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 17th November and 8th and 22nd
December.
