Comments: Musings on IP - one good way for DRM and one bad way?

In a way, patenting a plot line might be preferable to copyrighting it, since patents still have a finite lifetime. But it's still a Bad Idea. So, I'm afraid, is your idea of perpetual license for a copyrighted creation (unless you're leaving unspoken that the copyright will eventually expire).

Spider Robinson framed what I call the Essential Copyright Refutation in Melancholy Elephants (

Posted by Roy at November 5, 2005 02:21 PM

I got the post from ...

It was posted by Robert Michaelson to the Chemical Sources Information List

Posted by darren at November 5, 2005 04:36 PM

Roy, Just to clarify that point, my idea does not change the nature of copyright, so while a licence might be perpetual, the copyright expires as and when it would normally.

Posted by Iang at November 6, 2005 06:12 AM

In the story I read it was a provisional-patent application, not a granted patent. Thankfully.

Posted by Darius Bacon at November 6, 2005 08:02 PM

Good point - correction made.

Posted by Iang at November 7, 2005 03:24 AM

Patents in almost any new area will face quality problems -- they will tend to be vague and claim a lot of prior art. Patent examiners are trained to look almost exclusively at previous patents for prior art, but these don't exist in new areas such as fiction plots. Furthermore, patent examiners are required to be trained in some traditional area of patenting like mechanical engineering, but being trained in a new area such as business methods or literature or, until very recently, a computer science degree did not qualify you as a patent examiner. As a result examiners have no particular expertise to bring to examining patents in new areas.

Here, I strongly suspect that dastardly deeds done while sleepwalking has been done before, but not being an afficianado of such literature I can't readily prove it, nor as a literary naif do I know of any already existing "motivation" for the idea, so as an examiner I'd have to allow the patent as novel and non-obvious.

What's more, it's not clear that traditional patent criteria such as novelty, non-obviousness, and enablement even make sense for non-technological "inventions." What does it mean to enable a person skilled in fiction to successfully write this kind of plot? What does it mean for a plot, assuming it is novel, to be "non-obvious?" Who knows? Not anybody at the patent office. We could debate forever whether patent law makes sense in these areas but the only way to actually find out is through trial and error, where the cost of error to people in the target industry may be very high.

In the U.S. patents in new areas have traditionally been struck down under the "subject matter" restriction in the Patent Act. A fictional plot or bar of music would have been considered until very recently an "abstract idea" and thus unpatentable.

Just last month the Supreme Court accepted a case that deals with the subject matter issue. This could have big implications for software and business method patents as well as more adventurous patents like this one in previously unpatentable areas. See also my paper on how software came to be patented in the U.S. despite "mathematical algorithms" being an unpatentable category.

Here's an analysis of the upcoming Supreme Court case:

Here's my paper on the origin of software patents in the U.S.:

Posted by Nick Szabo at November 8, 2005 05:04 PM
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