Thursday, November 03, 2005

"Storyline" patent application, The Zombie Stare, to be published by the USPTO

Press release -- Further to a policy of publishing patent applications eighteen months after filing, the U.S. Patent and Trademark Office is scheduled to publish history’s first “storyline patent” application today. The publication will be based on a utility patent application filed by Andrew Knight in November, 2003, the first such application to claim a fictional storyline.

The fictitious story, which Knight dubs “The Zombie Stare,” tells of an ambitious high school senior, consumed by anticipation of college admission, who prays one night to remain unconscious until receiving his MIT admissions letter. He consciously awakes 30 years later when he finally receives the letter, lost in the mail for so many years, and discovers that, to all external observers, he has lived an apparently normal life. He desperately seeks to regain 30 years’ worth of memories lost as an unconscious philosophical zombie.

Will Knight’s claimed storyline pass the rigors of nonobviousness and issue as a U.S. Patent? If so, the stakes are high. According to Professor Thomas of Georgetown, “Given the robust scope of patent protection provided by the Patent Act… storyline patents potentially provide their owners with a significant proprietary interest.”

One notes, of course, that publishing patent applications and issuing patents, are two entirely different things. The former is basically automatic. The latter, notwithstanding comments by Quillen and Webster, is not.

The relevant application is 10/722473 filed November 28, 2003, almost two years (24 months) before the publication date of Nov. 3, 2005 for 20050244804.

The first two paragraphs of the Background section are of interest:

[0001] Hollywood has been failing. Hackneyed plots are commonplace in modern movies and creativity has been replaced by expensive "special effects." Elaborate explosions and sophisticated fight scenes bore even the slightest intellect where the storyline is confused, dull, or lacking. There is a substantial need for original, intellectually exciting plots in all forms of entertainment, such as novels and, particularly, motion pictures.

[0002] Traditionally, patent protection has provided the economic and moral impetus for technological improvements in all fields. An inventor is motivated to absorb the substantial financial, time, and personal costs of identifying problems with current technologies and inventing solutions to those problems when he is assured the right to exploit that invention by excluding others from making, using, selling, offering to sell, and importing his invention. 35 U.S.C. 271. Where patent protection is not available or is not easily obtained or enforced, such as in the typically statist welfare countries of Central and South America and communist countries such as China, technological progress is stunted by at least two causes: a) inventors employed by a company little motivation to disclose their inventions to the public, and thus tend to keep their inventions as trade secrets within the company; and b) independent inventors have virtually no motivation whatsoever to disclose their inventions to anyone, because of (justifiable) fears of appropriation.

Geeeh, let's think about Tamiflu. If drug companies could not rely on patent protection, they would NOT go to trade secrets, they would not do the research at all. Anybody could analyze the contents of the pill and copy it. They might get a break if there were impediments to making the drug, as Roche has asserted in the case of Tamiflu, but then we see certain generics asserting that they have no problem making the drug.

The patent application also mentions Ayn Rand as well as the Supreme Court case Diamond v. Chakrabarty, 447 U.S. 303, as well as the MPEP.

Of Rand:

Patents and copyrights aim to protect different interests. A copyrighted work is a particular expression or embodiment of a broader concept. For example, a broad concept might be, "Life is worth living for its own sake, and the only economic system that respects humans' right to live freely for their own happiness, without brute force compulsion to be sacrificed for the benefit of others, is capitalism." A particularly beautiful expression of this broad concept is Ayn Rand's Atlas Shrugged, which is subject to copyright protection. Ayn Rand's estate does not own all embodiments of the broad concept--only the single expression embodied by her novel.


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