Literary Patents

originally posted June 2005–May 2007 (ongoing)

• Time Is of the Essence
• Patent Nonsense: U.S. Pat. App. 20050244804
• Update: KSR Requires Rejection
• Notes

Time Is of the Essence

There's a fascinating, if deeply misleading, article comparing patent and copyright protection in today's Guardian. The article appears to have been inspired by two things: The upcoming vote on software patents in the EU, and abject ignorance of how patents work by politicians. Neither is particularly surprising; virtually no politician has first-hand familiarity with intellectual property, as so few of them even write their own speeches anymore.

The first clue that the article has little relationship to reality is its author: Richard Stallman. (The second clue, ironically enough, is the copyright notice at the bottom of the article.) Stallman is and always has been an interesting thinker; he is not now, and has not been for a long time, immersed in a very close relationship to anything outside his increasingly rarified personal experience. And that, in turn, demonstrates the most-serious problem with Stallman's article. At one point, he says:

Other aspects of Les Misérables could also have fallen foul of patents. For instance, there could have been a patent on a fictionalised portrayal of the Battle of Waterloo, or a patent on using Parisian slang in fiction. Two more lawsuits. In fact, there is no limit to the number of different patents that might have been applicable for suing the author of a work like Les Misérables. All the patent holders would claim they deserved a reward for the literary progress that their patented ideas represented—but these obstacles would not promote progress in literature. They would only obstruct it. However, a very broad patent could have made all these issues irrelevant. Imagine patents with broad claims, like these:

Communication process structured with narration that continues through many pages.

A narration structure sometimes resembling a fugue or improvisation.

Intrigue articulated around the confrontation of specific characters, each in turn setting traps for the others.

Who would the patent holders have been? They could have been other novelists, perhaps Dumas or Balzac, who had written such novels—but not necessarily. It isn't necessary to write a programme to patent a software idea, so if our hypothetical literary patents follow the real patent system, these patent holders would not have had to write novels, or stories, or anything—except patent applications.¹

(fake paragraphing removed for clarity) What's missing from this passage? Most obviously, any sense of time. Not once in the entire diatribe does Stallman note the differing terms of protection accorded patents and copyrights. Use of specific historical events as grounds for "a fictionalised portrayal" was anticipated and/or obvious to a practitioner skilled in the art of narrative storytelling by the time of Bocaccio. "Communication process structured with narration that continues through many pages," was anticipated not later than four hundred years ago—Don Quixote. Laurence Sterne (among others) anticipates the fugue-like structure some time in the 18th century… and that's just by restricting the language to English and prose; Spenser arguably anticipates this through a literary doctrine of equivalents, and one can even draw the same "teaching" from the eleventh-century Chanson de Roland, the twelfth-century Poema de mio Cid, and the thirteenth-century Amadis of Gaul. The last example—intrigue—goes back to, well, Aristophanes. And all of that assumes that the patent must have restricted to written, purportedly fictional materials.² (And ignores the decision by a British jurist to reject the Freeny patent as invalid…)

No, Stallman's article reflects considerable ignorance of the historical bases of "fictional enterprise." (Perhaps, though, the world would be a better place had Hugo's overweening claptrap never seen the light of day… and inspired a really, really bombastic musical a century and a quarter later.) It reflects even more ignorance of the clash between the way writers actually work and prior art—in all senses of that term. The real problem is not with patent protection for software per se (because at least patent protection can be disclaimed!), but with the combination of the term of patent and examination procedure. Patent law uniformly applies for a uniform period (well, except for certain highly profitable drugs, but that's a rant for another time). Patents do not cover all types of intellectual material. Given the pace of change, perhaps restricting patents that do not have a specific physical embodiment of the best method disclosed in the patent to six years (or so) from date of conception might be an appropriate compromise; I'm throwing "six years" out there primarily because the number is so distinct from everything else in IP that it won't lead to confusion (e.g., the five-year incontestability period in US trademark law).

Stallman's essay gets, at best, a C– because its examples are so divorced from reality, its structure is so obviously calculated to deceive, and it relies on a straw-man depiction that isn't even accurate. The irony that time has such little acknowledgment in this essay, when Stallman has been one of the leading critics of longer copyright terms, seems to have escaped both Stallman and the Guardian. One must suspend one's disbelief by the neck until dead to credit this kind of article… and that technique in political rhetoric goes back at least two thousand years in Western tradition, so there's no question that its patent has expired.

Patent Nonsense

Neil Gaiman wonders about a patent application filed for a "storyline patent" and published a couple of days ago. I'll follow up with some specific observations based on the actual patent application in a couple of days (I'm out of town at the moment), but I'd like to begin with a couple of general observations.

I have already discussed the general scope of "fiction patents" in a slightly different context. As I remarked in a footnote to that entry,

[L]eaving aside the requirement that patented concepts must be reduced to practice before they're eligible for patent protection. That's just another small problem with Stallman's argument: It asserts that the idea alone is the subject of patent protection, which is inaccurate both in a technical and a conceptual sense.

This is a critical failure in the Knight patent application: At least from the face of the application, he has not reduced his "idea" to practice. Without a reduction to practice—whether one is dealing with a process patent or a product patent—one cannot be sure that the "idea" works… which is precisely why perpetual motion machines are not patentable subject matter.³

A proper patent:

• Has utility,
• Is not obvious to one skilled in the relevant arts,
• Is novel and not anticipated by prior art, and
• Is not merely a law of nature or natural phenomenon.

That's just a summary statement; there are more requirements, and these requirements have been worded to deal specifically with the Knight application. In any event, the Knight application fails all four of these requirements in concept, without even looking at its particulars.

• What, precisely, is the utility of a "story structure" that has not been reduced to practice? Even if one could find such "utility," it would reside only in the particular method used—not the result achieved. This is the crucial distinction between traditional patents (which may involve processes, products, or both) and the so-called "business method" patent: the "business method" patent has utility only in a larger context. The Knight application cannot even make that claim.
• The general description of the patent undermines this. One does not judge obviousness from a reader's viewpoint (in this context), but from a writer's viewpoint… or, perhaps, a scholar's or critic's viewpoint.
• Anticipation by prior art is a somewhat complicated concept. Of course, if a prior work precisely delineates the application, the application has been anticipated. The key—and this is where the Knight application fails per se—is that anticipation can result from the congruence of several previous prior works.
• This is a philosophical question that we'll get to another time. The key question here is a simple one: What is "plot"? Unfortunately, the—or an—answer to that question is far from simple.

Thus, if you're in the midst of writing (or, indeed, have already written) a story that might conceivably infringe the patent requested in the Knight application, on general principles you don't have a lot to worry about. A more-searching examination of the Knight application will make that even more clear.

It's not just that the so-called "patent plot" fails to meet the doctrinal requirements for issues of a patent; it's that the actual application would be insufficient even if it did. We'll begin at the beginning… unlike the individual who wrote application number 20050244804. The abstract—which, to be clear, is not formally part of the patent, but is instead only supposed to help classify the patent and find similar patents—reads:

A process of relaying a story having a timeline and a unique plot involving characters comprises: indicating a character's desire at a first time in the 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 the first time until a particular event occurs; indicating the character's substantial inability at a time after the occurrence of the particular event to recall substantially all events during the time period from the first time to the occurrence of the particular event; and indicating that during the time period the character was an active participant in a plurality of events.⁴

To begin with, note the disjuncture between what the abstract says it is claiming ("a process of relaying a story") and what the abstract actually indicates it is claiming (a character in a specific context). This problem will become important later.

Now, let's take a look at the claims. The claims are the heart of a patent, just as the description of the invention itself that follows is the brain. This particular patent, though, is heartless. Please excuse the long quotation; it's necessary for the points that follow.

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.

2. A process of relaying a story as in claim 1, comprising: indicating that said particular event has occurred at a second time in said timeline at least one week after said first time; and indicating said character's substantial inability at a time after said second time to recall substantially all events during the time period from said first time to said second time.

3. A process of relaying a story as in claim 2, wherein said second time is at least one year after said first time.

4. A process of relaying a story as in claim 1, wherein said particular event is at least one of: a passing of a particular amount of time; a notification of a decision; and a relief of a pain.

5. A process of relaying a story as in claim 1, wherein said plurality of events comprises at least one of said character's wedding, a birth of a child of said character, and performance of said character's occupation for a substantial portion of said time period.

6. A process of relaying a story as in claim 1, further comprising indicating a belief held by at least three other characters that said character was conscious during said active participation in said plurality of events.

7. A process of relaying a story as in claim 1, wherein each of said steps of indicating comprises indicating in a written form.

8. A process of relaying a story as in claim 1, wherein each of said steps of indicating comprises indicating in a video form.

9. A process of relaying a story as in claim 8, wherein said process is a process of displaying a motion picture having a timeline and a unique plot, comprising: displaying a video representation of an actor acting as said character; displaying a video representation of said actor indicating at said first time in said timeline a desire for said at least one of a) and b); displaying a video representation of an indication that said particular event has occurred at a second time in said timeline; displaying a video representation of said actor indicating at a time after said second time a substantial inability to recall substantially all events during the time period from said first time to said second time; and displaying a video representation of an indication that during said time period said character was an active participant in a plurality of events.

This bit of drivel continues on through claim 20 without much greater specificity… except as it applies to the film industry.

The first, and most obvious, problem with this sequence is that the claims are not for processes, but for the result—or, rather, for something that from a sixth-grade book report might appear to be the result. In another persona, I commented on this problem some time back. The application attempts to deflect attention from this problem by calling its subject matter a "storyline," but that attempt remains insufficient. Calling something a "process" doesn't make it a "process."

The second problem with the cited sequence—and it is a problem that only gets worse farther down the chain of claims—is that the individual who drafted the patent fails to understand anything about storytelling. Compare claims 7 and 8 for a moment, and look for anything but parallel claims (if, that is, you can force yourself to read this nonsense). Note that "spoken form," "audio form," "sculptural form," "graphic form," and every other possible way of telling a story remain unclaimed. Under ordinary circumstances, this shouldn't matter much; claim 1 would cover those forms. These are not ordinary circumstances, though.

The second main segment of the application is Mr Knight's polemical attempt to apply patent law to what he calls "artistic inventions." See U.S. Pat. App. 20050244804 at desc. 0009–0015. Leaving aside for the moment that the constitutional authority for intellectual property explicitly distinguishes between "writings" and "inventions" in a way that one cannot force to overlap without substantial intellectual dishonesty, Mr Knight's argument fails because he establishes a false dichotomy.

Said another way: the value of a singer's performance or a dancer's performance or a writer's performance or an artist's performance is in the performance, while the value of an inventor's invention is in the invention, not a single instance, embodiment, expression, or performance of the invention. The value of a performance is protected by copyright; the value of an invention is not.

The problem here is the use of the term "performance." Writers are not performers under the rubric Mr Knight would establish; they are, instead, an unconsidered case between the "performance" and the "invention." Calling a book a "performance" fails at a pretty obvious level. Calling a script a "performance" does so, too. In both instances, existing law explicitly denies that the copyrighted "work" is necessarily a "performance." Compare La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995) with Pub. L. No. 105–80, § 11, 111 Stat. 1534 (Nov. 17, 1997) (codified as 17 U.S.C. § 303(b) (2004) ("The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein").

Last, and far from least, the "summary of the invention" makes clear that it has not been reduced to practice by the inventor. The application is therefore premature and must be denied on a procedural basis.⁵ Further, the frivolous nature of the application is apparent from the language in the "summary" itself. For example:

A preferred embodiment of the present plot invention will now be described. The setting is preferably some time between the present and fifty years ago, although preferably about 20 to 40 years ago, in a suburban section of the United States. Of course, these details, as well as any other detail described herein, may be altered without deviating from the scope of the present invention. The protagonist or main character is a man who, in the initial setting, is a teenage boy. He is very motivated and a diligent student, and has dreamed for many years of attending college at one particularly well-known and prestigious school, such as the Massachusetts Institute of Technology (MIT). His father is a successful lawyer who wishes him to also pursue law, but the boy observes his father's unending work schedule and high stress level, and determines to seek a different, more exciting, more rewarding path in life. During his junior or senior year of high school, he applies to MIT. He expresses to his girlfriend his explosive desire to be accepted; a few weeks before the expected arrival of his admissions decision letter, he tells her 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.

(emphasis added) And here is where the patent application fails permanently of its own weight, and cannot be revived. By changing the details, and only the details, one might succeed (at least in theory) in remaining within the bounds of "progress in science." However, that would not result in "progress in the useful arts," because art is about details. A sixth-grade-book-report level of detail—which, frankly, is greater than the level of detail described in the application—still would not suffice for a person skilled in the art of storytelling to reproduce the invention. That's the point of art: It is in the details.

The key issue—and one that I would expect a patent attorney to understand, although the Knight application betrays no understanding or acknowledgement of this—is that not everything need be in one piece of prior art. Literature is far more like alchemy than any science: Although there are a few precepts, "experimentation" proceeds by trying to mix ingredients almost at random based on irrational analysis of what those ingredients "mean." In the patent-law context, this means that one of ordinary skill in the art of storytelling inherently knows that mixing and matching ingredients from multiple contexts is part of the art. In some "relevant arts," the admixture of components or processes from different areas is not nearly so important; for example, inserting a specific pest-resistance gene into the tomato genome via a genetically engineered variant on the tobacco mosaic virus is not something that the plant geneticist of "ordinary skill" would immediately think to do.

So, then, turning to the specific claims and descriptions of the '804 application, we have a substantive (that is, consolidated from all of the formal claims) assertion of the following invention:

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.

'804 app. cl. 1. So, then, what might the prior art look like? Let's break the claim down into its different perceptual elements and translate into English.

• Character desires to remain asleep or unconscious until a particular event occurs. This, of course, depends upon what one means by "unconscious," which is not defined in the application but has many meanings. Examples of prior art include Phillip K. Dick's "We Can Remember It For You Wholesale," later made into the abysmal film Total Recall; William Gibson's Neuromancer; and more other examples from speculative fiction stretching back to the 1930s than I care to cite.
• Character desires to forget or be substantially unable to recall substantially all events during the interval. Here, the film Total Recall is a better example; remember that Quaid (the Governator) purposely set himself up as the construction worker we see earlier in the film, and can't remember anything of his life as Cohagen's chief of security.
• Character is substantially unable after the particular event to recall substantially all events during the interval. Ditto; other examples include Ursula K. Le Guin's The Lathe of Heaven, Daniel Keyes's "Flowers for Algernon," and Poul Anderson's "Call Me Joe."
• During the interval, the character was an active participant in several events. Ditto; other examples include J.K. Rowling's Harry Potter and the Chamber of Secrets.

We don't even need to rely upon combining prior-art references, even though in literature (and the rest of the arts) one would be expected to do so! Instead, one bad 1990s action/adventure/sci-fi⁷ film anticipates the claim in all particulars. Even without that instance, the other works (which just happen to be handy, not necessarily the best examples) would "teach" the claimed invention to one of ordinary skill in the art of storytelling.

The only conclusion that I can draw is that Mr Knight does not have ordinary skill in the art of storytelling. If he did, he never would have filed this application… particularly since the published application does not disclose any prior art, as is required.

So, then, storytellers, here is my reaction to Mr Knight's disingenuous and intellectually dishonest patent application:

Back to your lives, citizens. Move along. There's nothing to see here.

And no, that would not infringe any aspect of a "patent" on Toy Story.

Update: KSR Requires Rejection

Last week's Supreme Court decision in KSR just reinforces my conclusion that the "plot patent" is due to be denied.⁸ The key issue: Prior art.

KSR concerned the so-called "TSM," or "teaching, suggestion, or motivation," test that the Federal Circuit has developed over the last decade or so in an effort to define — as a matter of law — when prior art anticipates part or all of an invention.⁹ Justice Kennedy, writing for a unanimous court, put it this way:

Following these principles may be more difficult in other cases than it is here because the claimed subject matter may involve more than the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for the improvement. Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue. To facilitate review, this analysis should be made explicit. As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.

KSR Int'l Co. v. Teleflex Inc., No. 04–1350 (U.S. 30 Apr 2007), slip op. at 13–14 (internal citation omitted; emphasis added). He continued:

Helpful insights, however, need not become rigid and mandatory formulas; and when it is so applied, the TSM test is incompatible with our precedents. The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

Id. at 15.

If your eyes haven't glazed over yet, reread that second paragraph... because that is exactly what the '804 application (and its three siblings) attempts to do. As I noted in detail previously, there is a lot of prior art that contains individual elements "disclosed" in the applications, and a person of even sub-ordinary skill in the art of storytelling knows to combine elements of this nature.

The key distinction is the very nature of expressive work. Once again, we're left with the idea/expression dichotomy. Bluntly, the "plot patents" do not provide sufficient information to even a skilled practitioner to practice the invention in a marketable manner, while ironically and simultaneously asserting that the plot "is" the story, or somehow embodies the story. It's bad literary theory; it's bad writing practice; and it's bad legal analysis.

On general principles, as I explained before, the '804 application cannot stand. KSR just reinforces that conclusion.

1. Well, leaving aside the requirement that patented concepts must be reduced to practice before they're eligible for patent protection. That's just another small problem with Stallman's argument: It asserts that the idea alone is the subject of patent protection, which is inaccurate both in a technical and a conceptual sense.
2. Leaving aside the Old Testament—which, in fact, anticipates every single one of these "patents."
3. The article that Knight published is poorly researched and poorly reasoned, not to mention completely dismissive of the stated purpose (both in the statute itself and in the legislative history) of patents and the complete disjuncture from the constitutional authorization for patents. Perhaps the article is supposed to be a satirical criticism of the patent system; if so, it's a pretty abysmal one.
4. I will refrain from criticizing the poor writing (for example, the last word before the colon should be "comprising," not "comprises"). On the one hand, the poor writing implies failure to reduce the "invention" to practice. On the other hand, the poor writing typifies patent applications, and indeed legal writing in general.
5. Patent applications must be filed within one year after reduction to practice, with a few exceptions that don't apply in this instance. Interestingly, the failure to reduce the invention to practice should also bar any claims for any other forms; that is, if Mr Knight had written a story, but not produced a film, he could not claim the film as part of his invention. The key point, though, is that reduction to practice must precede the application.
6. If this paragraph sounds like an Abbott and Costello routine, it should, because knowing what's on second is critical to understanding intellectual property. The field is rife with technical uses of otherwise-ordinary English words. What is "novel" is not a "novel," and vice versa. Then, too, we refer to someone who is engaged not in writing, but in inventing, as one skilled in the relevant art, and refer to the prior art in that relevant art, in part because a patent is supposed to advance the "useful Arts".

   Far be it for me to suggest that the legal community has its own language designed to obfuscate what should be relatively simple concepts from those who most need to understand them… the inventors and creators, not the lawyers! Remember, creativity in law is a disadvantage: a legal argument ordinarily depends on proving that somebody else has said the same thing, or at least an analogous thing, before. With excrutiating specificity.

7. In the pejorative sense of the term. Ask a trufan what the difference between "sci-fi" and "science fiction" is when you've got a spare hour or so.
8. The USPTO system does not disclose a current status for either this patent or three succeeding applications filed by Mr Knight.
9. This is a bit bothersome from a civil procedure standpoint. The analogous question in copyright and trademark acts, and generally in trade secret actions — that is, whether there exists an independent, noninfringing/noninfringed source for the allegedly infringing work — is either a mixed question of law and fact or a pure question of fact. Why patents should treat this as a matter of law escapes me, at least from the standpoint of internal consistency. Admittedly, the statutes are different, and the Patent Act more strongly implies that the issue is a legal question than does the Copyright Act; that observation, however, doesn't make the logic any better.

Law and reality in publishing (seldom the same thing!) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.
 

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

All material © 2003–11 except where otherwise indicated. All rights reserved. N.B. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.

Warped Weft

Essays in Warped Weft are consolidated from Scrivener's Error with only formatting corrections (and the occasional typographical correction).

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