An interesting controversy at the US Patent and Trademark Office (USPTO). Inventors frequently submit academic articles and other "copyrighted non-patent literature (NPL)" as part of a patent application. Recently, academic journals have begun to demand that patent applicants pay a license fee for this purpose. The USPTO has issued a memo saying that the doctrine of fair use (as embodied in Section 106 of the Copyright Act) permits the following uses without payment of any licensing fee:
1. Applicants may submit NPL.
2. USPTO may make NPL available to the public, for a fee, of NPL as incidental to providing a certified copy of the patent file.
3. USPTO may, on its own, provide an Applicant with NPL to explain its response to a patent application.