear in mind that patent applications are made publicly accessible a certain time after the application for a patent is made. So, an applicant may have filed a patent application for the subject material of the research paper, and then published the research paper. The patent application - if extant - may not be publicly available yet. What this means is, if you put into practice the subject material of an unpublished patent application, you may in future receive notification of the patent application, and be advised to cease your operations. If the patent is granted, and you haven't ceased your working of the subject material, you might be liable for damages.

Bear in mind again, that there might be other patents - or patent applications - which relate to the subject material of the research paper. For some degree of certainty, you will need to do a patent search. You can do this yourself, but you have to bear in mind the warnings I gave above in relation to unpublished applications.

There are patent search firms who will do this service for you for a fee.

For a professional legal opinion, ask a patent attorney.

EDIT: If there are intellectual property rights to the subject material of the research paper, you can ask the proprietor of the rights for a licence.

Improve this answer
5
  • There are time limits on patents from the time of publication. So if this paper was published in the last year (or even two+), there might still be patents pending. I thought you had to file within one year of any public announcement of the work. (but there are different kinds of filing) Agree on double checking with an attorney.
    – DrLivingston
    Commented Apr 16, 2014 at 2:51
  • 3
    @DrLivingston: Just a reminder that the grace period for claiming an invention after first disclosure is available in the US, most notably. It is not the case for most other countries, where any information made available to the public regarding the invention could prevent a valid application being made for a patent to that invention in that juristiction.
    – Nicholas
    Commented Apr 16, 2014 at 3:03
  • Good point. I guess I was just trying to say, if this paper is ~10 years old, and you don't see a patent you are probably good. I didn't know that wasn't more universal. It makes more sense than the US way though I suppose.
    – DrLivingston
    Commented Apr 16, 2014 at 3:05
  • 2
    @DrLivingston: Yes, what you've said is generally true, however the OP should be aware that the only way to get a good handle on the intellectual property surrounding the subject matter of the research paper, is to conduct a patent search. And even then, such a search can be inconclusive. If there is nothing out there in the 10 years following a publication, then yes, you may feel that you are free to operate. A patent attorney is the only person that should know of all the pitfalls.
    – Nicholas
    Commented Apr 16, 2014 at 3:19
  • You made an excellent point about patent research. You still haven't answered the question though. Assuming there's no patent, how do you go about using the research of a published paper. Do you need the consent of the author? Or maybe you just need to acknowledge them, regardless of their consent? Or maybe not even that, and any published study can be used with no limits in commercial applications. Of course you would ideally want to involve the author, but sometimes this is not feasible for various reasons.
    – Andrei
    Commented Mar 1, 2018 at 10:30

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .