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Q&A
We’ve
included the following answers to the most typical questions that
we have received in emails.
Q. Are you serious?
A. Yes.
Q. Really?
A. Yes.
Q. This isn’t a joke?
A. No.
Q. Are you sadistic spawns of Satan?
A. No. In fact, we’re generally nice people.
Q. What are Storyline Patents?
A. A Storyline Patent, if issued, would be a U.S. utility
patent claiming a method of performing or displaying a novel
storyline.
Q. Have any Storyline Patents issued?
A. No. Andrew Knight submitted the first Storyline Patent
application to the U.S. Patent and Trademark Office in November,
2003. The Patent Office
published the application on November 3, 2005 (click
here to search the official Patent Office database of
published applications).
Q. Why did the U.S. Patent and Trademark Office publish
your patent application?
A. The Patent Office now publishes new applications
approximately 18 months after filing. Under certain
circumstances, an applicant may request that the application not
be published. Andrew Knight initially asked the Patent Office to
not publish his application, but later decided that the benefits
of publication outweighed its detriments. The application –
including the Patent Office’s progress on it – are open and
notorious, and available on the Patent Office’s
website.
Q. Do you have any Storyline Patent rights yet?
A. No. However, publication of a patent application gives
an applicant “provisional rights” in which he may obtain a
reasonable royalty from an infringer from the date that he
provided actual notice of the application to the infringer to the
date of the patent. To claim these rights, a patent must issue,
and he may only claim these rights retroactively after issuance.
In other words, if a Storyline Patent never issues, then Andrew
Knight will have no such rights.
Q. How do you get a patent?
A. A complicated question. In a nutshell, you must submit
a comprehensive (“enabling”) disclosure of your invention to the
Patent Office in the form of a patent application, in addition to
a filing fee. The application must include a set of “claims” that
clearly and distinctly point out what you desire as your
intellectual property. An Examiner in the Patent Office will then
examine the application and, in almost all cases, reject the
application for at least one of the following reasons: a) your
claimed invention is not the kind of subject matter that is
available for patenting (35 U.S.C. §101); b) your claimed
invention is not new (35 U.S.C. §102); c) your claimed invention
is an obvious combination or variation of old inventions (35 U.S.C.
§103); or d) your claimed invention is not well defined (35 U.S.C.
§112). The second and third (Sections 102 and 103) are called
“prior art” rejections because they depend on the existence of
previous inventions or “prior art.”
You must then amend the claims in the application
and/or explain to the Examiner why your claimed invention is
patentable in spite of the rejections. The Examiner may then
allow the application, or reject the claims again for various
reasons. This process may iterate several times before either an
application is allowed by the Patent Office or abandoned by the
applicant.
Q. What rights does a patent grant?
A. A patent grants the right to the patentee to exclude
others from making, using, selling, offering to sell, or importing
the claimed invention. Patent rights do not vest until issuance
of the patent, and these rights are available for a maximum of 20
years after the earliest filing date of the application. However,
because the Patent Office periodically requires maintenance fees
that get higher with the passing of time, most patentees let their
patents expire long before the 20-year limit.
Q. What are you trying to patent?
A. In this
first Storyline Patent application (click
here to search the official Patent Office database of
published applications), Andrew Knight is
attempting to patent twenty claims. The claims include: a) a
process of relaying a story, such as a method of displaying or
filming the story; and b) an information storage medium, such as a
DVD or book. As an example, the first claim reads:
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.
In other words, Andrew Knight is attempting to patent
the specific series of three steps named above.
Q. If issued, what will the patent do?
A. The patent will allow Andrew Knight to prevent others
from performing the claimed methods and making, using, selling,
offering to sell, or importing the claimed information storage
media without first obtaining a license.
Q. What are the hurdles in getting this patent?
A. As in any new patent application, Andrew Knight must
prove to the Patent Office that his claims are statutory subject
matter (Section 101 of the patent laws), new (Section 102),
nonobvious (Section 103), and definite (Section 112). In his
article in the Journal of the Patent and Trademark Office
Society, entitled “A Potentially New IP: Storyline Patents,”
Andrew Knight argued that the claims will pass muster under
Section 101.
However, realistically, Section 101 is not the chief
issue. While copyright attorneys and the lay public remain
convinced that fictional storylines are not statutory subject
matter under Section 101, experienced patent attorneys recognize
that Section 101 probably will not be much of a problem. The
Supreme Court has defined statutory subject matter to include
“anything under the sun that is made by man.” If the Federal
Circuit (the high court for patent-related cases in the U.S.)
remains bound by its own decisions, then it will likely dismiss
any Section 101 rejection.
The real issue will be novelty (Section 102) and
nonobviousness (Section 103). Is Andrew Knight’s storyline (“The
Zombie Stare”) new? If so, is it obvious in light of prior art?
Chances are good that this first application will be finally
rejected under Section 102 and/or 103.
Q. Are any plots new and nonobvious?
A. We don’t know. There are many proponents of the belief
that all plots are variations on the old and that new plots can
never be invented. There are also those who believe that
nothing is ever invented, or that societies invent as a
collective, or that inventions somehow float in the ether or fall
out of the sky. We don’t subscribe to these points of view and
suspect that new, original, unique, nonobvious storylines really
can be conceived by diligent, creative inventors. Only time will
tell for sure. For now, Andrew Knight has four pending Storyline
Patent applications, each claiming a completely different plot.
Q. What if this application is eventually rejected by the
Patent Office?
A. It probably will be, at first. If the Patent Office
rejects the application on prior art, and Andrew Knight agrees
that the prior art anticipates or renders obvious his claimed
invention, he will likely abandon the application. However, if
the only rejections are under Section 101 or 112, or if he
disagrees with the prior art rejections, then he will appeal the
Patent Office’s decision to the Board of Patent Appeals and
Interferences, then to the Federal Circuit, and finally to the
Supreme Court if necessary.
If The Zombie Stare storyline is found (either
by the Patent Office or the Federal Circuit) to be anticipated or
obvious in view of the prior art, then Andrew Knight will continue
to prosecute his remaining three Storyline Patent applications, in
hopes that at least one of them will be new and nonobvious.
Q. Aren’t you blurring copyright and patent law?
A. No. Copyright law protects the expression of an
underlying storyline, not the storyline per se. Further,
copyright law only prevents the actual copying of a
copyrighted work. In other words, if two authors should
independently write an almost identical piece, both are
protectible by copyright.
Patent law is the only available legal mechanism to
protect an underlying storyline. A patent on a method of
displaying a fictional plot, for example, will allow a patentee to
prevent a movie theater from displaying a motion picture
containing that fictional plot. A patent on a DVD containing a
motion picture having a fictional plot, for example, will allow a
patentee to prevent a retailer from selling such a DVD.
A storyline is not patentable per se. Only a definite
claim having a useful, concrete, tangible result could be
patentable. We believe that it is possible to draft claims that
satisfy these requirements.
Q. Many intelligent, authoritative lay people say this is
nonsense. Is it?
A. No. Ask an experienced patent attorney.
Q. My copyright attorney says you are blurring copyright
and patent law. Are you?
A. No. Copyright attorneys are rarely experts in patent
law. Unfortunately, because they practice one field of
intellectual property law, they often sound authoritative in the
field of patent law. (The most arrogant of them even fool
themselves.) Ask an experienced patent attorney.
Q. Why patent a storyline? Why not rely on copyright?
A. Copyright protects only expressions of underlying plots,
not the plots themselves. While copyright lasts a long time –
life of the author plus 70 years – the right is limited to
preventing others from actually copying. Plots may be stolen
freely.
Patents protect far more than copyrights, as set forth
in their claims. For example, the claims in Andrew Knight’s first
Storyline Patent application read on his specific story, The
Zombie Stare, but also on many, many different variations that
would not be covered by copyright.
Q. How much is this test case going to cost? Millions?
A. Andrew Knight is an experienced registered patent agent,
an inventor of over two dozen patented or patent-pending
inventions, and a graduate of Georgetown Law. He invented, wrote,
and submitted the Storyline Patent applications himself. With
some already-volunteered pro bono help from various experienced
patent lawyers, he plans to take the case up the chain of appeals
himself. So far, the fees to the Patent Office have been less
than $2000.
Q. Hasn’t your invention, the plot called The Zombie
Stare, been invented before?
A. We don’t know. Blogs have posted various movies, books,
and other stories that users assert are similar to The Zombie
Stare. However, most or all of these users are not patent law
savvy and do not understand that a reference must disclose every
element of a claim to anticipate that claim. For example, many
users cite the classic tale Rip Van Winkle as being “the
same” as The Zombie Stare. However, the tale does not
include an indication that “during said time period said character
was an active participant in a plurality of events,” as claimed in
claim 1 of Andrew Knight’s first Storyline Patent application.
However, if the plot of The Zombie Stare has, indeed, been
invented before, we hope to know as soon as possible.
To anticipate a claim, each and every element of the
claim must be found in the prior art reference. Each of Andrew
Knight’s patent applications contain at least 20 different claims
of varying scope. Therefore, a prior art reference that
anticipates claim 1, for example, does not necessarily anticipate
claims 2, 3, etc. Claim 1 of his first Storyline Patent
application is admitted broad, but the general practice of good
patent agents and attorneys is to draft many claims, ranging from
very broad to very narrow. While there is a good chance that
claim 1 may be found unpatentable over prior art, we don’t know
the likelihood that all the claims will be found unpatentable over
prior art.
Q. Isn’t your invention, the plot called The Zombie
Stare, an obvious variation on previous plots?
A. Again, we don’t know. We hope not, but if it is, we
hope to know as soon as possible.
Q. How do I submit prior art to the U.S. Patent and
Trademark Office?
A. There is a method for submitting prior art in a
published patent application case. We don’t know the exact
procedure because we’ve never done it. But we suspect that the
Patent Office website, itself, provides such information. If
you do, please make sure that the publications are truly relevant,
and that they haven’t already been submitted to the Patent
Office. Nobody’s interest will be served if the Examiner is
forced to wade through hundreds of books and movies; she may
accidentally gloss over the most relevant of them.
Q. If Storyline Patents are granted, could somebody patent
the plot to Romeo and Juliet?
A. No. Romeo and Juliet is part of the existing
prior art. In other words, a claim directed to any aspect
or storyline within Romeo and Juliet will be found
unpatentable under Section 102(b).
What already exists in the public domain will, in
principle, remain in the public domain. The goal of Storyline
Patents is not to remove from the public domain storylines that
already exist, but to add to them. Any plot that was published
over one year ago –and that would include every story,
Shakespeare works included – is automatically prior art under
Section 102(b).
Q. So what kinds of storylines might be patentable?
A. Essentially, only storylines that have never before
been invented. Further, they must also not be obvious in light of
existing prior art. These requirements are, in principle, high
hurdles. Every book ever published, every motion picture ever
released, every television show ever aired. All of these serve as
prior art to render a storyline claim unpatentable.
Q. Could an overly broad Storyline Patent ever issue?
A. Of course, just as overly broad patents to automobile
engines, silicon chips, pharmaceuticals, chemical products,
consumer products, etc., issue every day.
Concerns about poor patent examination permeate the
entire patent system, not just Storyline Patents. One way to fix
this would be for the Patent Office to allot more examination time
per new application to each examiner. Currently, the time
available for an examiner to examine a case from start to finish
(including prior art search, examination, correspondence with the
applicant, and issuance) is around 15 hours. Adding another five
hours to this allotment may substantially improve the quality and
robustness of issued patents. Over-breadth is a problem that
often requires litigation to solve.
Regarding Storyline Patents, we suspect that the first
several Storyline Patents, if they issue, will be so diligently
scrutinized by the Patent Office – for fear of issuing an invalid
patent – and based on so much independently submitted prior art as
to be overly narrow, not overly broad.
Q. How can we deal with thousands of years’ worth of prior
art?
A. Champions of the free market will recognize that, should
Storyline Patents be allowed and a need arise for a comprehensive
literature prior art database, some crafty entrepreneur will
create it.
Q. What is your motivation behind Storyline Patents?
A. Around ten years ago, Andrew Knight conceived of, in his
view, an interesting and compelling storyline that he intended to
convert to a complete motion picture script. He has watched the
movie in his mind’s eye dozens of times, and believes it to be an
exciting, unique, valuable storyline. However, he quickly
realized that breaking into Hollywood or New York as a new author
is a daunting and almost impossible task, even for an extremely
skilled writer. Further, even if his script caught the attention
of a producer or publisher, there was nothing to prevent them from
outright stealing the underlying storyline and having a more
well-known author write a new, noninfringing novel or script from
it. In late 2003, while working as a patent agent, he realized
that, under current binding case law, fictional storylines are not
necessarily foreclosed from patent protection. Thus, he drafted a
patent application claiming his fictional storyline, seeking to
obtain a reward on his true innovation (the fictional plot), not
just a particular expression of it (in the form of a novel or
movie script).
Q. Does Hollywood ever steal storylines from fledgling
authors?
A. Does anyone dispute this?
Q. What motivation does a publisher or producer have to
steal a valuable storyline from an unknown author?
A. Because John Grisham, Nora Roberts, Dan Brown, Stephen
King, Danielle Steel, James Patterson, Dean Koontz, and
Michael Crichton all have valuable,
commercially sellable name recognition. A good book by Stephen
King will sell many more copies than an even better book
(utilizing the same storyline) by an unknown author.
Plot stealing occurs. The
most popular, recognized authors are not necessarily the best or
more innovative authors. But they sell. So why take the time and
expense to promote a great new novel by Joe Public when Dan Brown
is at his computer, ready to pound out another bestseller based on
Joe Public’s storyline?
Q. Aren’t you just a poor fiction
writer who seeks to gain rewards on the better writing of others?
A. First, there’s no indication
that Andrew Knight is a poor fiction writer. He stopped writing
fiction in high school because his interests turned in college to
nuclear engineering. However, as a high school senior, he won
first-place in a statewide fiction writing contest that earned him
a hefty scholarship to study at the University of Tampa.
Second, if a patent issues
on this Storyline Patent application, then the storyline is likely
new and nonobvious. If a skilled writer subsequently writes a
bestselling novel based on that storyline, then the storyline is
likely valuable. (In other words, if the bestselling author
didn’t find the storyline valuable, she would not have used it.)
What standard of morality asserts that it is wrong to reward a
literary innovator who conceives of a new, nonobvious, and
valuable storyline? The innovator’s contribution was the
storyline, while the author’s contribution was the expression. In
this symbiotic relationship, the author gets her share of the
rewards, the publisher gets its share – so what about the
storyline inventor?
Q. Aren’t you just greedy capitalist pigs trying to make a
quick buck?
A. No. We already have a patent prosecution practice, and
make a living by drafting and prosecuting patent applications on a
variety of technologies, including mechanical devices, electronic
devices, software, rocket engines, and consumer products.
We are pursuing Storyline Patents because: a) we
believe they are, under current binding case law, patentable; and
b) we believe that storyline innovators contribute to the literary
world (and should be rewarded as such) independently of their
ability to write a novel or script.
An inventor of a highly efficient automobile engine
that gets 200 miles to the gallon should be rewarded for bringing
that invention to the public, even if the inventor is, himself,
incapable of building a complete, commercially valuable
automobile. His contribution was the high efficiency engine, not
a completed automobile. Analogously, an inventor of a unique,
exciting, valuable storyline should be rewarded for bringing that
invention to the public, even if the inventor is, himself,
incapable of writing a commercially valuable novel or script.
As a sidenote, Andrew Knight prosecuted patent
applications at two of the largest, most prestigious law firms in
the nation, with fat salaries to boot. He voluntarily
abandoned the private law firm life due to a life-altering
realization that life is not about money, and money does not buy
happiness. He now lives a very modest existence in rural Georgia.
Q. Are you attempting to patent a method of patenting
storylines?
A. No. We had considered it. But, after spending a great
deal of time thinking, we realized that drafting a Storyline
Patent application is fundamentally the same as drafting a patent
application claiming a silicon microprocessor. In other words,
there is just nothing new or nonobvious about the process of
drafting a Storyline Patent application.
Q. What are the benefits of Storyline Patents?
A. The benefits of Storyline Patents parallel the benefits
of a patent system as a whole. The purpose of patent law is to
benefit the public by getting new, valuable ideas in the public
domain sooner than in the absence of patent law. If we
collectively believe that offering inventors limited exclusive
rights to their respective inventions benefits the public by both
inciting would-be inventors to invent, and by getting these
inventions to the public, sooner than without such exclusive
rights, then why doesn’t this argument apply to Storyline Patents?
Remember that the matter at issue is whether new
and nonobvious storylines should be patentable, and whether
patented new and nonobvious storylines are
beneficial to the public. We agree that patenting of storylines
(or anything else) that already exist in the public domain is
detrimental.
Thus, we believe that patenting of storylines will: a)
incite would-be artistic innovators who may not have been
otherwise motivated to invent exciting new storylines; b) incite
artistic innovators to invent exciting new storylines sooner than
they otherwise would have; and c) get the most valuable of these
new plots – i.e., those that the consumer is most interested in
experiencing – to the consuming public sooner. We believe that
Storyline Patents have the potential to usher in an era of higher
quality, more stimulating entertainment. Given that today’s
television is plagued by an overabundance of “reality” shows and
today’s movies are plagued by an overabundance of expensive
choreographed explosions to mask their lack of redeeming
storylines, we see a genuine need for motivating today’s would-be
artistic innovators.
Further, as we have already discussed, storyline
innovators are not adequately protected by the current IP regime.
First, copyright protects only the expression of an underlying
storyline, not the storyline per se. Second, only very talented
authors who also enjoy name recognition are likely to enjoy the
fruits of their labors. A good book authored by James Patterson,
for example, will be far more commercially successful than an even
better book (containing the same underlying storyline) authored by
an unknown author. We believe that Storyline Patents will allow
the independent storyline innovator to, for the first time, freely
invent with the confidence that his innovation will be rewarded,
whether or not Hollywood or New York tries to steal his idea.
Armed with a patent claiming his invention, the independent
inventor will fare far better against big entertainment than with
only a copyright.
Further, a Storyline Patent will last, at most, 20
years from the earliest filing date. In the electronics industry,
20 years is eternity. A technology will be born, live, and die
long before the patent expires. In sharp contrast, 20 years in
the literary world is but a blink of an eye. If Storyline Patents
are approved, a patentee can collect a reasonable royalty on a
patented storyline used by, say, Stephen King within that 20-year
period, to reward the patentee for creating a new and nonobvious
plot so valuable that Stephen King would desire to use it.
However, after that 20-year period, the plot belongs to general
public forever. And, unlike silicon microchips that are obsolete
in a couple of years, fictional storylines never become obsolete.
Q. What are the detriments of Storyline Patents?
A. Again, the detriments of Storyline Patents parallel the
detriments of the entire patent system.
For example, one problem with the patent system is
that poorly examined and overly broad issued patents cost
defendants $millions in litigation to invalidate. We have
discussed this problem, and note that more time allotted to Patent
Office examiners to perform prior art searches in each case may
help ameliorate this problem. Can overly broad Storyline Patents
issue? Yes, but the problem has nothing to do with Storyline
Patents per se.
Another problem cited by critics is that of “patent
trolls”: companies that patent, patent, patent – without doing
much research, development, and commercialization – and then sue,
sue, sue. This problem is related to the problem of poor
examination and overly broad patent issuing. A patent troll will
get, say, 20 patents on a technology. Maybe four or five of these
include exceptionally (i.e., invalidly) broad claims. The troll
then sends these patents, along with threatening letters full of
intimidating legal arguments and “patentese,” to various
infringers. The infringers, in an attempt to avoid an average $4
- $5 million patent litigation suit, settle out of court for a
$million or two. Can overly broad Storyline Patents arm
“literary” patent trolls with dangerous ammunition? Yes, but
again the problem has nothing to do with Storyline Patents per se.
Another detriment to patents is that, often, they do
not protect the inventor. Most researchers have agreements with
their employers to assign all patent rights in their respective
inventions to their employers. Thus, should a researcher at
Nissan invent a highly efficient automobile engine getting 200
miles to the gallon, chances are good that the researcher will get
a small bonus and a hearty handshake, but most of the reward will
be taken by Nissan. One argument against this theory is that part
of the researcher’s compensation reflected the likelihood of him
conceiving of such a valuable invention. In any event, while the
same problem may arise with Storyline Patents, the problem has
nothing to do with Storyline Patents per se.
Another detriment to patents is the “winner-take-all”
system. The U.S. has a first-to-invent system, while almost every
other country has a first-to-file system. However, both systems
suffer the problem. Specifically, an inventor who invents, say,
the cure for cancer on January 1, 2006, and diligently files a
patent application, will receive a patent, while another inventor
who independently invents the same cure on January 2, 2006, will
receive nothing. All spoils go to the first to invent (or the
first to file in other countries). This doesn’t seem very fair,
but it’s how the patent system has worked since its inception.
Similarly, one who invents a new and nonobvious storyline, and who
diligently files a patent application and subsequently receives a
patent, can prevent others from making, using, selling, offering
to sell, or importing the claimed invention, while an inventor who
independently invents the same storyline after the first inventor
will receive no such rights. Again, the winner-take-all problem
is manifest in the entire patent system, and has nothing to do
with Storyline Patents per se.
One clear detriment to Storyline Patents is that
motion picture manufacturers and major publishers will need to add
Storyline Patents to their To-Do list. They’ll have to – rather,
want to – start actively seeking patent protection on any in-house
plots that might be patentable. They’ll need to do infringement
searches before publishing novels or releasing motion pictures, to
see if they’ll need a license from any patent owners. They’ll be
liable to patent owners for infringement, and may be called on
occasion to defend themselves in a patent infringement
litigation. While this is a detriment to the entertainment
industry, we’re not sure it’s a detriment to the public.
Q. Will Storyline Patents quench creativity?
A. We doubt it. First of all, authors themselves are
unlikely to be deterred by the existence of any Storyline
Patents. Consider an analogy. A toy designer named Bob designs
an interesting new toy, based on various pre-existing toys. He
does not claim to have invented a new toy, just to have
redesigned an existing toy in a particularly creative way,
perhaps in a copyrightable way. His goal is to approach several
toy manufacturers in hopes to sell the toy design and collect a
small royalty on sales of the newly designed toy by the
manufacturer. As he was designing the toy, was he concerned about
existing patents on the toy? Probably not. No sane patent holder
would sue Bob for making or using the toy while he designed it.
Bob just sits happily in his workshop and designs the patented
toy, expressing himself in his creative design, without a care in
the world – i.e., patents are the last thing on his mind.
The patent holder might, however, become interested if
and when the manufacturer began selling the newly designed toy,
and would seek royalties from the manufacturer. In other words,
in the current patent regime, independent designers are rarely if
ever concerned with patents on the technologies they design. The
issues involved with patents (e.g., infringement searches,
licensing, royalties, and litigation) are universally left to the
manufacturers or distributors – i.e., big business.
Analogously, if Storyline Patents are allowed, authors
would likely continue creating without fear of (or even concern
for) the patents. The major publishers and motion picture
manufacturers would be the entities responsible for doing
infringement searches, licensing, and so forth.
Further, Storyline Patents are likely to stimulate
creativity, in two ways: a) by inciting particularly inventive
authors to conceive of new plots and by offering patent protection
on new and nonobvious plots; and b) by providing to the less
innovative literary world a variety of new plots in the forms of
published patent applications and patents.
Q. Will Storyline Patents burden authors?
A. For the reasons just given, we don’t think so. We
expect that authors will not concern themselves with what is and
what is not patented, and will leave the patent issues to their
publishers and producers.
Q. Won’t Storyline Patents kill the small publisher or
independent movie producer?
A. Have consumer products patents killed all small consumer
products manufacturers or distributors?
Q. Why should fictional storylines be patentable? Isn’t it
much easier to invent a storyline than a patentable rocket engine?
A.
Luckily, Andrew Knight can answer this question from his
own experience. A rocket engine inventor and a storyline
inventor, he notes that the invention process is the same in both
cases. Both require thinking a great deal about the problems to
be solved. An approach is tried, but upon further reflection it
fails. Another approach is tried, until it too fails. Finally,
the proverbial light bulb illuminates, and an approach is found
that successfully solves the problem. The total effort necessary
to conceive of his
patented rocket engine (click
here to search the official Patent Office database of issued
patents) was on the same order as that necessary
to conceive of his storyline, The Zombie Stare. Both are
inventions, and as such should be patentable subject to the
requirements of novelty, nonobviousness, and definiteness.
Q. Who will pay the price of Storyline Patents?
A. We suspect Hollywood and New York City publishers –
i.e., the entertainment industry. For the first time, they will
be required to pay independent authors and artistic innovators for
the storylines that they “borrow.”
Q. Is the American patent system broken?
A. Lots of people despise software patents, business method
patents, and patents on living things. However, U.S. patent law
as a whole is robust, relatively clear, and, to a large extent,
emulated by other nations. If you don’t like particular kinds of
patents, then ask your representative in Congress to revisit the
issue. However, Congress – i.e., your elected representatives –
doesn’t appear to consider the U.S. patent system broken.
Software and business method patents were approved by the Federal
Circuit over six years ago, but no act of Congress has since
changed the law.
Q. What next? Patenting air? Love? The alphabet?
A. More unfounded concerns of the lay public. To be
patentable, the matter must be “made by man” and must be new and
nonobvious (in addition to lots of other requirements that
your patent attorney can tell you about). Air and love don’t
satisfy the former, and the alphabet doesn’t satisfy the latter.
Q. Why can’t we just do it like they do in Europe?
A. Ask your representatives in Congress to make us more
like Europe. Whether Storyline Patents will be approved is not up
to us – it will be up to the Federal Circuit and/or Congress, if
Congress chooses to act.
Property rights are valued highly in the United
States, where low income tax rates (relative to most of Europe)
indicate Americans’ insistence on keeping the property they
produce. Owning property implies the right to exclude others from
one’s property, and thus to exact a fee or rent from others who
would use one’s property. We find that property rights result in
more efficient use of resources, and thus result in a generally
higher standard of living than in those socialist or communist
countries in which property rights are flimsy or nonexistent.
Storyline Patents, if granted, would be a new form of property
rights, protectible by their owners. We hope, of course, that
such property rights will increase efficiency and improve the
general welfare of the U.S. by providing better entertainment.
Q. What do I do to oppose Storyline Patents?
A. If fictional storylines are found to be patentable, it’s
not because of Andrew Knight. Rather, the patentability of
fictional storylines will be due to the intention of Congress (in
combination with the Supreme Court’s interpretation of Congress’
intention) to include as patentable subject matter “anything under
the sun that is made by man.” In other words, if you oppose
Storyline Patents (or business method patents or software patents
or any other kind of patents), you need to contact your
representatives in Congress. They have the power to reduce or
expand the scope of patent law to their liking.
Q. How can I prevent Andrew Knight from pursuing Storyline
Patents?
A. You can’t. Only three events will stop Andrew Knight’s
pursuit of Storyline Patents: a) invalidating prior art on all
four pending Storyline Patent applications; b) a negative ruling
by the Federal Circuit (or Supreme Court, if they take certiorari)
regarding statutory subject matter or indefiniteness; or c) an act
of Congress.
In the meantime, rest assured that Knight and
Associates will not go bankrupt, because its only investment has
been time, effort, and about $2000 in patent fees. Further,
Andrew Knight will not be discouraged by invalidating prior art,
because he desires to know as soon as possible which claims are
unpatentable before taking the time and effort to appeal his
Storyline Patent applications to the Federal Circuit. Finally,
profanity, epithets, and emotionally charged but poor reasoning
will not impact his pursuit, in spite of various emailers’
apparent beliefs
to the contrary.
Q. Why can’t you just get a “real” job?
A. We can. Indeed, we already draft and prosecute patent
applications for clients in a variety of fields, such as consumer
products. We just happen to find that creating new fields of
intellectual property law breaks up the tedium a bit.
On a more serious level, this question is invariably
asked of anyone who begins a new enterprise and thinks outside the
box. No doubt Edison heard it more than once in his life.
Q. Can I ask more questions?
A. Yes. Replies cannot be guaranteed, but respectful,
reflective, and well-reasoned comments and questions are happily
welcomed.
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