Be the Story

You are the stories you write.

Tim King

Storyline Patents

MP3

Storyline patents: They’re real; they’re here; and they’re horrifying.

On the “I Should Be Writing” Forums, dustrider posted a link to an eMediaWire article on storyline patents.

Patents are not like copyrights, which cover the artistic work. Patents cover the ideas and can be used by deep-pocketed patent holders to attack independent artists and publishers. As a result, storyline patents both unnecessary and dangerous for creativity.

First a disclaimer: I am not a lawyer. Nothing here should be taken as legal advice. If you have a legal question, please consult a qualified attourney.

Patents are not like copyrights. Two people can independently create very similar works, and each is copyrighted by its author. Another person can only infringe the copyright if he actually copies the copyrighted work, not if he independently comes up with a similar work. But patents are more exclusive. Only one person can hold a patent on an idea. If someone else independently comes up with the same idea, the patent holder can sue for patent infringement, even if the other person had no knowledge of the patent and didn’t “copy” the idea.

In order to get a patent, your idea must be useful, nonobvious, and never before done. If the idea has been used before, we say there’s “prior art.” If the Patent and Trademark Office issues a patent and if the patent holder sues someone for patent infringement, that someone can prove that there was prior art and invalidate the patent. But in practice, lawsuits are messy and expensive and can be used by deep-pocketed companies to bully smaller ones, even if the patent is invalid.

The U.S. PTO issued an actual storyline patent to Andrew Knight of Knight & Associates, who has the site www.plotpatents.com. Because of the way patents work, writers and small publishers need to be aware of what stories are patented, so that we don’t accidentally infringe someone’s story patent and get sued. If you think this is reasonable, read the abstract of the above patent. If that doesn’t mortify you, try reading and understanding the entire patent.

News of this patent seems to have gotten more attention in the technical press than in writer’s circles:

Storyline patents are conceptually much like software patents and will cause all the same problems, but on a much larger scale:

From WikiPedia: John Carmack of id Software said, “The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.”

Prophetically, Carmack found himself kicked by the patent system, when it turned out a programming technique he had used– Creative Labs had a patent on it. Creative used their patent to force id Software to delay releasing Doom3, until it supported Creative’s products, or else they’d sue id. Of course, now we all know that Carmack himself actually invented the technique claimed by the patent, and id probably would have won, if they had been able to afford a lawsuit.

But patents are unnecessary to protect stories. Good ideas for stories are multitudinous and plentiful. As any experienced writer knows, good ideas are easy to come by. The hard part is turning those ideas into creative work that’s worth something. This last part is what copyright protects. Storyline patents cover something that doesn’t need to be protected. In fact, they attack creativity.

You see, crappy writers are not threatened, because their work won’t sell. Storyline patents threaten the beginning writers and independent publishers who create good stuff. If a big company feels threatened by a creative upstart, or if it just sees a settlement check, it can dig through its massive patent portfolio and find a half-dozen that seem to be infringed by the small company. If these turn out to be bogus, it can go back and find 6 or 7 more. It can keep this up for as long as you can stand out, because it has the deep pockets and the big guns. This scenario is not just a scare tactic; it has actually happened in the world of software patents: See this article on Forbes.com.

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6 responses to “Storyline Patents”

  1. Mike Avatar
    Mike

    I recently saw a movie called “Mysterious Skin”. One of the 2 main characters has something happen to him as a child, blocks the memory out of his consiousness, replacing it with an urban myth, in this case UFO abduction. Through flashbacks we begin to understand the “first event” along with the character who has repressed the memory. We don’t know HOW he repressed the memory, only that he did. Reading Knight’s patent I can see that the movie plot followed about 80 percent of Knight’s so-called original idea patent.

    Frightening indeed, esp. when you begin to understand how so many writers and fimmakers begin the process with a single image or dream and then drewing on their skills flesh it out until it is a story. To begin to fence off creative terrain this way is really a terrible, terrible idea. I’m sure everyone of those movies Knight cites as having patentable ideas could be shown to have borrowed from earilier plots. None of those movies seemed so much original in plot as in presentation. Several where nothing more than “it’s a dream” or “I am all the characters but didn’t know it.” This is old stuff really. I suspect a truly orignal plot would be unintellible at this point in time.

  2. TimK Avatar
    TimK

    Yes, exactly. In software development, it’s much like this, too. But we pretty much ignore it, going into whatever creative area we need to in order to get our work done. There are certain technologies, such as MPEG4 video encoding, that are well known for their patents. Most software patents though, we blissfully ignore, knowing that either (a) we’re too small for anyone to go after or (b) we’re big enough to have a patent portfolio of our own with which to strike cross-licensing deals.

    But the film and music industries’ habit of going after even individuals concerns me. Just a threat in most cases is enough to chill expression. Couple with this the fact that patents are new to us, and it’s even scarier. We understand copyrights, derivative works, fair use, and so forth. We know as a community when we’ve crossed the line and infringed, or when we should stand our ground. But patents are confusing. How do you know what a patent claims? How do you know what prior art applies?

    Remember too that software development is relatively young. Stories, on the other hand, have been around for as long as there been humans to tell them. Many more stories have already been told than software that has already been created, which means a much thicker morass of prior art and much more confusion.

    -TimK

  3. Mike Avatar
    Mike

    True. Story and plot elements have been circulating since the Assyrians, Greek drama, aboriginal creation myths, and on and on. Italo Calvino wrote an entire book of first chapters, any one of which could have been fleshed out and made into a novel. It’s like trying to patent the pattern of roots or the exact shape of a cloud. It’s silly.

  4. Harold J. Johnson Avatar
    Harold J. Johnson

    More than silly; this is doggone frightening as hell. Any numbers of books might never have appeared had such a law existed in years past. Examples: “Lord of the Rings” is based on a large variety of past stories; as is “Chronicles of Narnia”; as is “Harry Potter”; as is just about any mystery novel; as is just about any space-based sci-fi novel or film; as is…

  5. TimK Avatar
    TimK

    Yeah. Or else the authors would’ve told those stories anyhow and gotten sued.

    -TimK

  6. Paula Berinstein Avatar
    Paula Berinstein

    It’ll never happen.

    Paula

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