Patenting a Plot

November 3, 2005 11:56 AM

Can you patent a plot?On Tuesday, the USPTO published an application for patent that is certain to test the limits of the USPTO's authority to grant or deny a patent. It is also an interesting exercise in self-promotion. U.S. Patent Application 20050244804 entitled "Process of relaying a story having a unique plot" is the brainchild of Andrew Knight, a registered U.S. Patent Agent. Mr. Knight is a principle in Knight and Associates a patent attorney firm who bill themselves as "[...] the first patent prosecution firm to attempt to obtain utility patent protection on fictional plots." Forbes Magazine described them as box office patents. It is part serious attempt, part parody on the wobbly state of the patent system and the entertainment industry, and part shameless act of self promotion. Very rock and roll.
posted by three blind mice (77 comments total)

I don't see any reason why one shouldn't be able to patent a plot.

The plot would still have to be novel in light of millions of books/movies/stories that will serve as prior art. To try to patent a plot, one still has to overcome the novelty and non-obviousness requirements.

But assuming that one can do that, I don't see any reason why a plot shouldn't be patentable.
posted by dios at 12:21 PM on November 3, 2005

Seems like they're patenting the 'idea' of a plot, not a spesific one.
posted by delmoi at 12:26 PM on November 3, 2005

[0015] A patent system that sanctions and defends patents on artistic inventions, such as new and nonobvious plots, will spur an array of never-seen-before, never-experienced-before, intellectually inspiring forms of entertainment. A patent system that lethargically clings to an as-of-yet unarticulated rule that artistic inventions are not patentable subject matter because they are not closely enough related to a mechanical gear or an electronic integrated circuit will guarantee our nation the same repertoire of mind numbing movies and dime-a-dozen boy bands.
posted by MiltonRandKalman at 12:26 PM on November 3, 2005

I don't see any reason why one shouldn't be able to patent a plot.
Sure, because what better way to foster a creative society than to tax every exchange of ideas.

(Quick question: why the rush to apply patent law to areas previously covered by copyright? Because copyright has that pesky unprofitable "fair use/dealing" clause). Refer to software and business methods patents for more information (subject to an access fee, natch).
posted by Popular Ethics at 12:31 PM on November 3, 2005

Just so everyone knows, I've patents the process of talking about patents. Prepare to hear from my lawyers.
posted by blue_beetle at 12:32 PM on November 3, 2005

patented!
posted by blue_beetle at 12:32 PM on November 3, 2005

Popular Ethics: the sole purpose behind patent law is to spur invention and "foster a creative society" by issuing an incentive to create art. If I know that my idea will be ripped off by anyone, than I have no incentive to expend my time, energy and effort into creating it.
posted by dios at 12:35 PM on November 3, 2005

I don't see any reason why one shouldn't be able to patent a plot.

Seems to me like this could open a can of very large, radioactive-bred worms. With what level of specificity should you be able to patent the plot? Should someone be able to patent something as generic as maverick-cop-defies-by-the-book-chief-to-stop-ultra-clever-new-criminal? Assuming that you wouldn't be able to patent that level of genericness, who would be the arbiter of just how legally different, say, Dirty Harry is from Beverly Hills Cop or McGarnickle?
posted by COBRA! at 12:38 PM on November 3, 2005

If they can successfully patent a plot it will go along way to showing how silly the patent system can be. Not that the patent on swinging on a swing from side to side and countless others have not.

I can imagine professors of literature with say Northrop Frye's Anatomy of Criticism in one hand and a good stiff drink in the other arguing how patently absurd the idea is in court.

Watch Roman Holiday for example, and then follow it up with The House of Flying Daggers. Many plot and thematic similarities, but then art and literature have distinct forms that mirror, to an extent, our pyschological concerns.

This would be horrible if they erroneously awarded a patent to plots on structural levels that have been used again and again for centuries. Hence the need for the drink. But perhaps the phrase "good stiff drink" will also be patented.
posted by juiceCake at 12:48 PM on November 3, 2005

IANAL, but patenting the "idea of a plot" is like patenting the "idea of a song". I don't think so. Yes, the purpose of a patent is to spur invention, but that's precisely why you can't patent the notion of something that "might" be invented, like perpetual motion.
posted by weapons-grade pandemonium at 12:50 PM on November 3, 2005

I maintain that artists create because it is what they do and that for the most part monetary compensation is secondary. Greater monetary awards will spur the business community toward greater control of artistic output. As it is, I can think of several examples of musicians that where sued because a song they wrote was similar to something an unknown had written.

By giving the power to patent a plot to someone unable or unwilling to execute that plot as a finished piece, the level of creative expression in the world will be diminished, not enhanced.This is because after the creative artist finishes a work or even before it is fairly begun, the question arises, "Is this something that I will be allowed to publish as my own?"

Norman Spinrad addressed a related issue in a short story titled "Elephant's Memory" or something like that.
posted by pointilist at 12:53 PM on November 3, 2005

COBRA!, as I stated above, you have to prosecute a patent. During the process, prior art is looked at and examined to see if the idea that you are proposing is a novel and non-obvious.

The question you are asking is a non-issue because of the novelty and non-obviousness requirements. Of course you can't patent "a movie about buddy cops" or whatever because it is novel based on a review of prior art and it certainly is not non-obvious.
posted by dios at 12:53 PM on November 3, 2005

should say.... "because it isn't novel..."
posted by dios at 12:54 PM on November 3, 2005

delmoi : "Seems like they're patenting the 'idea' of a plot, not a spesific one."

It sure doesn't seem like that in the patent itself. The patent basically covers a story wherein:

A character says he wants to sleep or be unconscious until something happens.
The character then either: gets married, has kids, or works.
The character is then unable to remember having done the stuff he did.
This has to take place over more than 1 year.
At least 3 other characters have to believe the main character was conscious during this time.
...
...
and then I got kinda tired of reading. But, as you can see, it's not a patent on "having a plot", it's a patent on a specificish plot.
posted by Bugbread at 1:02 PM on November 3, 2005

and what weapons-grade pandemonium said.
posted by pointilist at 1:03 PM on November 3, 2005

I just can't get worked up about this silliness anymore. China, India and Brazil are well on their way making the USPTO irrelevant.
posted by Mr T at 1:03 PM on November 3, 2005

I see what you're saying, but, well, JuiceCake provided much better examples than I did. There really aren't that many plots out there; the differences between them are usually a matter of nuance (and yeah, looking at it this way requires taking a few steps back into abstraction-- there's only one movie about Luke Skywalker getting his father's lightsaber on planet Tatooine and blowing up the Death Star, but a young hero receiving an empowering artifact and going off to fight evil in a labyrynth is a plot that's been around for a long, long time), so I still think that the question of what level of abstraction is patentable is valid (and I'll readily admit that this could just be my ignorance of the law).

To me, a court having to decide if Superman is close enough to Moses to be actionable (they both got put into a craft and set adrift as infants, forcing them to grow up in strange lands under strange names, where they eventually revealed themselves and did great things) seems silly, but maybe that's just the way it's supposed to work.
posted by COBRA! at 1:04 PM on November 3, 2005

For the sake of being comprehensive, I should note that the third requirement is that the application be "useful." This is an extremely low hurdle to cross. Abstract ideas or completely odd ideas can still be patented. When I clerked at a firm called Haynes and Boone way back when, we had a contest with a bunch of elementary kids to make invention and we patented the winning invention. One year, a girl won and we patented a specific process of using a bicycle's wheel rotations to churn ice cream. Thus, she had invented and now has a patent on a specific bicycle ice cream machine.
posted by dios at 1:04 PM on November 3, 2005

dios : "During the process, prior art is looked at and examined to see if the idea that you are proposing is a novel and non-obvious. "

To be really accurate, it would best be said that "during the process, the patent office is required to look at prior art..." The fact of the matter is that prior art is increasingly frequently ignored, so it's a little misleading to say it "is" looked at. Most of the time, sure, but it's certainly not guaranteed.
posted by Bugbread at 1:05 PM on November 3, 2005

COBRA! the court wouldn't be deciding if Superman and Moses are close together. Those are both part of the public domain and can't be patented.

To get a patent, you would have to come with a specific plot that is novel and non-obvious. I think this specific idea of patenting a plot will fail on the non-obvious part. It would be easy to make something novel; not so easy to make it non-obvious. That is, changing Batman into Owlman (billionaire playboy by day; crime fighting tortured soul in a fancy outfit and the owlmobile by night) would fail the non-obviousness test because it is just a simple change that would be obvious as a riff.

Always remember: filing an application for a patent is the easy part! The hard part is proving it and getting one to issue.
posted by dios at 1:12 PM on November 3, 2005

What's more, people can always challenge your patent later. If you happen to sneak one by the patent office, someone can challenge your patent and say "this patent should fail because it was obvious based on this play of Aristophanes" and then you might lose your patent if it was in fact the same plot with only minor obvious changes.
posted by dios at 1:14 PM on November 3, 2005

Thankfully, I scanned down to the bottom, and it has a treatment of a possible example of the plot, which indicates that I was interpreting the meaning of the patent generally correctly:

A preferred embodiment of the present plot invention will now be described...The protagonist...applies to MIT. [A] few weeks before the expected arrival of his admissions decision letter, he tells [his girlfriend] how he simply can't wait any longer, that his anticipation has consumed his every thought. That night, he convinces himself that he wants to leap over the time until the admissions letter arrives--that he doesn't want to experience anything else until it arrives--that he just wants to go to sleep and not wake up until it does. He falls asleep.

[0029] Next (such as in the next scene in the movie), a mail carrier knocks on a door on a house in an upper-class neighborhood. The setting is preferably now, or about 20 to 40 years after the initial setting. The man who answers the door is middle-aged. The mail carrier hands him a letter, saying something to the effect of, "Sincere apologies, sir. It looks like we've had this letter in our possession for a few decades . . . it dropped underneath a table and we didn't find it until yesterday."...

yadayadayada. So, no, it's not a patent on "plots", it's a patent on "a plot".
posted by Bugbread at 1:14 PM on November 3, 2005

You can patent game mechanics (cf. Garfield's patent on MtG).
posted by Heywood Mogroot at 1:17 PM on November 3, 2005

China, India and Brazil are well on their way making the USPTO irrelevant.

The USPTO is also certainly doing it's part.
posted by sfenders at 1:18 PM on November 3, 2005

dios: I'd say that this case is certainly interesting, since it could eventually lead to at least a partial reversal of the State Street Bank decision. Surely, you should be aware that the idea that "everything under the sun that is made by man" is patentable, and the doing away with the requirement of technical character are, to say the least, debatable and in fact quite controversial, even among patent attorneys. Indeed, the US is quite alone in the world in having dumped the technical character requirement.
I'm not an especialist in US patent law, but I'm less than certain that a plot can be considered to be a "useful process, machine, manufacture, or composition of matter", as patentable subject-matter is defined in 35 U.S.C. § 101.
posted by Skeptic at 1:18 PM on November 3, 2005

COBRA! the court wouldn't be deciding if Superman and Moses are close together. Those are both part of the public domain and can't be patented.

Well, yeah. I guess I meant to imply talking about Superman's first appearance, assuming that either this law existed in 1939 or said first appearance was today. That's the problem with examples... Anyway, thanks.
posted by COBRA! at 1:18 PM on November 3, 2005

The first (or fourth, or whatever) star wars is mostly based off of hidden fortress, by Akira Kurosawa. Prior art! Prior!

And dios, dont you think more innovation would be lost as small artists didn't produce anything because of crippling legal costs?
posted by lowest.common.denominator at 1:20 PM on November 3, 2005

Also, I would like to patent the word "dios" when used as a means of communicating the concept of a person who has some extremely unorthodox and rather crazy views about patent law, yet presents them as if they made sense.
posted by sfenders at 1:21 PM on November 3, 2005

The first (or fourth, or whatever) star wars is mostly based off of hidden fortress, by Akira Kurosawa. Prior art! Prior!

Having seen both, I've never gotten this: Lucas certainly took some inspiration from The Hidden Fortress (the award ceremony being perhaps the clearest "steal") but it's hardly "mostly based off" it.
posted by PinkStainlessTail at 1:23 PM on November 3, 2005

Popular Ethics: the sole purpose behind patent law is to spur invention and "foster a creative society" by issuing an incentive to create art. If I know that my idea will be ripped off by anyone, than I have no incentive to expend my time, energy and effort into creating it.

Sounds to me like you're just LAZY.
posted by delmoi at 1:25 PM on November 3, 2005

And, everybody, if you want to know what a patent actually covers, you look at the claims, dammit!

In this case:

Claim 1:

A process of relaying a story having a timeline and a unique plot involving characters, comprising:

indicating a character's desire at a first time in said timeline for at least one of the following:

a) to remain asleep or unconscious until a particular event occurs; and

b) to forget or be substantially unable to recall substantially all events during the time period from said first time until a particular event occurs;

indicating said character's substantial inability at a time after said occurrence of said particular event to recall substantially all events during the time period from said first time to said occurrence of said particular event; and

indicating that during said time period said character was an active participant in a plurality of events.

Interesting wording of the claim, BTW: what they want patented is not "a plot", but the "process of relaying" that plot. It will be interesting to see how this will work out (probably will be rejected for lack of novelty anyway: this sounds quite a lot like the plot of "Memento", doesn't it?)
posted by Skeptic at 1:25 PM on November 3, 2005

Popular Ethics: the sole purpose behind patent law is to spur invention and "foster a creative society" by issuing an incentive to create art. If I know that my idea will be ripped off by anyone, than I have no incentive to expend my time, energy and effort into creating it.

What the fuck?! Did you sleep through your IP course at law school? You're describing copyright, which the protection of the expression of an idea in a fixed medium (ie, art). Patent law was devised to provide an incentive for inventors to describe their inventions, by granting them a time-limited monopoly on that invention so long as they described how the invention works.

on preview:
COBRA! the court wouldn't be deciding if Superman and Moses are close together. Those are both part of the public domain and can't be patented.
Christ. dios, try copying and selling the original Superman comic book (or strip, etc.) and see how long it takes for the C&D to arrive.

Always remember: filing an application for a patent is the easy part! The hard part is proving it and getting one to issue paying for the lawyers to fight it out because the USPTO decides it's better to let the courts figure out concepts like "useful", "novelty", and "prior art".
posted by MikeKD at 1:25 PM on November 3, 2005

COBRA! : "I guess I meant to imply talking about Superman's first appearance, assuming that either this law existed in 1939 or said first appearance was today. That's the problem with examples... Anyway, thanks."

Well, the law existing wouldn't really be the issue. A patent on Moses's story would be the issue, and (presumably) would have to be patented by one of the inventors. That is, it would have to have been patented some 3,000 years ago. And I'm fairly certain that, even at that time, there was some preexisting prior art that would prevent the patent application from passing. So, if applied correctly, the concept of patenting plots wouldn't be much, if any, strain on creativity, because it would be the patenting of plot ideas that no-one has thought of in known history. The issue, of course, is that it would be exceedingly foolish to believe that the patent office would apply the concept correctly/fairly, or exercise due diligence in seeking out examples of prior art.
posted by Bugbread at 1:27 PM on November 3, 2005

And, yeah, dios, I'm no lawyer, but a whole lot of the stuff you're saying about patents sounds more like description of copyright to me.
posted by Bugbread at 1:29 PM on November 3, 2005

hmmm, I take back some of the invectiveness, but just some. (It's annoying enough with regular people get trademark, copyright, patents, et al. mixed up--more so when a lawyer does).
posted by MikeKD at 1:30 PM on November 3, 2005

I like Don Lancaster's take on patents.
posted by Floydd at 1:32 PM on November 3, 2005

MikeKD: Patent law was devised to provide an incentive for inventors to describe their inventions

Patent law was conceived to motivate inventors to both invent and disclose.

The USPTO decides it's better to let the courts figure out concepts like "useful", "novelty", and "prior art".

The USPTO, like any patent office, is bound by the decisions of the courts. It doesn't "decide" to let the the courts figure out those concepts. It has no choice but to do it.
posted by Skeptic at 1:32 PM on November 3, 2005

Wasn't there a site somewhere that listed (supposedly) "all" of the standard plots of literature? I tried to find it but couldn't. It was all in genericized form, of course. And the list was relatively short, a dozen or two items.
posted by beth at 1:32 PM on November 3, 2005

Also, patents expire pretty quickly, especialy compared to copyright laws.

But yeah, I think that if plots could be patented, it would quickly lead to the strangulation of all art, as almost all stories are derivatives of each other. Much more so then, say, Selective serotonin reuptake inhibitors.
posted by delmoi at 1:33 PM on November 3, 2005

MikeKD, patent law and copyright law are both designed to foster creativity. Patent law has disregarded the "technological arts" concept and rightfully so, since only the novelty, obviousness, and usefulness requirements are the bedrock hurdles. That is, patented things do not need to be inventions in the sense you are arguing. A copyright is over a specific thing fixed in an intangible medium of express. The patent in this case is for protection over a process of constructing plots to include specific devices. In that regard, though it may seem akin to copyright law, it is a different beast.

dios, try copying and selling the original Superman comic book (or strip, etc.) and see how long it takes for the C&D to arrive.

Did I say you can do that? NO. I didn't. I said you couldn't patent it because it was an idea out in the public and it would therefore fail the novelty and non-obvious requirements.

Mike, you really need to lay the vitriol. You are being a complete shouting asshole for no reason.
posted by dios at 1:35 PM on November 3, 2005

hmmm, I take back some of the invectiveness, but just some. (It's annoying enough with regular people get trademark, copyright, patents, et al. mixed up--more so when a lawyer does).
posted by MikeKD at 3:30 PM CST on November 3

Fair enough. But I think you are awfully persumptuous to suggest I am getting them mixed up. If you know IP law that well, then you are well aware of the blurred line between copyright laws and patent laws. The blurring of the laws is being opposed by some, but that is usually the "information must be free" and software people. But the line is blurred as a matter of legal fact, so you really ought not be so quick to suggest I don't know the difference when I can very well explain the difference to you.
posted by dios at 1:37 PM on November 3, 2005

it would be exceedingly foolish to believe that the patent office would apply the concept correctly/fairly, or exercise due diligence in seeking out examples of prior art

This is especially true considering that the patent examiners work under a quota system, and have to have a certain number of cases resolved within a certain amount of time. Even if they were the most diligent, honest people on earth, being under such time pressure makes it impossible to really achieve due diligence. This is a systemic problem of the system as a whole, and only gets worse as technology advances and innovations proliferate.
posted by beth at 1:38 PM on November 3, 2005

dios: Patent law has disregarded the "technological arts" concept and rightfully so, since only the novelty, obviousness, and usefulness requirements are the bedrock hurdles.

Ah, US patent law has done it, not patent law anywhere else (yet). Whether it was a rightful (never mind reasonable) decision is also quite arguable...
posted by Skeptic at 1:38 PM on November 3, 2005

Superman... part of the public domain

Boy, is DC gonna be bummed when they hear about this!

No, of course Superman is not in the public domain. Under current law, Superman will not be public domain until 2033. That is a matter of copyright law, having nothing to do with patents.
posted by jlub at 1:39 PM on November 3, 2005

MikeKD, patent law and copyright law are both designed to foster creativity.

Doesn't seem to be working.
posted by PinkStainlessTail at 1:39 PM on November 3, 2005

Here is one article on the blurring of patent law.
posted by dios at 1:40 PM on November 3, 2005

delmoi : "But yeah, I think that if plots could be patented, it would quickly lead to the strangulation of all art, as almost all stories are derivatives of each other."

But, see, there's the rub: if they're all truly derivative of eachother, they couldn't be patented, due to prior art. So either they're all derivative, in which case the patent couldn't be passed, or they aren't derivative, in which case the patent wouldn't do much damage.

Again, though, I'm not arguing in favor of patenting plots, because A) the inventors of plots certainly don't appear to have lacked incentive throughout history, and B) I trust the patent office about as far as I could throw it, with a bonus of C) even if the patent office did well, it would just serve as another weapon for lawyers of large entertainment companies to use against people without the funds for lawyer herds. It's like all of the bad, with none of the good.
posted by Bugbread at 1:40 PM on November 3, 2005

jlub, I wasn't using "public domain" in that sense. I was using in the sense that it wasn't novel. So I used the technical word from copyright to characterize a patent concept that something existed in the prior art. I apologize since so many of you like to be exacting over every word I write.
posted by dios at 1:43 PM on November 3, 2005

dios, c'mon, you know that there are certain words you can play fast-n-loose with, and certain that you can't, and that they vary based on the topic of discussion. You can call a peanut a nut in a discussion about favorite foods, but not in a discussion about agricultural specifications. "Public domain", "prior art", "copyright", "patent", "claim", "novel", "derivative", and the like are probably best used very accurately in a discussion such as this. People would have gotten all over that statement about Superman, no matter who said it.
posted by Bugbread at 1:47 PM on November 3, 2005

I could imagine, if this became mainstream, studios and production companies setting up massive patent farms consisting of teams of lawyers and screenwriters, generating as many permutations on as many plots as possible. As soon as any movie comes to the theaters: boom! Patent infringement suit.

A single patent is expensive, but with a dedicated department of in-house lawyers, the marginal cost of each additional patent would be relatively small. If a studio could generate enough plot patents, they'd have the opportunity to choke off all of their competitors.

What a wonderful world that would be!
posted by mr_roboto at 1:49 PM on November 3, 2005

Ah, US patent law has done it, not patent law anywhere else (yet). Whether it was a rightful (never mind reasonable) decision is also quite arguable...
posted by Skeptic at 3:38 PM CST on November 3

I'm sorry for not being clear that I referring to US law. As a general rule, I only speak about US law. I am unfortunately provincial like that. The US system is on a different trajectory, and one that I support. The philosophic basis for patent and copyright law is being preserved by that trajectory, and it is in direct conflict with the hostility to the US's trajectory which seems to come most often from internet-y freeware-y types who always speak about "free information" and the like.
posted by dios at 1:50 PM on November 3, 2005

That's true bugbread. And I freely admit the misuse. The problem is that I never know to what extent readers know words like "prior art" and whether such use is lost on them. And I do admit to a degree of annoyance because my words are so often nitpicked in bad faith; that is why I think the Superman comment would have been glossed over if someone else would have written it. But you are right, I should be as precise as possible.
posted by dios at 1:52 PM on November 3, 2005

But, see, there's the rub: if they're all truly derivative of eachother, they couldn't be patented, due to prior art. So either they're all derivative, in which case the patent couldn't be passed, or they aren't derivative, in which case the patent wouldn't do much damage.

Sure sure, but who's going to spend thousands and thousands of dollars fighting whatever patents they need to in order to publish their stories/films/whatever. Weither a patent is valid or not is not something that can be determined without a major court battle.
posted by delmoi at 1:59 PM on November 3, 2005

the "information must be free" and software people.

That's "information wants to be free", you doofus. But seriously. You're actually aware of all the arguments against software patents, and you still think it would actually be a good idea to have patents on plot devices in fiction?

If I invent a new joke, can I patent it as a novel technique for making people laugh? Would I have to get opinions from a professional comedian as to whether it was obvious? If I invent a new dance move, can I patent it as a new way to attract the opposite sex in nightclubs? If I invent a new style of visual art, can I patent that? Well, I don't see why not!
posted by sfenders at 2:00 PM on November 3, 2005

Dios,

My advice to you, with technical terminology like that, is that (when it comes to IP), about half the people in any discussion will have a fairly decent understanding of the terms, and half won't. Knowing your propensity to make statements that people strongly disagree with, and the propensity of some folks to nit-pick you, and the propensity of people who use these terms correctly to get annoyed at those who use them incorrectly, I'd recommend: Use the terms accurately. Some people will misinterpret what they mean. Wait a while for someone else to correct them, because someone inevitably will. The desire of folks in IP discussions to correct people who confuse "trademark" and "copyright" is greater than their desire to pick on you, and if a third party is the person making the correction, it will become less of a 2 man feud and more of a group discussion.

That's custom tailored advice, too, free o' charge. Just my opinion, of course, and I could be off-base.
posted by Bugbread at 2:01 PM on November 3, 2005

delmoi : "Sure sure, but who's going to spend thousands and thousands of dollars fighting whatever patents they need to in order to publish their stories/films/whatever. Weither a patent is valid or not is not something that can be determined without a major court battle."

Well, you're ignoring the whole second part of my post, where I explain why I'm opposed to the whole patenting plots issue, where I point out that I don't think it's necessary, and that I don't trust the USPO to correctly decide which patent applications to accept and which to fail.
posted by Bugbread at 2:04 PM on November 3, 2005

Dios:The philosophic basis for patent and copyright law is being preserved by that trajectory, and it is in direct conflict with the hostility to the US's trajectory which seems to come most often from internet-y freeware-y types who always speak about "free information" and the like.

I know quite a lot of definitely non-freewary types, including many patent attorneys, who can only shake their heads at the trajectory of the US system. The technical requirement was at the heart of the patent system everywhere until the '80s. Plots weren't considered patentable, and neither were business methods.

Now, one can argue whether expanding the scope of the patent system to non-technological developments is good or bad. The trouble is, this was a decision that should have been for the legislators to take, after a clear and open, public debate. Instead, it has been taken by what you'd otherwise call "activist judges"...

I find such developments quite dangerous for the patent system, because they could trigger a public backlash against it, as already happened in the past (in the US about one century ago, for instance).
posted by Skeptic at 2:11 PM on November 3, 2005

dios : "it is in direct conflict with the hostility to the US's trajectory which seems to come most often from internet-y freeware-y types who always speak about 'free information' and the like."

Perhaps the most vocal and strident hostility comes from the free information crowd, but that's because they're the most diametrically opposed. I don't think it would be wise to assume that the most vocal proponents of something are necessarily the most numerous, nor representative of everyone who opposes said thing. Most everyone I know who knows anything about patents and copyright is opposed to the recent trends in them, but they're not clogging up forums ranting like slashdotters, so they aren't as noticeable.
posted by Bugbread at 2:19 PM on November 3, 2005

Good point bugbread.

And Skeptic, I don't myself practice in patent law (I do health care law), but I do know some IP lawyers and read articles when they pop up in various journals. As such, I can't really debate you on the point whether it is a widely opposed or supported move. I certainly don't presume to be an expert on patent law and don't really have a vested interest in its expansion. That being said, I do understand and agree with the philosophic basis for patent and copyright law, and I am a firm supporter of property rights. Knowing the statute as written and the Constitutional and philosophic basis for the laws, I don't see the current tragectory to be inconsistent with the law, and in the instance, the patenting of "a process" seems entirely in the purview of s101, which leaves only the hurdles of s102 and s103---which I said above would be the stumbling blocks. I certainly don't agree that patents should be handed out willy-nilly. I am just of the opinion that a process patent could reasonably include a plot, in my opinion.
posted by dios at 2:31 PM on November 3, 2005

dios : "That being said, I do understand and agree with the philosophic basis for patent and copyright law, and I am a firm supporter of property rights."

I wasn't sure whether to say this, or if it would just be excess verbiage, but I'll go ahead, just in case: Within the folks that are annoyed at copyright/patent law trends are a lot of folks who understand and agree with the philosophic basis for patent and copyright law, but just don't agree with the extensiveness and timewise extensions that are being granted. I myself agree that copyright is a good thing, but I can't see how the Mickey Mouse extension did more benefit than harm to society.

You might have already guessed that that was one of the not-so-loud positions that I was describing above, but I just wanted to point it out, just in case.
posted by Bugbread at 2:38 PM on November 3, 2005

dios: the sole purpose behind patent law is to spur invention and "foster a creative society" by issuing an incentive to create art.

There's the problem with ex post facto justifications of intellectual property laws, though, which is that they quite often tend to have been enacted for the interests of owners, who tend not to be the original authors.

If you look at the world's first copyright legislation, the Act for the Encouragement of Learning passed in England in 1710, for instance, you'll find that the original bill was sponsored and brought to parliament by booksellers, to protect their rights-in-copy against piracy. It had nothing to do with creators of art (although the rhetoric of the act tried to insinuate that it did).

Not only that, but you can also legitimately ask whether the current emphasis on complete originality is at all useful for artistic creation. Traditionally, of course, art is created by a process of imitation -- the composting of prior sources, traditions and influences into something new, but not radically new. There's good reason to think that the Romantic idea of the lone, inspired genius that IP law perpetuates both misrepresents the artistic process and hinders artistic expression by seeming to set the bar for art impossibly high for most mere humans.

Hell, even the 'Romantics' themselves borrowed liberally from the classics; the cod-Romantic idea of genius creating art and literature ex nihilo is mostly just some kind of Coleridgean myth.
posted by Sonny Jim at 2:55 PM on November 3, 2005

I am just of the opinion that a process patent could reasonably include a plot, in my opinion.

By that logic, such a wide definition of "process" would also necessarily include telling a joke, yes? If not, why not? If so, how can it possibly be "reasonable" to patent such a thing?
posted by sfenders at 2:59 PM on November 3, 2005

Man, that sounds like a stupid story. First off, if he's asleep/unconcious, he should be in a hospital until the letter from MIT arrives. Second, where's the action in that? That's a short story at most, it's done the moment the secret is revealed.

Continue with your legal arguments.
posted by Hildegarde at 3:10 PM on November 3, 2005

Excellent points, Sonny Jim.

As to the sfender's question about process, let me try it like this. A joke should be copyrighted, not patented. On the assumption one can come up with a novel and non-obvious way to make people laugh, I don't see why that shouldn't be patentable. So, for instance, I could see patenting "The Aristocrats: a process whereby a person tells about a performing family, then free form says the most disgusting things in the world, then ends with 'The Aristocrats!'". That joke is a process and can't really be copyrighted since every variation wouldn't be fixed in an intangible medium of expression. So perhaps you should be able to patent it. As to whether that is reasonable, I don't see why not. If the process of telling a joke like the Aristocrats would be something you developed over time and put forth creative effort, then people shouldn't be able to riff of you.

So, if you come up with a new joke, such as:
"Why haven't we sent any women to the moon? Because it doesn't need any cleaning."

Copyright the joke. Yes, I know that isn't a new joke.

But if you came with a process of telling a joke that was novel and nonobvious based on prior art.... if you could do that, and it would be extremely hard to do....then I don't see why analytically you shouldn't be afforded the same protection. Say you had some joke/way to make people laugh wherein you ask people what their favorite thing to eat is, and when they tell you, you sneeze it out of their nose and say something funny about them eating it; that would be different every time. Since the joke wouldn't be fixed, you couldn't copyright it. But the value of the protection is the same.

It is hard to talk in such generality regarding whether you should be able to patent a __. My answer is likely to be, if it isn't something that can be copyrighted, but you have invented something that you can prove to be novel and nonobvious, then I don't see why shouldn't be affored the very protection that such laws are intended to provide to those people who create.
posted by dios at 3:20 PM on November 3, 2005

Hildegarde, the section of the story quoted above is only the first two paragraphs.

Paragraph 29 goes on to describe how the man was not physically asleep but rather has just now realized that he has no memory of the past 20 or 10 or however many years. (Like, from alcohol, blacking out -- not unconscious).

He then goes to a psychologist who explains the pseudo-science behind the plot device and in Paragraph 34 looks out the window at business men and asks who among them is truly awake.

In paragraph 36 the psychologist refers the protagonist to a scientist and I only skimmed after that point but it involves "downloading memories" or somesuch. And the scientist is lying about a procedure. So the scientist is not a good man and the procedure may render our protagonist braindead or somesuch. Paragraph 38 finally offers some possible endings. Maybe he goes to MIT after all. Blech.

Now, if this patent is granted, have I just violated it?
posted by nobody at 3:25 PM on November 3, 2005

copyrights last longer
posted by caddis at 3:29 PM on November 3, 2005

So I am still confused as to why-- since copywriting already exists and lasts longer-- one would need to patent a plot?

And where are the lines drawn and who decides if a patented plot has been used by someone else? Is changing the sex of the protagonist enough of a change? What about a different ending? And what about a life story? Can you patent someone else's life story?

It would seem like this would create far more problems then solutions. First problem would be searching the patents to see if your plot was new or if you are infringing on someone else's plot line. I mean,are we asking every writer to read every plot line registered before he tries to write his screenplay?

And the arguments...Oy Vey! Can you imagine the clogging of the courts? "Your honor I ask you, my client's screenplay is set in the 70's-- not the 80's and his main character is an English teacher, not a music teacher. And his wife is murdered-- she doesn't commit suicide. This is so obviously not the same plot line."

but just don't agree with the extensiveness and timewise extensions that are being granted. I myself agree that copyright is a good thing, but I can't see how the Mickey Mouse extension did more benefit than harm to society.

Charles Goodyear's story is an interesting one. He spent 10 years trying to figure out how to make rubber useful and accidentally came up with vulcanization. He patented the process and the market was flooded with items stamped "Goodyear." Unfortunately he seldom got all the royalties owed and those he did receive he plowed back into research. He died owing thousands of dollars and when the family tried to extend the patent they were turned down; manufacturers claimed he had made enough money already. So many things were stamped "Goodyear" that everyone assumed he made tens of millions. Many years later the tire company appropriated the name and the family never made a dime.
posted by Secret Life of Gravy at 3:30 PM on November 3, 2005

why-- since copywriting already exists and lasts longer-- one would need to patent a plot?

just to stir up some trouble
posted by caddis at 3:49 PM on November 3, 2005

As to whether that is reasonable, I don't see why not. If the process of telling a joke like the Aristocrats would be something you developed over time and put forth creative effort, then people shouldn't be able to riff of you.

Well, okay then. I just couldn't believe you were really calling that "reasonable". Thanks for clarifying. There are many such jokes that are sufficiently novel in structure so as to be non-copyrightable. Or, for that matter, riffs, or chord progressions, or styles of visual representation, or novel written linguistic structures that serve to convey a distinct impression, or whatever.

such as
maybe the guy
who invented writing
like this, should go ahead
and patent it. Because as far
as I can tell, given its surprising-to-me
popularity as a form for posting stuff in web
forums, it serves a social purpose at least as useful
as that of 'The Aristocrats'.

Really, you are talking about the complete destruction of art, music, literature, and stand-up comedy as we know them. "Reasonable", sure.
posted by sfenders at 4:03 PM on November 3, 2005

sfenders : "Really, you are talking about the complete destruction of art, music, literature, and stand-up comedy as we know them."

I'm not sure on which basis you're saying this.

If it's that they're all built on using the same patterns, these wouldn't be patentable, due to prior art. And if they're not built on the same patterns, then patenting one wouldn't hurt the others.

If you mean that the overhead involved in making sure your new idea isn't accidentally the same as a previously patented idea, or the overhead in defending your own work from frivolous claims by companies with the bankbooks to throw money at lawyer goonsquads, then, yeah, I understand and agree.
posted by Bugbread at 4:19 PM on November 3, 2005

The story still sounds lame, sorry. Still a short story to me. If the bulk of the story happens while someone is "asleep" there's very little of interest left to happen afterwards. You could do a chapter or two of him contemplating "who among us are truly awake, now that we have invented this new definition of asleep", but it's a one trick pony.

And there are already obvious plot holes...if he convinced himself to sleep until the letter arrived, how would he magically launched himself into some new psychological state? Too much of a stretch, I think. And why would that moment of desire have more psychological impact than, say, a month later when he realizes no letter is going to come, and he has some come up with another plan for his life? Lame, too many obvious elements the author hopes you'll disregard for the sake of the COOL PLOT IDEA, blah blah.

On thinking about it, it might have work better if he had asked someone to keep him asleep until the letter came, because then you could blame willful following-the-letter-of-the-request rather than stupid psychology trick. But then again, he'd still be in a hopsital or something, not out leading his life which he can then convieniently forget about for the purposes of the plot. Total Recall did it better. Butterfly Effect did it better. I'm not even going to mention Memento, because it's in a class this plot trick doesn't even see let alone reach.

And I'm sorry to say it's lame, because I love memory tricks. But you gotta have something better than that.

Back to your regularly scheduled legal banter.
posted by Hildegarde at 4:22 PM on November 3, 2005

If it's that they're all built on using the same patterns, these wouldn't be patentable, due to prior art. And if they're not built on the same patterns, then patenting one wouldn't hurt the others.

The great majority of art of all kinds is based on patterns that previously exist. But once in a while, someone invents new ones. Sometimes, as in the development of jazz, a whole bunch of new ones get invented all at once. They spread rapidly, they mutate, they evolve. If someone had taken the basic ideas of bebop and patented them... well, that would have put an end to the careers of many a jazz musician. Being free to "riff off of" the ideas of others is basically what music is all about, as it's currently and has probably always been done.

I'm slightly less confident that this kind of patent law would utterly destroy comedy, art, and literature, just because I know somewhat less about them than I do about music. But it seems pretty likely.
posted by sfenders at 4:42 PM on November 3, 2005

PinkStainlessTail, it is if you see luke skywalker as the retired general, the way lucas (apparently) originally envisioned him in the script/notes he had when he went to pitch the movie. I think he then split the generals' character into two halves - luke and obi wan konobi, but thats just speculation.

So the similarity is Princess, captured by evil warlord, rescued by small group of outlaws including two stupid serfs/droids for comic relief and an old retired/deposed samurai of the government before the current one, hide in their secret base.

Forgive me, I cant remember what happens next in Hidden Fortress, so I dont know if the similarities continue, but I would say 4 (luke, leia and the droids) of the main characters and the central plot being heavily inspired by it would count, no?

Also, wikipedia has a little piece on it, so it must be true!
posted by lowest.common.denominator at 4:34 AM on November 4, 2005

That makes sense, sfenders.
posted by Bugbread at 4:55 AM on November 4, 2005

So I am still confused as to why-- since copywriting already exists and lasts longer-- one would need to patent a plot?

Because copyright protects a specific expression of an idea, and not the more general concept. If I write a story in which five children enter a walk-in closet and find a portal to the magical land of Rainan, where a cruel warlock has cast a spell that makes it always autumn and never Halloween, and the children try to find the great panda Lasna who will save the country, etc., etc., the estate of C.S. Lewis might have a hard time prosecuting me for copyright infringement. But with a sufficiently broad patent--well, in this case they still couldn't do anything, since patents last only twenty years and it would have long since expired, but if I had done it while the hypothetical patent was still in force, they might well have a case. Not saying it's good or bad, just explaining why one might want a patent on a plot in addition to a copyright on the story itself.

And that's not just a thought experiment, either--consider the case of Nosferatu. The filmmakers wanted to make a movie out of Dracula, but Bram Stoker's widow wouldn't permit it. So they just changed the characters' names and made the movie anyway. Stoker's widow sued, but it was settled out of court, so I guess that's not really conclusive one way or the other. But they might have had a decent chance of getting away with it if they had changed a few more details while still retaining the same basic plot.

"Your honor I ask you, my client's screenplay is set in the 70's-- not the 80's and his main character is an English teacher, not a music teacher. And his wife is murdered-- she doesn't commit suicide. This is so obviously not the same plot line."

Well, no, that's one of the things that's fairly easily settled with patents. If the patent claims "a story set in the 1970s with a music teacher as the protagonist having a wife who commits suicide," then the judge yawns and says, "yes, you're right, your story is different than what is claimed in the patent and you are not infringing." OTOH, if the patent claims "a story set between the 1940s and the 1990s with a teacher as the protagonist having a wife who dies through nonnatural means," then the judge yawns and says, "nope, sorry, your story infringes on what's claimed by the patent." (The danger of claiming the broader plot, of course, is that there's more likely to be prior art out there which would invalidate the patent.)

The story still sounds lame, sorry.... Back to your regularly scheduled legal banter.

No, actually I think the lameness of the plot is closely related to the legal issues. All the good plots are taken already--he couldn't patent a good plot (unless it was specified very narrowly) without running into some prior art.

I guess my feeling is that allowing patents on plots would overall be a bad thing, and would stifle creativity to some extent, but it wouldn't be the Death of Literature As We Know It, like some here are claiming.
posted by DevilsAdvocate at 7:47 AM on November 4, 2005

"he couldn't patent a good plot (unless it was specified very narrowly) without running into some prior art. "

Well yeah. Patents on specific plot elements like this are relatively harmless compared to the wider implications of interpreting patent law in the most obvious way that would allow them.

But still, it would be pretty stupid. Any time some new technological, philosophical, or social novelty comes along, you'd have people rushing to patent the idea of writing stories about it.
posted by sfenders at 8:48 AM on November 4, 2005

Any artist would despise this idea as anyone with any amount of sense realizes that they stand on the shoulders of others and that in the future, others will stand on their shoulders.

We can speak about how specific the patent or future patents might be, but the danger and concern with patents these days is how wide a berth they can be given in interpretation.

Someone mentioned The Hidden Fortress and Star Wars. There are clear similarities, right down to characteristics, but each movie is, nonetheless, distinct. Similarities in art and literature (and music) are inevitable. The characters that assist the Kurosawa character are very much like C-3PO and R2D2. The Kurosawa character storms the enemy encampment, much in the same manner as Han Solo. And of course the Princess bit, which is as generic as it can get.

Of course, there's Kurosawa's Yojimbo, of which much of Fistfull of Dollars is based on. Still, they are both great films (whereas Star Wars pales in comparison to The Hidden Fortress and is, in general, an insult to the cinema anyway.) A relatively recent Bruce Willis film also uses the same plot.

Shakespeare often used plots that had been created by others, except he did it better than most.

In each case, proper and sensible copyright provisions are entirely sufficient. Patenting plots is extremely dangerous.
posted by juiceCake at 7:40 AM on November 5, 2005