Scrivener's Error

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Scrivener's Error	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.

05 November 2005

21:10 [GMT-6]

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.¹

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.

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.

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.

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Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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