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-fi2 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.
- 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.
- 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.