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Tuesday, 20 March 2007

This is NOT a joke

Readers may or may not have noticed this patent application, applied for by UK patent attorney Tim Roberts (thanks to Justin Watts, who noticed it on Greg Aharonian's Patnews service, for pointing it out). The application is titled "Business Method: Protecting Jokes", and purports to do pretty much what it says. The first claim (of many) is to:

"The process of protecting a novel joke which comprises filing a patent application defining the novel features of the joke"
In an attempt to find out what the motivation for making this application was, the IPKat contacted the inventor/applicant himself. He responded as follows:
"One of the objects in filing this application was certainly to test the bounds of patentability (in countries which show some sympathy towards the idea of patenting business methods and which do not require enormous expenditure in translating specifications out of English). Another was to add to the gaiety of nations. Other objects (as American drafters say) will become apparent from reading the specification - see for example page 8, lines 10-12. As to whether the patent application will mature into granted patents, only time will tell - and as usual there is plenty of time available. The US Office is doing its best to string out prosecution by directing all correspondence to Germany".
Page 8, lines 10-12 say:
"A particularly preferred form of joke is one in which the intentions of the teller are uncertain : is the intention humorous or serious, or both?"
This application poses some difficult legal and philosophical questions, including a version of the Russell paradox, i.e. can a patent refer to itself as an embodiment of its own scope?

The IPKat is also mildy concerned by the possiblity of this post infringing claim 17, which claims:
"The joke which comprises the filing of a patent application to protect the method of protecting jokes by filing one or more patent applications thereon"
The inventor offers non-exclusive licences under claim 17 on "exceptionally reasonable terms". The IPKat thinks, however, that since this post is definitely not a joke, there is no need to worry. Or is there?

12 comments:

John H said...

If he'd filed at the USPTO, he'd probably be in with a shout of getting it granted...

David said...

The US application is pending.

John H said...

Excellent. I look forward (with all due seriousness - no unlicensed joking going on here, oh no) to reading news of the first $1.5 billion infringement award.

Anonymous said...

If the UK Patent Office has registered trade mark 2401335 (check it out on their website), then there's every prospect of this very serious patent application proceeding to grant.

John H said...

That trade mark is quite fun, but to be honest if I had £200 burning a hole in my pocket *that* badly, I'd upgrade my iPod rather than blowing it on a pointless filing fee...

Anonymous said...

Ha Ha very good John. Ahem , notice I'm not laughing at the patent application non'joke', and thus potentially making you all infringers,I'm laughing at the iPoD joke, OK Mr Roberts ?

Actually, the trade mark proves that, contrary to the owner's opinion, in fact the registry very much has a sense of humour. So much so it has no qualms about taking your £200 for an invalid mark, and not give you the pleasure of refusing such a mark. You know the sort of publicity - "The mark the registry banned etc etc".

Anonymous said...

I just went to espacenet to download the spec and the verification text was "nosober" perhaps the EPO are commenting upon Mr Roberts state when filing the application?

kathryn.garforth said...

As someone who wasn't smart enough to put a disclaimer before her post on Mr. Roberts's patent application, I have been approached by the applicant about licensing his 'invention'. Still waiting for a reponse on his terms, though. Check out my post and the comments that follow on Blogging Biodiversity.

Tim Roberts said...

Why is it thought that infringement is avoided by claiming that the posted message is not a joke? Clearly, it includes the joke. You wouldn't avoid infringement of a drug patent by claiming you were only selling the carton surrounding it. No doubt the intention is at least partly serious - but, as pointed out, that's true of many jokes.

David said...

This raises an interesting point about how claim 17 could be enforced. If the filing of the patent application is/was a joke, then we don't need to (or possibly are actually not supposed to) take it seriously, and should not therefore worry about infringement. Alternatively, if the filing of the patent application is not a joke, i.e. we are supposed to take it seriously, then the claim is invalid for being insufficiently enabled. Either way, the above post is in the clear.

By the way, the analogy with a patented drug does not really assist, because whether the patented drug is actually in the packet is not a matter of opinion, but objective fact.

Tim said...

Can't accept this method of construction. The essence of a joke is that it is funny. That doesn't mean you don't have to take it seriously (see discussion in specification). Indeed, in my submission, humour is as objective as inventiveness, and can be assessed in a comparable way - using as reference a person skilled in the art and having an average sense of humour. Does it work for him (or her)? The judges will no doubt develop guidelines. On this basis, I adhere to the drug analogy, because I say that the question of whether the joke is funny is a question of fact - like obvousness, inventiveness and many similar legal questions. Just because something (whether an invention or a joke, or both) is obvious to you, it doesn't mean it's obvious legally.

David said...

My method of construction of claim 17 follows the principles of Lord Hoffmann, of which I am sure you are well aware. I take the view that the applicant meant what he said in claim 17 when stating that the action of applying for the patent was in fact a joke. Consequently, I understand claim 17 to mean that the patent application should not therefore be taken seriously, and I should not therefore be in any fear of being sued for infringement. The joke itself may be funny, but claim 17 clearly states that the action of apply for the patent is itself a joke, and I therefore take it in the sense in which it was intended.

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