No such thing as a new idea
In case you haven’t seen, myself and patent applicant extraordinaire Tim Roberts have been trading comments on my ‘Joke’s on us’ post discussing his patent application for a business method of protecting jokes.
I had another thought on the whole patenting jokes/patenting storylines thing. If you’re a fan of Jasper Fforde, as I am, then you are likely familiar with the Thursday Next series of books and the Well of Lost Plots, “the place where all fiction is created”. In the “Well of Lost Plots” (the book, not the place), Fforde explains the history of story operating systems:
‘But,’ continued Libris, ‘to understand the problem we need a bit of history. When we first devised the BOOK system eighteen hundred years ago, we designed it mainly to record events - we never thought there would be such demand for story. By the tenth century story usage was so low that we still had enough new plots to last over a thousand years. By the time the seventeenth century arrived this had lowered to six hundred - but there was still no real cause for worry. Then, something happened that stretched the operating system to the limit.’
‘Mass literacy,’ put in Miss Havisham.
‘Exactly,’ replied Libris. ‘Demand for written stories increased exponentially during the eighteenth and nineteenth centuries. Ten years before Pamela was published in 1749 we had enough new ideas to last another four hundred years; by Dickens’ time ideas were almost wholly recycled, something we have been doing on and off since the thirteenth century to stave off the inevitable. But by 1884, to all intents and purposes, we had depleted our stock of original ideas.’
There was murmuring among the collected Jurisfiction agents.
‘Flatland,’ said Bradshaw after pausing for a moment’s reflection. ‘It was the last original idea, wasn’t it?’
‘Pretty much. The few leftover pieces were mopped up by the SF movement until the 1950s, but as far as pure ideas are concerned, 1884 was the end. We were expecting the worst - a meltdown of the whole BookWorld and a wholesale departure of readers. But that didn’t happen. Against all expectations, recycled ideas were working.’ [...]
‘The twentieth century has seen books being written and published at an unprecedented rate - even the introduction of the Procrastination1.3 and Writer’sBlock2.4 Outlander viruses couldn’t slow the authors down. Plagiarism lawsuits are rising in the Outland; authors are beginning to write the same books. The way I see it we’ve got a year - possibly eighteen months - before the well of fiction runs dry.’
He paused to let this sink in.
‘That’s why we had to go back to the drawing board and rethink the whole situation.’
He flipped the chart again and there were audible gasps. On the chart was written ‘32-plot story systems’.
‘As you know,’ he went on, ‘every Book Operating System has at its heart the basic eight-plot architecture we inherited from OralTrad. As we used to say: “No one will ever need more that eight plots.”‘
‘Nine if you count Coming of Age,’ piped up Beatrice.
‘Isn’t that Journey of Discovery?’ said Tweed.
‘What’s Macbeth, then?’ asked Benedict.
‘Bitter Rivalry/Revenge, my dear,’ answered Havisham.
‘I thought it was Temptation,’ mused Beatrice …
While Fforde’s description is fiction, I think it’s pretty fair to say that there is only a limited number of basic plots. This would seem to deny the patentability of storylines as claimed in the Knight applications but can the same be said of jokes? To a certain extent, Roberts answers this question himself in the types of jokes claimed in his patent claims:
10. A joke relating to the unexpected but partial skill of animals (preferably large mammals or birds) in sports involving spheroidal projectiles, characterised in that the punch-line employs alliteration.
11. A joke as claimed in claim 10 in which the punch line takes the form:”Whoever heard of a (large animal beginning with plosive consonant x) who could (perform sporting action beginning with plosive consonant x) !”
12. In a locus in which the behaviour of the public is subject to a promulgated rule intended to be conditional, the joke which comprises misinterpreting the rule as absolute, and providing means for enabling the public to conform to the rule so misinterpreted.
13. The joke claimed in claim 12 in which the locus is a public transport system.
14. A joke claimed in either of claims 12 or 13 in which the enabling means is provided against consideration.
15. A joke claimed in claim 14 wherein at least part of the consideration is stated to be devoted to charitable causes.
16. A joke as claimed in any of claims 12 to 15 in which the enabling means are dogs.
Furthermore, in our thread of comments, Roberts argues that the generic principle of a joke should be patentable if it’s new and even if it would result in control over an aesthetic creation (which is unpatentable.) But the ‘dogs must be carried’ joke, to which a number of claims quoted above refer, is an old joke. I think it’s even debatable as to whether his claims for filing a patent application over a joke are new because, as Roberts points out in his description, there is prior art illustrating funny patent applications.
I definitely don’t want to take the humour out of this through over-analysis - except inasmuch as a humourless discussion should mean I’m not impinging on the scope of Roberts’ application. (For another attempt at this, see IPKat.)
For now, though, I’ll have to ponder Roberts’ licensing terms for my previous, much more amusing post. 
Posted on March 24th, 2007 under Intellectual property • 
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June 17th, 2007 at 3:27 pm
Ha!
Lots of meaty stuff for discussion here. This response may seem a bit late (for which apologies), but in the patents business, almost everything takes at least three months.
Firstly, and only by the way, jokes aren’t necessarily killed by overanalysis. Some are, some aren’t. Sometimes the humour comes from the analysis, and the more detailed (or wilder) the analysis, the funnier.
Secondly, I yield to no-one in my admiration for Jasper Fforde. But I think he supports my view rather than yours. His work is full of original jokes eg “The Right to Arm Bears”).
It may be that the joke about carrying dogs on the Tube is not original with me (I’ve had an email from a chap in UK who says he told it to US colleagues a few years back - I shall disclose this to the US patent office in due course, suggesting that it’s not a printed publication, and at most an abandoned experiment). But even if so, one counter-example hardly proves that there are no original jokes.
I think you are setting the bar for originality too high - or, at least, higher than patent offices tend to. It may be, in a broad sense, that there are no new plots. But in a narrow sense, there certainly are. Are you telling me that Jurisfiction isn’t a new plot, simply because you can classify it as a form of police procedural? The same applies with inventions - and jokes (and indeed inventions of jokes). Take the joke in the first example of my patent - the cricket-playing horse who can’t bowl(known joke) improved by substitution of an animal that alliterates with the action it can’t perform. That is a very minor improvement; but something analogous might well be patentable if applied to a mechanical gadget or chemical process. Nobel-prize-winning originality is not required.
On one point I’m beginning to think you are right. Things like the patented method of operating a child’s swing, and the patent on catflaps linked to orbital bombs, are inherently funny (whether or not intended as such). These patents are directed to jokes. However, they are directed only to performing the jokes (what my patent application refers to as ‘rehearsing’ them). That being so, I may find it necessary to limit my claims to ‘reciting’ novel jokes.
Finally, I’m puzzled by the suggestion that you might avoid infringement of my claims to specific novel jokes by keeping your face straight. I say my patented jokes are objectively funny - and reciting them without laughing wouldn’t avoid infringement any more than the use of patented drugs would avoid infringement if they didn’t cure the patient.
Cheers, Tim
17 June
July 11th, 2007 at 4:55 pm
Nearly a month for me to reply to your comment - well at least I’m within the three month window!
You may be right about my standard of originality being too high compared to that used by patent offices. Whether the patent offices’ standards are too low is a whole other argument.
As someone who received much of her university education from a post-modernist perspective where there is no such thing as objective anything, I’m not sure that I can accept your patented jokes as being objectively funny. I’m sure most of my family (who are non-lawyers) would not find your claim for “1. The process of protecting a novel joke which comprises filing a patent application defining the novel features of the joke” nearly as amusing as I do.
Or am I again setting the bar too high? Are they not the average person skilled in the art against which the patent must be judged?
But that begs the question of what is the relevant art here? Humour or patent law? Or something else?
July 15th, 2007 at 1:36 pm
Ah, well, if nothing is objective, all is illusion (including the illusion that all is illusion, etc). In my view, in any system, you have to start from axioms (1+1=2, etc) and build on them. The reasonable axioms you select you take on faith, or for the sake of argument, or to get started on a path which may lead somewhere useful. Relativity (I think) leads to contradiction, from which literally anything follows logically (I understand).
We are talking law here. Lawyers have a different view of what constitutes a fact: namely, something that you can give evidence about. If you have a car accident, whether you were negligent or not is not a matter of law but of fact (I think non-lawyers would say it was a matter of opinion). Similarly, whether an invention is obvious or not is a question of fact - though the standard of what is obvious is set by the law. The invention is obvious if it would be obvious to the person of ordinary skill in the art in the light of a prior disclosure (or of two prior disclosures which are appropriately linked)and experts give evidence on what people less skilled than them would have found obvious.
Admittedly, in claiming my jokes are objectively funny, I’m pushing it a bit. But that’s my duty, on behalf of my client (me) to put his best case. A joke is objectively funny (I say) if it would be considered funny (or to have a scintilla of humour) by a person of average sense of humour who understood the background and subject-matter of the joke (so, in the case of my claim 1, perhaps excluding most of your family). One or two parameters to be clarified there, but nothing that a court shouldn’t be prepared to take a view on.
Cheers, Tim
15 July
July 31st, 2007 at 5:28 pm
[...] of above linked article) rather than patents as has been the dominant theme around here lately (see March 24th post for most recent [...]
August 14th, 2008 at 3:53 am
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August 24th, 2008 at 4:02 pm
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