Thursday, November 03, 2005

And they just get crazier

Via (GrokLaw)

The first ever storyline patent has been applied for by Knight and Associates. You can read it for yourself at patent application number 20050244804.
If this patent application gets approved, we are surely on the way towards owned thoughts, Maybe that's what it's like to live in an “ownership society”.

And, now, here's the clincher. What technological precedent does Knight use to back up the patentability of a storyline? You guessed it... software patents!

[0011] The fact that each particular expression (e.g., a movie) of a broad artistic invention (e.g., an original plot) is subject to copyright protection is not unique to artistic inventions. For example, the software code on a patented software-containing disk may be copyrighted. The defining criterion separating the subject matter of patents from copyrights is not whether the subject matter is related to art--see the amusing counterexample of U.S. Pat. No. 6,213,778 to Cohen. Rather, the defining criterion is whether the subject matter is a broad concept practically applied or used (patent), or a particular instance, embodiment, expression, or performance of the broad concept (copyright).



Technorati tags: ,

Comments:
This is indeed nuts. I can't imagine it will ever issue. I'd bet on it.

The guy may be well-educated and articulate, but he is a crank.

Daniel
 
At least one of us has faith in the USPTO's examination abilities. I'm actually surprised that Knight & Assoc. made no attempt to link the storyline to a technology, more like a software patent, which is why the analogy is flawed. Computer code is not patentable. But, computer code and a computer are. He probably shouldn't be trying to patent a storyline. Instead, he should try to patent a printer that prints or storyline, or something of the like.
 
Isn't a copyright essentially "ownership of thoughts"?
 
No, it's ownership of specific text. The same thought expressed a different way is not protected.
 
I suspect the USPTO will have zero interest in expanding their purview to include storylines (though I'm curious what they'd say on the subject of utility). But it's been some months since I was really up on the doings of the patent world.

Re copyright: The same thought expressed the same way is theoretically also protected if it was created by some means other than copying (the chance that you could convince someone that exact similarity is really the result of coincidence may be low.) But there's a famous quote about how someone who just spontaneously came up with Keat's Ode to a Nightingale would be entitled to copyright, and to prevent people from copying his poem without his permission -- though they could of course continue to copy Keat's identical version, which is in the public domain. The glory of the legal mind...
 
Re copyright: The same thought expressed the same way is theoretically also protected if it was created by some means other than copying (the chance that you could convince someone that exact similarity is really the result of coincidence may be low.)

If the thought is so trivial it can only be expressed in one way, it's possible it's not subject to copyright anyway. Interestingly, an issue like this came up in the copyright case related to the English translation of the Chabad siddur. If there really were only one way to translate it (and so no creative act was involved in performing the translation), the translation would have likely been ruled to have been in the public domain.

The situation you're describing is... highly unlikely, and only of interest to a theorist. :-)
 
(though I'm curious what they'd say on the subject of utility)

The patent application did address that issue. The claim is basically that the utility of the invention is entertainment value, the same as a patentable toy.

The question I still have is teh bridge between a creative work (nonpatentable) and an invention (patentable), which I'm not sure was made properly. I still see no reason that it couldn't be made.
 
If the thought is so trivial it can only be expressed in one way, it's possible it's not subject to copyright anyway.

If it can really only be expressed in one way (or even, say, three well-known ways), it should not be subject to copyright at all. The idea merges with the expression, and you can't copyright ideas. According to my copyright prof, most copying disputes come down to some version of this question, with each side trying to describe the thing copied as broadly or as narrowly as possible, so as to encourage or preclude a finding of merger. (For example "The only similarity is that both stories are about princess who get rescued, and that's an idea! There's no way to tell a story about a princess who gets rescued without involving a princess and a rescue! There's no infringement!" versus "Both stories are about a princess wearing a purple dress who is rescued by an elephant with a tiara! The princess-rescue angle is the idea, the rest is expression, which she copied from me! There are plenty of ways to write a princess-rescue story without a purple dress, an elephant or a tiara!" (This is not the best example for various reasons, but it's all that's coming to me at the moment.))

The situation you're describing is... highly unlikely, and only of interest to a theorist. :-)

Oh, certainly. But it does illustrate nicely that the issue with which copyright is concerned is copying, not originality per se. And that can be relevant in less absurd circumstances - similarity, even a high level of similarity, does not constitute infringement if it were really completely impossible for one person to have copied the other. (Though I'm told that courts sometimes forget this.)
 
Post a Comment

<< Home

Links to this post:

Create a Link