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Is virtually anything patentable, as case law suggests? That’s a crucial question facing the U.S. Patent and Trademark Office as it considers an author’s request to patent a fictional story line. The U.S. Patent and Trademark Office recently published the first-ever “story-line patent” application, which was filed by Canon, Ga., patent agent Andrew Knight. He wants to protect a fictional story line he created called “The Zombie Stare.” The story is about an ambitious high school senior who prays one night to remain unconscious until he gets his college admissions letter. His prayer is answered. He sleeps for 30 years. He then wakes up to discover that he has lived a normal life and wants his memories back. Patentworthy? Knight thinks so. “Plot stealing clearly occurs,” said Knight, who believes making story lines patentable will give unknown authors a big boost. “Someone who is not a fantastic or well-known writer is going to have a difficult time getting their idea into the public domain and being rewarded for it because there’s always the threat of story lines being stolen. “I say, grant story-line innovators the 20-year patent term in order to incite them to create new forms of entertainment and bring them to the public,” said Knight, who received a J.D. from Georgetown University Law Center this year. “And after 20 years, that plot belongs to the public forevermore.” Knight, also a rocket engine inventor, noted that his patent application will have to meet two key patent law requirements: the utility requirement, which addresses whether an invention falls within statutory subject matter; and novelty and nonobviousness, which address whether the invention is identical, or similar, to previous inventions. WHY NOT GO THE COPYRIGHT ROUTE? “Because copyright protection is extremely narrow,” said Knight, who believes a story-line patent would offer far broader protection. For example, he said, a patent would protect potentially thousands of different possible expressions of an underlying story line, where a copyright would protect only one particular embodiment or expression of a story line. The courts have already established that virtually anything is potentially patentable. So, given the broad scope of patentable matter, novel story lines may fall within the utility requirement, said Charles Berman, co-chairman of Greenberg Traurig’s patent prosecution practice from the firm’s Los Angeles office. Berman said the real issue is nonobviousness, which probably presents the biggest challenge to patentablity because minor variations on a central theme may generate so many different story lines. Patent expert Robert Bell, a former patent examiner, said that while Knight presents a “nice argument,” he doesn’t believe it’s going to fly. “I doubt that the patent office is going to go along with this,” said Bell, a solo practitioner from Aurora, N.Y., who believes that giving patents to movie plots and story ideas “opens up a can of worms. “I don’t think writing or coming up with an idea for a story line can be patentable. Can you imagine trying to litigate these things?” he said. “If you start patenting ideas or concepts, we’ve gone down a bad road.” BOUNDARIES NEEDED? Bell strongly suggests that the courts revisit the issue of what is and isn’t patentable, arguing that some boundaries need to be set. “They basically said everything under the sun is patentable, and now they have to revisit this and say, ‘Well, what are the outer boundaries of patentability?’ Otherwise this opens up Pandora’s box,” Bell said. And with regard to story lines, Bell believes that not many original story lines are out there anyway, claiming that everything is a recycling of something else. For example, he said, it’s been noted that Hollywood really only has five to 10 story lines. “So even if you got the patent office to go along with this, how are you going to pass the novelty standards because almost everything that’s written is recycled from something else?” Bell said. But that philosophy implies that all creative thought is virtually dead, said Knight, who believes that there are many more story lines that are yet unheard and that deserve protection. “Story lines will never die,” Knight said. “Stories will be told until the human race dies out.”

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