Can a science-fiction movie infringe a tech patent?

By Eriq Gardner

Imagine if NASA sued Stanley Kubrick for "2001: A Space Odyssey" claiming dominion over space travel. Or, better yet, fancy the patent-holding inventor of virtual environments going to court to claim James Cameron's "Avatar" is a rip-off. Sound far-fetched?

Consider "Knowing," a sci-fi thriller released earlier this year starring Nicolas Cage that the Boston Globe reviewed this way: "Starts off mildly ridiculous, ascends to the full-blown ludicrous, and finally sails boldly off the edge of the absolutely preposterous."

Not so fast. The film may include more truth than the critic realizes.

Last week, Washington-based Global Findabiliity filed suit against distributor Summit Entertainment, identifying something embodied in "Knowing" that infringed its real-life patent on geocoding technology. The company's patent (7,107,286) is typical tech mumbo-jumbo, but roughly describes a process of using encoded audio-visual information to map improved geographical coordinates.

Sound familiar? In the movie, Cage's character is a professor who, according to a synopsis, "makes the startling discovery that (an) encoded message predicts with pinpoint accuracy the dates, death tolls and coordinates of every major disaster of the past 50 years."

Global Findability is now suing for patent infringement, saying in this highly entertaining complaint that the film "embodies the invention claimed in the '286 patent...by actively inducing or contributing to infringement of said patent by others."

We're familiar with patent troll lawsuits. We're also aware that Hollywood is prone to allegations of idea theft. But what we seem to have here is a strange new genre-bending legal claim where one can infringe technology in fiction similar to the way one can defame a person in fiction. And before we totally dismiss the claim as legal sci-fi, we have to note that Global Findability's board includes tech heavyweights like Peter Morville and the company is being represented in court by a lawyer, Frederick Samuels, who used to work for the US Patent & Trademark Office.

Comments

[Dale B. Halling]

Eric,

Your article insinuates that it is absurd that the movie could violate patent 7,107,286, but it is clear that you did not actually read the patent or did not understand the patent. I know this because you state the patent “is typical tech mumbo-jumbo.” Just because you do not understand something does not make it mumbo-jumbo. Since you did not read the patent and probably do not know how to read the claims (since you are not a patent attorney), the rest of your article is clearly nonsense. It is amazing the number of people who refuse to read patents, let alone actual understand the claims that seem to think they are qualified to determine whether a patent is infringed or valid.

While I do not know if the patent was violated, I can give you numerous examples of how a movie could violate a patent – as opposed to your obviously contrived example. For instance, a movie could violate multiple patents owned by Dolby for sound recordings. A movie could violate patents on computerized animation. In this case, it is possible that the movie used the technology of the patent in question to create scenes related to satellite images. Reading patents and interpreting the claims is hard work. Since you are either of unwilling or incapable of undertaking this work, you should not insinuate that it is absurd that a movie could violate a patent.

[Eriq Gardner]

Dale,

Respectfully, I did read the patent.

It's true that movie-making technology can violate patents -- never said otherwise -- but it's clear we're dealing with something a little unusual here as the lawsuit takes issue with technology "in" and "embodi(ed)" by the fictional film.

[NameChange]

If the claim is to a "use" of the patented technology it could be possible, but it is admittedly a little rare for such a suit to be brought. As Dale mentioned, rarely are these issues so clear cut to be able to pooh pooh the claim out of hand. There must at least be some colorable reason for this suit to be brought in the first place since going to federal court is not a costless proposition.

Incidentally, the word "troll" is officially passe and is now used only by angry little bloggers and large corporate infringers intent on disparaging legitimate patentees who are trying to assert their claims.

[NameChange]

Update: as I suspected, claim 9 of the subject patent is a geospatial positioning *method*, whose steps, I am speculating, could easily have been practiced in a movie, whereupon the underlying infringing act is subject to the infringement claim. What would pose a more interesting question is what the royalty basis should be. Should it be the original allegedly infringing act, or each depiction of the original allegedly infringing act.

[Skyywise]

I don't think troll is passe, it has just become a common term to describe patent assignees who seek to enforce patents that are of dubious validity.

Also, good luck trying to prove contributory infringement of a patent without any *actual* infringement. The movie did not practice the method, it provided a fictional representation of actions. Also, can you prove damages here? Not likely.

[Bugstomper]

NameChange, "troll" is still a useful word in this context, describing both the non-practicing entities who use the patent legal system to shake down people for whom it isn't worth the expense to try to defend themselves, as well describing people who post outrageous arguments in their defense on blogs just to provoke arguments like this.

Your reference to claim 9 just adds credence the supposition that you are trolling. Did you pick it at random expecting nobody to read it? It is one of the clearest claims in the patent, claiming as a method converting, for example latitude, longitude, and altitude in an ASCII string (text) into a numeric representation (presumably a computer's machine representation of numbers) and either combining the three numbers by concatenation to make one big number, or just treating them as one three-element set (claim isn't clear between those two ways of doing it) and using the resulting number or triple as a reference designation of something at that location.

Can you tell me one thing in that claim that is not done by any computer program that reads latitude/longitude/altitude coordinates from a text format file for processing? Were there no such programs well before 2002?

Yes, I know, the patent was granted so arguments such as mine as to how that claim is ridiculous have nothing to do with the ability of the current owner of the patent to sue people and get them to pay to avoid paying even more for the chance at rolling the dice on a court case.

[Domino]

Hmm.. How many patents are in the average car?

Guess we'll be seeing a lot more westerns..

[Greg]

Beats me how you can patent something that's just an idea. Things are bad enough for industry and innovation without having to deal with what might happen, maybe things need changing so they have to produce a working example within a year of patent submission.

[Eriq Gardner]

What I meant to say is that I've heard of the breed of claims popularly classified as "patent troll" lawsuits. More a note on classification than anything else.

[CBCalvin]

There seems to be no embodiment of the idea in the movie, only an image. The fictional device does not function like device described in the patent, it is a simulation.
Actually, the screenplay writer should file a patent, citing this one as prior art, as it seems it goes one better with a 4-tuple (x,y,z,t).
This suit is another good reason why software alone or with only a general purpose computer should not be patentable.

[drakaan]

Skywise, it's even more straightforward than that.

The characters we see in a computer display or type into a keyboard aren't what the computer stores or works with. A set of coordinates (insofar as a computer can manipulate them) are binary digits at every level until they are displayed or printed. At that point, a font manager or printer reads the binary information and selects a symbol or pattern to direct a display device to display (printer, video card, sound card, hard-drive activity LED, etc).

Converting displayed or entered human-readable symbols into numbers is one basic function of a modern general-purpose computer...regardless of what the symbols represent. A similar patent on LZW compression technology applied to the GIF image format was equally wrong, but ought to at least constitute prior art to one practiced in the relevant arts.

If someone thinks that "troll" is an overused word these days, perhaps it's because of an overabundance of patent trolls trying to patent methods, algorithms, and other pure ideas.

Dale, Eric may not be a patent attorney (and I'm not either), but patent attorneys are not technology experts...a fact that is evident in this filing. I would go so far as to say the attorney that assisted in preparing the filing did not deliberate as long as (s)he might have.

Companies are typically sued for creating products for sale that infringe on patents...most commonly where those products compete with products sold by the patent-holder, or (in the case of trolls) where those products compete with nothing.

The movie "Knowing" appears to be a literary work designed to entertain, rather than a sign saying "Infringe this patent!".

Will Global Findability sue the patent office for publishing the patent? Surely that's a far more provable case of "actively inducing or contributing to infringement of said patent by others."

If publishing the patent means that anyone can reproduce the invention (with no need to build, or design any physical object in the process), then we enter the realm of ridiculousness in granting said patent.

[NameChange]

Troll is a word by idiots, for idiots...

There are many large corporations that don't practice the patents they enforce. And there is a difference between "shaking someone down" and suing for infringement on a legitimate patent.

If a patent is of "dubious value" then it is easy and cheap to defeat and risky to assert. If its not then you should consider firing your in-house patent counsel.

[NameChange]

" patent attorneys are not technology experts.."

You've been talking to the wrong patent attorneys, and or, don't understand what a patent claim is.

I personally am a patent attorney with a top tier EE degree, hardware and embedded software design experience in telecommunications, including real time operating systems experience, and countless hours in debug and test. I am confident that I could go out tomorrow and start developing advanced technology again. There are many like me in the ranks of patent attorneys. I will say that there are some who have no technology experience. If you have had the misfortune to encounter such types I feel sorry for you - but you could have called me.

However, please keep in mind that if a crappy patent is being asserted against your company, your in-house counsel should be able to sniff out a "dubious" assertion play and call the players on it. If they are really the type of plaintiff that is just a simple sleazebag, they will go away because, as I said, asserting a patent, especially a "dubious" one, is both risky and expensive, not the kind of thing someone just goes out and does to bother people. If they don't go away, they are most likely legit.

[hawkeyaez1]

Firstly, lets get a few things straight.

Unfortunately the suite in question is not linked to to read (easily), but there is a difference between the producers of the movie infringing a patent, the filmers/actors of the movie violating the patent, and the movie violating the patent.

The article indicates it is the latter, perhaps that is a mis-statementor misunderstanding, or perhaps it is correct.

If it is correct, then the idea is completely preposterous, as then every movie made would be in violate of at least 1,000 patents unless it was a western as Domino notes, or a very future scifi (say, year 3000 when all current technology will be obsolete by far).

If the actors claimed to have violated the patent, then the mere act of acting as a way of violating the patent is preposterous as then everyone would be in violation any time they pretended or did anything.

If the producers are claimed to have violated the patent, then there this idea is less preposterous, but considering the producers did not do this for commercial gain (they are not selling the service or the results of the patent method!) then any white hat hacker or inventor is violating patents every time they create something, and scientists at universities are violating patents similarly. And documenting the creation and posting it on YouTube will mean you will be sued.

Preposterous. Maybe there has been some misrepresentation of what the suit entails, ort maybe lawyers are stooping to a new low.

[Dan Lafferty]

Dale,

Your comeback displays a complete lack of knowledge of the actual purpose of patents.

Not how they are used mind you the ORIGINAL purpose, which was to make sure technology was not lost by making it PUBLIC knowledge as to how to do something, while allowing some time LIMITED exclusivity for the patent owner to profit before it was open to free use.

It is an abuse of the system to make "patents" that only partially describe an invention. That it is allowed does not mean that it is not an abuse!

[TropicalCoder]

I am afraid I have to concur with the patent holder in this case. They have every right to protect their IP. I also feel that actors who commit crimes in films and TV shows should be punished for their crimes. There is too much crime and violence on TV these days, and it is a bad influence on our children. After a few bad actors have been busted for the crimes they portray, I think film studios will quickly clean up their act!

[Steve]

Just my opinions:

The defense of this one is easy: get an experienced patent attorney to file an inter-partes reexamination (preferably in Nevada). This will delay the case until the movie's had it's run. Counter-claim antitrust violations and Lanham act violations. The Plaintiff will tuck tail and run, if they know what's good for them.

More likely, given the stature of the plaintiff, the case is a result of too much scotch following a movie night and "pondering hypothetical" infringement scenarios. They ran across a scenario they liked, but don't know an answer to, and figured they'd waste a few of society's coins to get a court ruling--perhaps up to the SC. What some lawyers won't do for attention . . .

[NameChange]

Let's say you had a method of making steel that involved two very conspicuous steps (and I'm making these up) 1) pouring the molten steel into a series of 6 circular shaped molds; and 2) releasing the 6 castings into water after 1 minute.

Let's say you had a documentary that filmed that actual process being performed.

1) the underlying act would certainly be an infringement.

2) the movie itself could be considered as an inducement of infringement.

Since everyone knows that movies are used to promote related product sales, the idea that the depiction in a movie under certain circumstances could be an inducement to infringe a patented method. There is nothing preposterous about it.

Consider that a documentary that depicts a murder being committed would stand as evidence of the underlying murder. If you could show that someone used the documentary to incite others to violence, then the showing of the movie itself, while not murder, could be an important aspect of an incitement charge.

Of course a movie depicting a murder is not evidence of a crime since no crime was committed. But infringing a patent claim is not like murder.

All you have to do to infringe a patented method is to practice the claimed steps and, lo and behold, you are infringing. The fact that you are acting is not a defense.

If it was every infringer in the world would use the Jon Lovitz defense " Your honor I was not infringing, I was just ..... ACTING"

[HomeUser]

Interesting. Does it work the other way around. Can Jules Vernes sue NASA? I think there are a lot more idea's first mentioned in books and films than that films and books would use idea's from companies.

[Anonymous]

"1) the underlying act would certainly be an infringement."

It's not possible that the act being filmed was being performed by the patent holder themselves or an authorized licensee? You example did say the film was a documentary. Even if the act was being performed without legal right to the process, the party performing the act, not the film, would be the one violating the law.

"2) the movie itself could be considered as an inducement of infringement."

I believe, but IANAL, that a documentary would be quite likely to fall under fair use under most circumstances (poor choice for your example IMHO). So let's suppose it's not a documentary, as is the case in the real case here. A patent, by definition, must fully disclose the process, so the film is not divulging anything one could not have found out by just reading the patent. You've got a LOT of dots to connect to make a case for inducement here. It's possible; most anything is, but good luck with this one.

[CanIHazyourpatent]

The problem with this (god forbid it ever actually makes it to court) if the patent holder wins - that it would have a very chilling effect on so many forms of entertainment - books, movies, plays even - that something in those forms of entertainment "MIGHT" cover some stupid patent. Another wonderful way to leach more money and keep the lawyers busy for the next century.

Now the authors/writers/producers would be forced to perform patent searches on all the content in thier work before releasing it ?

Some idiot - would say in response to that - why shouldn't they? - well I hope you enjoy the current stock of movies/books - because if this happens - the tap will start running dry. Or they will cost so darn much to make - we wouldn't be able to see them.

Next they will think of a way to sue all the people who actually saw the movie or read the book etc... they infringed on it by seeing it.

Jeez we need some reform!

[Ben Thurmon]

NameChange -- "Since everyone knows that movies are used to promote related product sales, the idea that the depiction in a movie under certain circumstances could be an inducement to infringe a patented method. There is nothing preposterous about it."

As a generic proposition, it is preposterous. Do you know anything about the law of inducement of patent infringement? Start by stating the elements for us.

"All you have to do to infringe a patented method is to practice the claimed steps and, lo and behold, you are infringing. The fact that you are acting is not a defense."

Nobody is stating otherwise, as far as I can tell. What does this have to do with the case at issue here? I suggest you read the complaint before answering, lest you come off looking like an even bigger fool than you do now.

P.S. I'm extremely impressed by your alleged credentials but they don't make your comments seem any less thoughtless.

[Dale B. Halling]

The articles and comments misrepresent the complaint. They imply that the film is being sued for script portraying the invention. But the complaint and patent could read on the process of making the patent.

I have not and I doubt anyone writing on this blog has carefully read the patent and attempted to see how these claims might apply to the film. What bothers me is sweeping statements made about patents from people who are completely ignorant of what the patent says and what the claims cover.

[Ann Awneymusk]

Dull Halling: But the complaint and patent could read on the process of making the patent.

Yo, Dull, lay off the crank.

[NameChange]

Ben Thurmond, you can bite me.

Why don't you state the elements of inducement and tell me why I'm wrong if you want to engage me in meaningful debate. Otherwise, I am not impressed by your little tantrum.

And many of the posts here, including the artcle itself (I assume you can read)...

"But what we seem to have here is a strange new genre-bending legal claim where one can infringe technology in fiction similar to the way one can defame a person in fiction. "

...have said that the fact that it is an ACTOR (one can infringe in fiction) is why this is a ridiculous case.

I think my points are quite legitimate and your attack is baseless and childish.

[Ben Thurmon]

Dull Halling: "But the complaint and patent could read on the process of making the patent."

Reposting it so Dull has a second chance to read what he wrote. Maybe he'll explain it this time around, when he gets around to telling us the elements of inducement of patent infringement. C'mon, Dull, don't disappoint us!

[Eriq Gardner]

Dale,

The Patent Law Blog confirms that the allegation is "based on the claimed method being performed in the movie."

[Dan T.]

I don't think merely describing how to practice the technique of the patent would be a violation, since such description is what the patent itself is supposed to do, and the patent is publicly available, and the First Amendment protects discussion of it including explaining what technique it describes.

If the movie producers actually practiced the technique in the course of making the movie, this might be a violation; however, if they merely faked it for fictional scenes (just as the making of the movie "The Time Machine" didn't involve actually engaging in time travel, so it wouldn't violate any patent on the making of genuine time machines), then this wouldn't be a violation. So if the coordinates shown during the movie were actually the correct numeric values that the patented process produces for the coordinates for an actual place at which the moviemakers went to film an on-location scene where the character went to the place described in a coordinate he read, then that might be a violation, but if the numbers shown are actually random digits that don't truly represent the place where they filmed the scene, then that's just a fictional depiction that doesn't use the technique, and not a violation.

[skyywise]

NameChange:

I said "dubious validity", as in the patent probably shouldn't have been granted in the first place. There are plenty of patents of dubious value; no one litigates over them. A legal monopoly doesn't guarantee that there is a market for what you have patented.

Also, I doubt that the movie studio thinks that the lawsuit is "cheap". Rather, it is an unexpected and unnecessary cost, and their in-house copyright and trademark counsel probably isn't as well versed in patent law. Further, even if the patent is dubious, it still gets the 282 presumption of validity, which means it isn't an easy matter to just litigate and invalidate it.

Based on the rationale of this lawsuit, can we say that everything in Star Wars, Star Trek, Dr. Who, Stargate, etc. will operate as prior art against future patent applications?

[Ben Thurman]

Dan T: "If the movie producers actually practiced the technique in the course of making the movie, this might be a violation"

As I pointed out waaaay upthread, this is a US patent and the complaint alleges that the infringing acts occurred in DC. The movie was filmed in Australia. There is zero evidence that any production occurred pre- or post filming in DC.

So much for that theory of infringement.

Here's an idea: maybe this lawsuit is actually a complete pile of crap that nobody can credibly defend.

It's happened before, you know.

[DennisP]

I'm a software developer. I saw the movie. If the simple technique used in the movie is sufficient for a patent, I could get a new patent every couple of weeks. But I couldn't afford to do such a thing. The patent system is broken when it costs way more to patent something than to invent it.

Fortunately, the Supreme Court recently ruled that patents can be thrown out for obviousness, so even aside from the silliness of suing a movie, I predict this patent will be thrown out on its ear. The patent holders have made that even more likely, by bringing to the court's attention the fact that their "invention" was thought up independently by a Hollywood scriptwriter.

[NameChange]

Ben Dover Thurman,

Here's an idea: without going into detail regarding the relative merits of the case, which may or may not be strong, perhaps you are just a bloviating pile of crap with more opinions and means to express them than actual knowledge or experience.

[Ben Thurmon]

NameChange, are you looking for something else to be wrong about in this thread? I think you've reached your limit.

perhaps you are just a bloviating pile of crap

Or just someone who disagrees with you and happens to be right. Tough luck. But keep your chin up, son. You and Dull should start your own blog.