Patenting Plots?
Posted on November 4, 2005 Posted by John Scalzi 18 Comments
Via e-mail, I’ve been asked to give an opinion on this, in which the US Patent Office notes an application to patent story plots, the applicants reasoning apparently informed by the reasoning provided via software patents. People are already beginning to freak out about it, suggesting it’s the end of the literary world as we know it.
Well, first, let us note that the US Patent Office publishing an application is not the same as granting the patent, so everyone who is freaking out should recognize that. The patent on a plot has not been issued, just the notice that someone is trying to patent a plotline. The US Patent Office gets a lot of damn fool patent applications every year; this is probably just another one.
As to whether the patent has legal merit, well, I’m not a patent lawyer, so someone else will have to field this one. My "I am not a lawyer" opinion is that I don’t see how this patent will be granted as among other things requires a wholesale reinterpretation of ideas as "process," which seems unlikely to happen. There’s no actual process here, save what goes on in someone’s head. The actual patent application does try to cover the transfer of the idea/process from brain to mechanical/electronic storage, but while not being a patent lawyer, I’m not sure how those processes are the applicant’s to attempt to patent. This doesn’t even rise to the questionable level of a software patent, where at least the process of the code is implemented outside the human body; it’s hard to run software code in someone’s brain, but anyone who is aware of literature’s origin as an oral medium recognizes well the capacity for the entire process of literature to be contained wholly within the human body. Basically, I don’t see how you grant this patent without implicitly saying that thoughts in themselves are patentable, which is an interesting expansion of patent law.
Two practical considerations as well: The applicant’s reasoning here is that this is something of a broadside against Hollywood. Basically, this guy wants to eat Hollywood’s seed corn, and I can’t really imagine that an $80 billion industry wouldn’t react poorly to something like this (not to mention, say, the publishing industry). Also, ironically, an $80 billion industry is the one best positioned to take advantage of such a nonsensical application of patent law, as it already has lawyers, creative types and money, and the average creative joe has got himself and a jar of pennies. If you don’t think Disney, Warner Bros. et al. wouldn’t happily spend millions of dollars on an annual basis to lock up all the obvious plot ideas (including the ones already in their libraries), you have no conception of how Hollywood actually works.
This would create an interesting new job description: Plot Generator — people whose only jobs would be think up possible plots — or maybe not, as this is just the sort of data-crunching nonsense computers excel at. Also, it’s axiomatic that the studios would also force those creative people working with them to sign over their patents as a matter of course. So rather than protecting the little guy from the studios (the little guy, incidentally, being already amply protected by copyright), I suspect the practical effect will be to solidify the control of content even further into the hands of those with the money and their business interests already in the field. And then once that’s established, you can expect Disney, et al. to start lobbying for extensions to the patent length, further stifling independent creation. And then won’t this jackass feel stupid.
Basically, it’s idiotic from start to finish, and I hope (and expect) that the patent application will be denied.
IMHNLO (In My Humble Non Lawyerly Opinion) there’s pretty much no way they can grant this patent. From what I remember from a discussion I read of Patent, Copyright, and Trademark law, patents are granted on a fairly narrow basis: you can’t patent toast, for example, but you can patent a specific method of producing perfect toast every time. Somebody else that comes up with a different method of producing perfect toast every time is free to patent that.
It seems to me that this is an attempt to patent toast.
“you can’t patent toast, for example, but you can patent a specific method of producing perfect toast every time. Somebody else that comes up with a different method of producing perfect toast every time is free to patent that.”
Probably true for “toast”. Not true for all substances. If you invented and patented “patentably-distinct-badass-toast”, which stayed crunchy in milk, say, then a different process to produce “patentably-distinct-badass-toast” would not be patentable. Same analysis if you invented “process A to produce distinct-badass-toast”. See http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2113.htm#sect2113
Isn’t there only one story anyway? Or something like that.
Agreed. Idiotic indeed. Besides, we all know that intellectual property is a joke anyway. No way this patent will be granted.
One certainly hopes it won’t. The patent office has approved some notoriously stupid patents over the years but this sounds beyond the pale so….
Probably true for “toast”. Not true for all substances.
As I said, I think this is an attempt to patent toast.
Haha. Joseph Campbell will be turning in his grave (wait… is he even dead?) at the thought of how much money he could have made on The Hero’s Journey.
>> “The claims appear to cover the literary elements of a story involving an ambitious high school student who applies for entrance to MIT and prays to remain sleeping until the acceptance letter comes, which doesn’t happen for another 30 years.”
Well shit, there goes the plot outline for at least three of my planned stories. Not. (I know I know, it’s the principal of the thing…)
Although, I’ll agree that the plot line application fits into the USPTO’s process slot of the statutory matter section and may actually pass the remaining originality, non-obviousness, and usefulness (!!) tests, as well, the whole affair appears as a plot in itself to skirt around limitations of the Library of Congress’ copyright infringement boundaries, under whose more relevant jurisdiction, a plot line claim would be denied outright, since you can’t copyright ideas, only the unique expresssion of the ideas. I believe that the petitioner will have trouble in the originality requirement, since if anyone, anywhere, a thousand years ago, had an equivalent idea, even in the most remote and most isolated hamlet, (and its existence…."you’re stealing my campfire story, and you’re not suppose to do that"….can be discovered), a plot line application or namely the attempt to secure rights to a plot line, won’t pass muster under the USPTO’s originality hurdle. The whole issue is absurb, although intriguing.
The mind boggles.
I looked at his website, http://www.plotpatents.com. In one section, it gives a bit of information about him, including mention that he has “occasionally dabble[d] in fiction” since high school.
It then goes on to say, “Since then, he has conceived of a variety of unique fictional storylines. Recognizing that fierce competition for publication and financial reward focused on the quality of storytelling, as opposed to the quality of the underlying storyline itself, and further recognizing that even the world’s most skilled storytellers (of which he is clearly not) rarely turn a profit, his unique fictional storylines have matured into pending patent applications instead of novels or screenplays. He thus seeks reward on the true value of his innovations—the underlying storylines—instead of forced, sub-par expressions of these underlying storylines.”
So – it kinda seems he’s saying, “Since I can’t express these ideas in ways that make money, I shall instead attempt to make money off the raw ideas themselves.” It also sounds like he’s trying to be all Greek-philosopher-ish, implying that the story which is written can never be as good as the plot it springs from.
Or am I completely misreading this?
Paul, you may be referring to “there are only seven stories” or “there are only two stories” or whatever the du jour is. IMO, there are only seven (or two, depending on how you count) kinds of unimaginative authors.
Following on what RONW said, I think I could probably work up a good obviousness argument.
(I am not a lawyer. This is not legal advice.)
As noted above, one of the requirements for patentability is that the subject matter to be patented be non-obvious. According to 35 USC §103, a patent will be denied if “differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.”
The keys here are “the prior art,” “obvious at the time the invention was made,” and “person having ordinary skill in the art.”
So, what is our prior art? Well, it is the sum total of all stories in existence. Specifically, I’m going to go with Rip van Winkle, by Washington Irving, 13 Going on 30, starring Jennifer Garner, and Orange County, featuring Jack Black.
A “person having ordinary skill in the art” is one who has had a regular education for the field, and a regular amount of work experience. In this case, it would probably be a person with at least a high-school education, who has read and written fiction stories.
If the application is scheduled to be published soon, then the invention is not much more than 18 months old, because there is an 18 month window between the filing of the application and the publication. 18 months ago, would it have been obvious to a person reasonably familiar with fiction to combine elements from Rip van Winkle, 13 Going on 30, and Orange County?
The way that story elements get jumbled around, it would seem fairly obvious to combine elements of any set of stories. (A major patent law case involved doorknobs: Just because nobody had made a doorknob out of wood before you did [they had all been porcelain], doesn’t mean that it wasn’t obvious to do that. It just meant that nobody had gotten around to it yet.)
I can analogize: In Graham v. John Deere, 383 U.S. 1, if parts on a plow are lined up ABC, it’s obvious to line them up ACB.
Just because nobody has done it, doesn’t mean that it wasn’t obvious to one in the art. It just means they hadn’t gotten around to it yet.
To sum up: Non-obviousness looks to all of the prior art, and determines whether a regular practitioner would have considered this an obvious next step. I think this is pretty obvious.
K
Heh. This is exactly like that one guy a while back who put his manuscript up on eBay for million dollars, in hopes that some big-name author would buy and publish it under his/her own name.
The sales pitch has more legalese (and better grammar), but it’s the same trick in different clothes.
I actually wouldn’t be surprised if this were just a way to get some attention to sell his screenplay. It’s not entirely free publicity, but so far all he’s paid for is the patent filing, and a really cheap website. I call publicity.
K
“As I said, I think this is an attempt to patent toast.”
If I’m not mistaken, a patent was recently granted for the idea of mixing multiple brands of packaged breakfast cereal.
In other words, a patent for mixing Special K and Raisin Bran.
This was a business process patent. Presumably, a hotel chain would be risking violation if guests were given the potential opportunity to mix the contents of a couple of those little single-serving cereal boxes.
It’s my understanding that the cereal-themed restaurant who obtained this patent has already been trying to use it against another breakfast-oriented business.
So, while toast might not be patentable, a company could probably get a patent on the optional application of multiple spreadlike substances to a piece of toast. If they counted ‘no spreads’ as one of their ‘configuration options’, that might just fly with the patent office and/or judges as a valid patent on toast.
I think there’s also a patent on what amounts to ‘teasing a cat with a laser pointer’.
Never, ever, underestimate the stupidity of the PTO.
This sounds a bit to me like the novice-writer fear of their stories being stolen by the publishers they submit to, taken to the umpteenth power by some schmuck with access to cheap legal expertise.
“Non-obviousness looks to all of the prior art, and determines whether a regular practitioner would have considered this an obvious next step.”
In more sensible eras, that may have been true.
Also, keep in mind that the patent office now has to generate its own funds, which gives them an incentive to grant patents for any lame idea that comes in over the transom.
“This sounds a bit to me like the novice-writer fear of their stories being stolen by the publishers they submit to”
This attitude is astonishingly common among amateur writers, and really, the population in general. An awful lot of people evidently think they can copyright a storyline, for example. I don’t have anything helpful to contribute here — it’s just something I see a lot of on one amateur fiction board I frequent, and I’m continually amazed at how strong (and how *wrong*) the general population’s sense of copyright, as an idea is.
That said, I can’t imagine the PTO granting a patent on plots. Without peeking, I’m having fun imagining what the claims would be, though.
For those that want to keep track of the progress of this application throught the patent office, try this URL
http://portal.uspto.gov/external/portal/!ut/p/_s.7_0_A/7_0_CH/.cmd/ad/.ar/sa.getBib/.c/6_0_69/.ce/7_0_1ET/.p/5_0_18L/.d/2?selectedTab=detailstab&isSubmitted=isSubmitted&dosnum=10722473
(author is a registered patent agent)