Blogging Biodiversity

This one is a little off-topic for my blog (except inasmuch as I deal with the expanding scope
of intellectual property rights) but it was too good to pass up. From New Scientist, a fellow named Timothy Wace Roberts has filed a US patent application for a ‘business method protecting jokes’:

The abstract of his US patent office application 200602593306 opens: “The specification describes a method of protecting jokes by filing patent applications therefor, and gives examples of novel jokes to be thus protected. Specific jokes to be protected by the process of the invention include stories about animals playing ball games, in which alliteration is used in the punchline; a scheme for raising money for charity by providing dogs for carriage by Underground passengers; and the joke that consists in filing a patent application to protect jokes.”

We don’t know what the first jokes referred to are, but suspect the second relates to notices beside London Underground escalators saying “Dogs must be carried”. As for the third - does this mean Wace Roberts’ patent application is evidence of “prior art”, making itself invalid - or is it valid and in breach of itself? Wace Roberts attempts to resolve the problem with a further claim: “A novel type of patent application, one that claims itself, and hence is termed ‘homoproprietary’, is disclosed.”

Note: a quick search on the USPTO website reveals there’s a typo in the patent application number provided above by New Scientist, it should be application no. 20060259306. And reading the patent application, it just gets funnier and funnier. His claims include:

1. The process of protecting a novel joke which comprises filing a patent application defining the novel features of the joke.

2. The process claimed in claim 1 in which the patent application is subsequently maintained.

3. The process as claimed in claim 2 in which the patent application is prosecuted at least to official publication.

4. The process as claimed in either of claims 2 or 3 in which the patent application is prosecuted to grant or refusal.

His description explains why jokes should be patentable:

Most forms of medicine can be protected by patent applications in most countries. In the European Patent Office, for example, a new chemical compound useful as a pharmaceutical can be protected per se. Old chemical compounds can be protected for use as medicines. … As the old saying goes: “Laughter is the best medicine”. Protection should be available for this medicine also. Nor is the utility of jokes confined to the medicinal field: a number of other utilities are noted below. There is a clear need here for intellectual property protection, so as to reward those who devise effective novel jokes, and encourage the investment of time, effort and money in this pursuit.

Furthermore,

The present invention provides an answer to a long-felt need, namely that of obtaining proper protection for jokes. It is known from the prior art to file patent applications which are funny, intentionally or otherwise (it is not always easy to tell which). Examples of such applications are, in the UK, those of Arthur Pedrick (including GB 1047735, relating to a method of irrigating arid regions by supplying them by pipeline with snowballs from the Poles, and GB 1426698 entitled “Photon Push-Pull Radiation Detector For Use In Chromatically Selective Cat Flap Control And 1000 Megaton Earth-Orbital Peace-Keeping Bomb”: in the USA, U.S. Pat. No. 5,616,089 issued Apr. 1, 1997, to a method of gripping a golf putter; U.S. Pat. No. 6,368,227 for a method of swinging on a child’s swing.

[0013] However, previously patent applications have not been filed to protect jokes as such. This clearly shows the existence of a prejudice, which the present invention overcomes. The prejudice has taken several forms. It has been thought that a joke is not suitable subject-matter for a patent, for example because it is not `technical`. More specifically, it has been urged that a joke is an `aesthetic creation`. However, many things that are patented are `aesthetic creations` at least in some form. Any well-designed utilitarian object is an `aesthetic creation`, and may be protected, in that aspect, by copyright or design right (registered or unregistered). This is no bar to protecting it by patent, if it is also new and inventive. Thus, the fact that a joke is, in its finished form, an aesthetic creation need not be an absolute bar to protecting its novel principle by patent, The situation is analogous to the European patent law on plant varieties, which refuses protection for specific varieties per se, but allows patents covering classes of varieties (EPO Enlarged Board, case G2/95). Jokes can of course be protected by copyright, but copyright only protects the form in which the joke is expressed. Patent protection will offer protection for the essential features of the joke–its underlying structure.

I particularly like the reference to plant varieties although I’m not sure that the analogy is very apt. Does this mean that patents on types of jokes should be allowed but that specific jokes are unpatentable? How does one distinguish between the two?

To a certain extent, Roberts elaborates on the advisable process for obtaining a US patent on a joke:

Where the patent application to be filed according to the invention is a US patent application, or an application that will give rise to a US application, for example a PCT application designating USA, or a national application from which priority may be claimed, it is a preferred feature of the invention to establish conception of the joke prior to filing the US application. This may be done by writing down the joke, having it read and understood and signed, dated and witnessed as such by an independent witness. The witness should be a person having an average sense of humour, and sufficient wit to be able to understand the joke, but preferably not so much as to be likely to improve it. Improvements to the joke by the witness may give the status of co-inventor, thereby removing the witness’s independent status, and hence the legal value of the witness’s corroboration. Preferably the joke, having been conceived, is reduced to practice. Provided the witness to conception understands the joke, and preferably laughs, the act of witnessing the conception may constitute reduction to practice of the joke (except in the case of practical jokes, see below). If not, it may be necessary to tell the joke to an audience. However, if it is desired to protect the joke outside the USA, the audience must be under an obligation of confidence, otherwise the disclosure to the audience may deprive the joke of novelty and render it unprotectable. The invention further contemplates the exercise of diligence in reducing the joke to practice following conception, but, as noted, in most circumstances the witnessing of conception will constitute reduction to practice.

For those interested in the ‘Dogs must be carried’ joke referred to by New Scientist, above, the patent description includes a recitation of the joke.

The patent description concludes with “Note that the concept of a homoproprietary patent application is intrinsically comic … but further specific applications of the concept are not necessarily funny.”

Interestingly, I see that Roberts has filed similar patent applications in the UK and Australia. It doesn’t look as though he’s filed an application in Canada. (Addition: Roberts has filed an international application under the Patent Cooperation Treaty designating a whole bunch of states. The PCT number is PCT/IB2004/002736.)

The whole thing is obviously a joke itself, intended to point out some of the absurdities of the patent system. For those with any background in patent law, reading the stiff language of patent applications applied to such a silly subject is additionally amusing.

The only thing is, is that it’s funny because it’s true but not everyone is likely to be laughing. Another fellow by the name of Andrew Knight has a US-based law firm called Knight & Associates that is “the first patent prosecution firm to attempt to obtain utility patent protection on fictional plots.” I kid you not, this guy is trying to patent plots or storylines: “not the copyrightable expression of a unique underlying storyline, but the storyline itself—in the form of either the process necessary to implement the unique fictional plot in an entertainment medium, or in terms of the medium itself.” The patent application numbers I found on the USPTO website are 20050282140, 20050272013, 20050255437 and 20050244804. They all have the title ‘Process of relaying a story having a unique plot’.

So by all means have a good laugh at the patent application for protecting jokes but don’t laugh too hard as the truth could be stranger than the fiction.

Further thought: The last laugh could be on Knight if the Roberts application was filed first, is evidence of prior art and thus renders the subject disclosed in the storyline patent applications obvious. Hah, now that’s funny!

Posted on February 2nd, 2007 under Intellectual property •  Print This Post •  Email This Post • RSS 2.0 feed • Leave a response, or trackback