“Storyline Patents” Attempt to Make Patents Interesting

Attorney and gourmet chef Ben Manevitz sent this fascinating link along. The idea is finding a way to protect people who come up with creative story ideas by use of the patent system; the analogy is to business-process and, Ben points out, software patents. Yeah, the whole slippery slope thing!

In contrast to the usual patent stuff, it sure sounds like an interesting — I didn’t say good — idea in theory, but ultimately I think it’s unworkable and would cause a massive reaction in and out of the patent bar dwarfing the anger about business process patents if the PTO ever bought into it. Ben agrees. They do offer a sophisticated-looking legal analysis here.

This is really of a piece with the eternal question of protecting “ideas” that don’t fit into the traditional categories of intellectual property. In short, it’s really hard to do, and it’s not so clear that systemically we want you to be able to do it. Here’s a little explanation — solely for non-specialists — of the issues that I recently prepared in respone to a press inquiry. It’s not so on-point but it could be of use to people who don’t understand how and why some types of originality are not easy to protect legally.

“Question #2: Someone wants to know how he can protect an idea he has for improving a service from being stolen.” (Not so different from the plot idea being stolen — the analysis is quite similar.)

Answer: There are various ways to protect an idea in the abstract. Copyright protects the specific embodiment (in writing, or in a recording, etc.) of an idea, though not the idea itself. Patents protect novel ideas that can be described as inventions. People often confuse trademarks with copyrights and patents, but trademarks do not protect ideas; rather they protect the goodwill associated with a symbol, word or phrase. Trade secrets are a kind of intellectual property that is protected by keeping it secret and revealing it only in circumstances where its continued secrecy is
likely to be maintained. In all of these cases, with the exception of patents, the date when an idea was “created” is usually of little
importance, and there is little use in finding ways (such as mailing oneself a sealed envelope with a description of the idea) to prove the date of origin of your concept.

Not every good idea — even a good idea that could result in someone profiting financially from its implementation — can be protected. Entrepreneurs and venture capitalists all agree there are far more brilliant ideas than there are viable business plans, experienced management and appropriate capitalization to implement them. For example, if you had a brilliant idea about how to improve Federal Express’s service, even assuming you had an adequate understanding of how their company works for the idea to be valid (a huge assumption), you would have to demonstrate a tremendous amount of “up side” to convince this established company to consider changing the way it does business, much less to pay for the privilege of listening to a stranger opine on how they run their affairs!

Furthermore, companies that, by contrast, are in the business of considering new ideas will generally not agree in advance to limit their ability to use what they hear unless some sort of compensation or other arrangement is made. That is because they hear so many ideas, and so many of them are similar to each other, that they would be unable to conduct their affairs without being “sued left and right” by people claiming credit for new, profitable ventures and creations. Because these companies are usually the people with the investment already made, or which the would-be creator wants them to make, they are able to set the rules of the game.

Nonetheless, these are truly business concerns, not legal ones. In theory you may be able to convince a person or company that you have an idea worthy of their consideration; you may be able to get in to see the appropriate person; and they may be willing promise not to use your idea unless you are paid. In that case, the way to protect the idea is to get the other side to enter into what is called a “non-disclosure agreement,” which will set general terms for such an arrangement before you reveal your unique idea to the other side.

It is also possible that your “idea for improving a service” is actually patentable. Patents grant very strong protection to new inventions, and in some cases “inventions” can include what are called “business processes.” It is usually necessary to speak to a patent agent or patent attorney to ascertain whether your idea can be patented, separate again from the business question of whether you will, as a practical matter, be able to benefit from a patent on a service being provided by someone else.

By Ron Coleman

I write this blog.