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Imaginations Vs Innovation Vs Patents

31

AUG

2020

“What? A card for paying money?”

This is how people might have reacted when they were first introduced to the concept of debit card in the utopian science fiction novel “Looking Backward From 2000 to 1887” by Edward Bellamy (Though it was called as a credit card in the novel). One may be wondering if this could be considered as prior art. Of course, any published information can act as prior art, however, this information did not stop inventor James R Johnson from obtaining a patent (US 3,152,901 A) when he filed a patent application for a credit card.

If any published information can act as prior art, how did the inventor manage to get a patent granted for a credit card on 13th October 1964?

The answer is very simple. The novel only disclosed the concept of using a cardboard card, instead of cash, for payment, but it did not explain the technical details behind the payment. Any technology disclosed in a science fiction work is a result of mere imagination of the author, and not a result of a scientific research or experiment. Unless an artwork gives a substantial information of a technology, it will not be considered as prior art against a scientific invention.

Inspiring Innovation

(From the Hollywood movie MINORITY REPORT (2002))

It was a delight to watch images move, open or close on a huge transparent screen as the lead character John Anderton waves his hands over the screen, in the popular sci-fi flick Minority Report (2002) based on a short story by Philip K. Dick. It is gesture-based interface technology, but the technical details of the same were not discussed in the movie. There may be hundreds of ways to realize such screens, and academics from Bristol University have managed to find one for which they were awarded with a patent (US 9,612,658 B2). The patented system works based on a predetermined distribution of pressure patterns generated by a set of acoustic transducers, which is nowhere mentioned in the movie. Therefore, the movie may be considered as an inspiration to the invention but not as prior art to kill the novelty of the invention.

In most of the sci-fi artworks, fictious technologies would be shown only focussing on the end results rather than concentrating on the technical details of how the technologies work. Similar to the above example, in the epic sci-fi movie 2001: A Space Odyssey, one of the main characters, Dr. Heywood Floyd, makes a video call from a space station to his daughter back in the Earth, which was a far more advanced technology during that time. We could see a computer with a webcam used for making a video call and receiving a notification regarding the cost incurred for the call, but the director never tried to describe the technical details behind the video call.

Unusual Rejections

There are some cases, where the inventors were so unlucky to be denied a patent because of an artwork. Those who watched the 2006 British-American mockumentary comedy film Borat! Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (or simply Borat) cannot forget the swimsuit worn by comedian Sasha Baron Cohen. Upon release of the movie, the garment has become a big joke, except for inventor Donald R. Quinn who filed a patent application (US 12/071,878) for a scrotal support garment (shown in the figure below) at US Patent and Trademark Office. The Patent Examiner rejected the application saying that the scrotal support garment (below left) is same as the Borat swimsuit (below right) except for the length adjustment straps.

In this case, it is not a sci-fi movie neither does it disclose any technical detail about the swimsuit. However, it was sufficient to reject the patent application, because the invention relied more on the appearance and arrangements of parts rather than the functionality which is very obvious in this case.

In rarest of the rare cases, the disclosure in the artwork may be sufficient to enable a person skilled in the art to recreate a technical invention. In 1964, Danish inventor Karl Kroyer devised a method for raising a sunken ship using buoyant balls and applied for a patent in Germany, UK and Netherlands (NL 6514306). While he was successful in executing the method and obtaining a patent in Germany and UK, the Netherlands patent examiner cited an episode (The Sunken Yacht by Carl Barks) from the Donald Duck comic series to reject the patent application. The story gives substantial information on using buoyant balls to raise a sunken ship, which is same as the method evised by Karl Kroyer.

(From Donald Duck comic series episode The Sunken Yacht)

Even though patents, published patent applications and published articles are the most commonly cited documents during a prior art search, it should be understood that any form of information (including movies, novels, comics, poems, etc.) in any language or even without a language (remember the Borat swimsuit) may act as prior art, provided it discloses sufficient technical details to recreate the invention or it is obvious to create the claimed invention from the disclosure by a person skilled in the art in which its invention falls.

About the Firm

KASS International Sdn. Bhd.
Address Suite 8-13A-2, Menara Mutiara Bangsar, Jalan Liku, Off Jalan Riong, Bangsar, 59100 Kuala Lumpur, Malaysia
Tel 60-3-2284 7872
Fax 60-3-2284 1125
Email hello@kass.asia
Link www.kass.asia

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