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Moviemakers could sleepwalk into patent infringement if the US Patent Office grants an application that it published yesterday for a “storyline patent.” It is a groundbreaking attempt to protect a fictional storyline with a patent, rather than relying on copyright protection.

Andrew Knight, a rocket engine inventor and registered patent agent, filed the test application in November 2003, the first of its kind, arguing that fictional plots are patentable under the US system.

Knight's story, The Zombie Stare, tells of an ambitious high school kid, consumed by the anticipation of college admission. He prays one night to remain unconscious until he gets the good news from MIT. The letter arrives - 30 years later, due to a postal error - and he wakes up. He soon discovers that, to all external observers, he has lived a normal life. Thus he endeavours to regain 30 years’ worth of memories, lost as an unconscious, philosophical zombie.

His Patent Office application is drafted more widely than this synopsis, to protect his rights, should they be granted, against a range of potential Hollywood adaptations. According to the abstract of his 14-page application:

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.

Knight has confirmed that he will assert publication-based provisional patent rights against anyone whose activities may fall within the scope of these published claims, including all major motion picture manufacturers and distributors, book publishers and distributors, television studios and broadcasters, and movie theatres.

Until now, rights in plot lines have been governed by copyright, which can cover the expression of an idea. But there can be many different expressions of the same sort of idea, which is why many stories, films and plays have the same underlying themes, expressed in varying styles and methods.

Patents, however, give exclusive rights to an underlying idea. They may be granted to anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof”, provided that certain conditions are met.

These conditions relate to utility, novelty and non-obviousness.

Knight suggests on his website that the plots of several films - including Memento, Eternal Sunshine of the Spotless Mind, Being John Malkovich, Fight Club, The Matrix, The Truman Show, Minority Report, The Village and Groundhog Day - may have been eligible for patent protection. But presumably he doesn't see anything in the memory loss genre as prior art that could damage his own prospects of winning a monopoly right.

He points to a November, 2004 article in the Journal of the Patent and Trademark Office Society, A Potentially New IP: Storyline Patents to support his case. He says that the article argued that binding case law strongly suggests that methods of performing and displaying fictional plots, whether found in motion pictures, novels, television shows, or commercials, are statutory subject matter, like computer software and business methods.

Regarding the utility requirement, he quotes the advice of Jay Thomas, Professor of Law at Georgetown University:

“The case law of the Court of Appeals for the Federal Circuit has established that virtually any subject matter is potentially patentable,” explained Thomas.

He also quotes Charles Berman, Co-Chair of the Patent Prosecution Practice at Greenberg Traurig LLP: “Due to the broad scope of patentable subject matter, novel storylines may fall within the [utility requirement].”

Berman concluded that non-obviousness probably presents the biggest challenge to patentability: minor variations on a central theme may generate many different storylines.

Nevertheless, Knight asserts that his claimed storyline meets all statutory requirements, including non-obviousness.

According to Knight, the US Patent Office will publish subsequent storyline patent applications, also invented by Knight, on 17 November and 8 and 22 December.

Copyright © 2005, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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