I have seen several posts (here, here, and also here) that discuss a recent patent infringement lawsuit filed late November to the DC District Court. Bloggers find this infringement action quite unusual, and I agree on that. The case of Global Findability v. Summit Entertainment (original complaint available here) concerns a movie called “Knowing” starring Nicolas Cage as a genius MIT professor who decodes series of numbers delivered from divine sources. Decoding these numbers provides information about future catastrophic events, including their exact geophysical location and even the number of victims.
In the movie, Cage apparently applies a certain method to decode the information embodied in the numbers, which, among other things, should reveal the precise location of the next disaster. Plaintiff Global Findability happens to have a registered U.S. Patent NO. 7,107,286 for “Integrated Information Processing System for Geospatial Media”. As I understand it, this patent covers a method of representing geophysical location by encoding coordinates (longitude, latitude and altitude) in so-called “all natural” numbers (i.e., no fractions or complex mathematical expressions, simply digits of 0 to 9).
Plaintiff alleges that the defendants who created a movie, in which the actor (Cage) encrypts the strings of numbers, infringe on its patent for “making, using, importing, offering for sale, and/or selling in the United States, without authority, the Film that embodies the invention claimed”.
The judge, if not throwing this suit on procedural grounds, would have to address some tough questions. One of them concerns the subject matter issue, namely, whether a coding method of this sort is at all patentable. As Dennis Crouch observed, the decision on the patentability of methods not associated with or applied by a “machine” might be influenced by the pending Bilski v. Kappos decision the Supreme Court is expected to deliver soon.
Further, where is the infringement here? The complaint is unclear on how exactly making and distributing the movie can violate patent rights. How should a movie, in which - as part of the plot - the actor applies a method that turns out to be patented, violate patent rights in the method?
These questions are complex, but I do not think that a detailed legal analysis is necessary in order to show why this action, from a policy perspective, is absurd. The reason is the perverse impact plaintiff’s theory might have on another branch of IP, namely, copyright law.
Both patent and copyright laws have underpinning in the Constitution under the so-called “Intellectual Property Clause” (Art. 1, Sec. 8 of the Constitution). Patents and copyrights are two separate areas of IP that secure protection for two distinguishable types of intangible subject matter, but having one underlying constitutional purpose: “To promote the progress of science and useful arts”.
Congress took upon itself to fulfill the constitutional promise by enacting two major laws that cover patents and copyrights. Both the Patent Act and the Copyright Act, through their respective sets of exclusive rights, seek to provide incentives to make investments in the production of intangible goods that would accelerate societal “progress” (forgive me if this sounds oversimplified - it is, but for the present purpose it should do).
What if the court accepted plaintiff’s theory that creating one type of IP (a copyrighted film), while relying on the protection and incentives system of copyright law, could violate another type of IP (patented method), and thus, can be enjoined? Were this true, one legal system of incentives (patent law) would circumvent the system of incentives established by a parallel system (copyright law).
Think about the opposite scenario for a moment: Suppose that a copyright holder challenged a patent because the patentee used copyrighted texts/illustrations without permission in the documentation prepared in the course of the patent application. (I am not aware of any actual litigation of this sort. Any tips?) Would it be reasonable to ask a court to frustrate the patentee’s expectation of exclusivity on such grounds? Would it be reasonable to expect producers of science fiction films (and perhaps also makers of other film genres) to clear patent rights in the storyline? Would it be reasonable to reject patent rights for an invention because some years ago, when it was still considered quasi “science fictional”, an author has described it in a novel (think of the Nautilus from Twenty Thousand League under the Sea by Jules Verne, who, by the way, was himself a lawyer by training). Can anyone not see a problem here with promoting “progress” if one system of IP subverted the intended effect of the other?
I am not sure if this series of rhetorical questions points in the direction of an affirmative defense against patent infringement allegations in case that the invention is merely "used" in the course of making a copyrighted work such as a book or a film. I'll have to think about it some more. Maybe it is not such a bad idea after all.
The interesting aspect of these questions however is the fact that they are not dealing with the common tension between IP exclusivity on the one hand and free use on the other hand. This scenario creates a competition between two IP systems that leads to a lose-lose situation: Virtually nobody gains from blocking copyrighted movies on patent grounds, other than lawyers, perhaps, who would now offer new packages to their producers-clients: “Pay once, and we'll clear both copyright and patent rights for your next feature film!”
Professors Dan Burk and Mark Lemley suggest in their recent book that the courts have an important role to play in correcting the anomalies and oddities of the patent system. Here’s a great place to start.