Comments on recent Forbes article on patenting movie scripts by Greg Aharonian of PatNews:
A recent edition (or online column) of Forbes has a very provocative article on one lawyer’s attempt to patent movie scripts. Movie scripts have always had a funny legal protective basis. Under many state laws, aspects of them aspects of them are considered “ideas”, which you would think would have these state laws be pre-empted by federal IP laws, in particular the idea-protecting patent laws. And scripts have many analogous subject matter in the patent world. And indeed, as my Web site documents, many other areas of the arts and entertainment are being patented.
The problem, much like that with software patenting around the world, is that of language, where you have different worlds (law, arts and sciences) using similar worlds that have never been consistently defined. Without the definitions, there is no resolution and no evolution and no revolution (in this case of patenting scripts). It is left to pioneering individuals like the one below to push the issue.The article raises the State Street question. If there is any chance of this flying by the CAFC, should people start flying script patents? The article also raises the Apple iPod patent question – is the following guy even first? In any event, I am available to bust movie script patents
==========Quick question: Is the Consitution more important, equal to, or less than the Bill of Rights, since it came first in time? And is Article I of the Consitution more important than Article II (etc.) because it comes
first in position in the Constitution?Greg Aharonian
Internet Patent News Service
====================Box Office Patents
Daniel Fisher, 08.15.05, 6:00 AM ET www.forbes.com/business/2005/08/15/patent-movies-scripts-cz-df_0812script.htmlIt’s the kind of plot twist that will send some critics screaming into the aisles: Why not let writers patent their screenplay ideas? The U.S. Patent and Trademark Office already approves patents for software, business methods — remember Amazon.com’s patent on “one-click” Internet orders? — even role-playing games. So why not let writers patent the intricate plot of the next cyberthriller?
That’s the idea of Andrew Knight, a recent Georgetown Law graduate and bona fide rocket scientist (he has two patents on rocket motors) who has submitted several movie plots to the Patent Office for approval. Like countless other would-be screenwriters working as cabbies and plumbers in Southern California, Knight may not yet have his own hit movie, but he worries about providing the bones for somebody else’s Matrix.
“My hope is that the skeptical public will someday look back and say, ‘I really didn’t think this would have come out at all, if it hadn’t been for a patent system protecting the idea of the creator,’ ” says Knight, who in his day job works as a patent agent helping inventors shepherd their applications through the Patent Office.
The idea isn’t as crazy as it sounds. Companies increasingly are winning patents for things that would have been inconceivable a century ago. Amazon won a patent in 1999 for one-click Internet orders, for example, and Priceline.com patented its “name your own price” system for ordering airline tickets.
More recently, Chicago-based Trading Technologies has filed a blizzard of lawsuits against hedge funds and others for allegedly infringing its patents on trading software. The firm is also seeking a 2.5-cent-per-trade cut from the Chicago Board of Trade, Chicago Mercantile Exchange and other exchanges.
The Patent Office lists scores of game patents, including one issued in 2002 to a Texas woman for a children’s role-playing game that looks a little like the old favorite Clue.
“You can get patents on games, and what’s the end result of a game?” asks James Hall, a partner and patent expert at Thelen, Reid & Priest in New York. “Laughter, tears, emotions — the same thing as a movie.”
Last year, spiritualist Uri Geller reportedly threatened to sue ABC, a unit of The Walt Disney Co., over the idea for a reality show involving child adoptions that he says was copied on 20/20. Geller says he came up with the idea several years before and had submitted an application for a patent. (There’s no sign of it on the Patent Office Web site, although a Uri Geller has won a patent on a radiation shield for cellular phones.)
Knight faces some big obstacles before his idea sweeps the Patent Office. Most intellectual property lawyers think copyright law covers things like movie scripts, which are ideas expressed in a particular way, while patents are limited to things or processes that produce some useful effect. Simply making an audience laugh — or cry, as many Gigli viewers probably did when they considered what they paid for their tickets — might not suffice.
[Greg note: why not? I can make an audience change their
emotional state by giving them a patentable drug. Why should
it make a difference what biochemical pathways I stimulate to
achieve a similar effect? Besides this objection has nothing
to do with patent law, which concerns itself with descriptions
- can I describe how to stimulate an audience so others can
practice the same stimualtion.]Patents generally cover “a machine, a process or a unique composition of matter,” says William Heinze, an attorney with Thomas, Kayden, Horstemeyer & Risley in Atlanta who first wrote about Knight’s idea on his Web site. “Is a story line one of those? That would be a tough argument,” Heinze says. “I’m all in favor of radical thinking, but that’s a tough one.”
[Greg note: it is a tough one only if you act like a copyright
lawyer and ignore recent specific linguistics developments in
the last twenty years and a few unappreciated CAFC decisiosn.]Then there’s the Shakespeare dilemma. The Bard borrowed most of his plots from poems and books by lesser writers and turned them into masterpieces. Would he have written Romeo and Juliet if it meant paying a royalty to the hack who first came up with the idea of two star-crossed lovers who die rather than live apart?
Such basic plotlines “fall through the gaps in intellectual property laws,” acknowledges Michelle Marsh, a partner with Kenyon & Kenyon in New York. “But that’s the point — so artists can take ideas and create new works out of them.”
[Greg note: once again, this idiotic two worlds of art and science.
Why shouldn't electrical circuits and chemicals "fall through the
gaps" as well - so scientists "can take the ideas and create new
inventions out of them"?]Knight agrees, up to a point. He won’t reveal the exact details of the plots he’s submitted to the Patent Office, other than to say they involve cyberspace. And he says patents would apply only to ideas that are unique and complex. But he worries that without patent protection, some Hollywood sharpies could change ideas like his around and pass them off as their own.
“I’m trying to address a person who comes up with a brand-new form of entertainment who may not be a Poe, may not be a Shakespeare, but still deserves to be paid for his work,” Knight says. “Otherwise, who will create anything?”
If keeping the status quo could prevent the next Ishtar, maybe that’s OK.
{ 8 comments }
A couple of years ago there was plenty of talk about copyrighting chess games. See
http://www.chessbanter.com/showthread.php?t=4408
Luckily, nothing came of it…
I’m waiting for the patent on movie-making in the post-State Street Bank world.
- Josh
As silly as software patents have become, is anyone honestly suprised? Lets look at the new “reforms” the gov’t is trying to push through to “help” inventors.
basiclly, first to file wins, even if you discovered and make it “open sourced”…
Bananas, you’re wrong about first-to-file, by the way. Open prior art entirely trumps a patent. It’s a common legal system in the rest of the world.
I just wish they’d get rid of software patents. Stupid.
-Billy
Billy–
I would not say published prior art “entirely” trumps a patent. For example, the patent office may issue a patent despite the existence of prior art–they may be unaware of it, or the examiner might be stupid, or the relevance may not be clear. But once the patent is issued, it has a presumption of validity and takes a lot of money to fight. so even if you “could” prove the patent “should be ruled invalid” if you had an infinite budget, most of us do not.
Wasn’t there a recent failed attempt in Congress to have first filings trump prior art? They might have another go at it.
Additionally, you’re liable for damages in the US even if you violate a patent without knowing it. And since there’s no way of knowing without reading every single existing patent first, everyone who does anything creative or productive is a potential infringer. Even worse, the US is continually working to make copyright and patent infringement criminal acts, punishable by long jail sentences.
People estimate it is already impossible to write a software program in the US without infringing patents. Far from fostering innovation, the patent system gives programmers the option to either go unemployed or write code that is likely breaking the law.
I myself have a patent application for something in a very grey area (same idea as I mention here).
I hated the entire anti-artistic process of patent filing, but I felt compelled to try to protect my art/invention from the deep pockets that are just now starting to voice claims about my decades-old idea.
If someone on here who understands Austrian economics better than I do (that would be approximately 99% of people here) can convince me that my IP worries are groundless, I will abandon my application altogether. I would like to concentrate on other things like art/entrepreneurship.
Paul D: “Wasn’t there a recent failed attempt in Congress to have first filings trump prior art? They might have another go at it.”
I am not sure what you mean; there is legislation pending to switch us from a first-to-invent to a first-to-file system, but in neither system does a first filing “trump” prior art, as far as I know (whatever “trump” means in this context).
“Additionally, you’re liable for damages in the US even if you violate a patent without knowing it.”
Of course. This is the essence of patent law. If you do it knowningly, it is “willful” and you can be subject to up to treble damages. But even if it’s done in ignorance, damages are owed.
“And since there’s no way of knowing without reading every single existing patent first, everyone who does anything creative or productive is a potential infringer.”
Even if you do read every patent, you still can never be sure since this is not an exact science.
“People estimate it is already impossible to write a software program in the US without infringing patents. Far from fostering innovation, the patent system gives programmers the option to either go unemployed or write code that is likely breaking the law.”
I would not say it “breaks the law” to infringe a patent. It is not a crime to infringe a patent, any more than it is a crime to breach a contract or to negligently get in a car wreck. It is merely an action that gives rise to a claim for damages, to liability.
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