Patent Oscars: The good, the bad and the ugly

Readers will undoubtedly have followed with avid attention the 2019 Academy Awards season, which culminated with the Oscar awards ceremony a few weeks ago. However, readers are also likely to be saddened by the lack of patent-related story lines in connection with this years nominations. As a small compensation, this Kat takes the opportunity to review the rare occasions on which her favourite form of intellectual property has made it to the screen (albeit with mixed results).

The Good: Joy and The Man Who Fell To Earth

First, a film for the patent attorneys. The Man Who Fell to Earth (1976) is a sci-fi classic. A gaunt David Bowie makes his silvers-screen debut as an alien on a mission to Earth in search of water for his own desiccated planet. Bowie the alien needs funds to finance delivery of water back to his own planet. His head is also filled with alien technology as yet unknown to human kind. Bowie thus finds himself a US patent attorney (Buck Henry, sporting a patent attorney's thick pair of glasses). Bowie offers the attorney $1k/hr to patent his alien inventions, first making sure to correct his own pronunciation of "patent" (from pay-tent to pat- ent). Skip forward in time and the patent attorney is now the president of Bowie's incredibly successful World Enterprises Corporation. Take-home message: The patent office does not search for alien prior art, so if you can find an alien client, you are on to a winner.

David Bowie

Joy (2015) is a heart-warming story starring Jennifer Lawrence as inventor Joy Mangano. Single-mother Joy invents a new type of mop. To bring the product to market, Joy enters into a contractual relationship with a manufacturing company who agree to make the product. To avoid a potential patent lawsuit, the manufacturer advises Joy to pay a large amount of patent royalties to a man in Hong Kong, who reportedly as a patent for “a similar product”. As becomes clear later in the film, Joy’s primary mistake is not consulting a patent attorney, which would have avoided many later trials and tribulations. The take home message is clear: In matters involving patents, consult a patent attorney, and that will contribute to an all-round worthy film.

The Bad: Suits

The representation (or more accurately, misrepresentation) of patents in hit US drama Suits, is a common gripe among patent attorneys. This Kat has to admit that, following the embarrassingly inaccurate portrayal of patent prosecution in Episode 2 of Season 1, she was put off from watching the rest of the series. In this episode, the junior associate hero of the story draft, files and achieves grant of a patent within a matter of days. However, we can perhaps forgive a certain speeding up of patent prosecution in the interests of dramatic tension and cinematic licence.

"Research"

The bad representation of patents in Episode 2, season 1, is trumped by Season 6, Episode 16 (which this Kat has now watched in the interests of research). In Season 6, the writers of the series invent their own version of patent law based on the mysterious concept of the "30% overlap test". The lawyers in the drama proclaim that it is legally acceptable for a patent to have a 30% or below overlap with a previous patent. For the sake of clarity, "30% overlap" is not a real concept. A patent is either novel or not, and inventiveness is determined by the obviousness in view of the prior art, not "% overlap".

Patents have the reputation of being a complex and idiosyncratic aspect of the law (they are the "hard" form of IP after all...). However, it is difficult to see any justification for the inaccuracy in what is, after all, supposed to be a legal drama. Is it just sloppiness? Can the writers of a series, such as Suits, simply not be bothered to find out even the basic facts of patent law? Maybe they should take a few minutes to watch the UK IPO's educational videos. Unfortunately, for a lawyer, the legal inaccuracies in Suits makes the series unwatchable.

The Ugly: Orphan Black

For the "Ugly" we turn our attention to popular Netflix TV show Orphan Black. The plot follows down-and-out New Yorker Sarah Manning (Tatiana Maslany). Sarah gradually begins to suspect over the course of season 1 that she is one of a number of identical clones. One of the Sarah identikits encountered is a geeky molecular biologist, who confirms the clone-theory by DNA sequencing. Mysteriously, the genomic sequences of the clones are not completely identical. Each clone’s DNA has a short section of unique "embedded" sequence. In a fast paced and climactic end to the first season, the Geek-Sarah finally manages to decode the embedded sequence and makes the shocking discovery that the sequence is, wait for it, “a patent”.

Almost everything about this plot twist is factually wrong and clearly nonsense to anyone with even a vague understanding of patents. To mention just a few issues: 1. It is not possible to patent human beings; 2. patents must be disclosed, and if the sequence were a patent and enforceable, it would be publicly available, and not hidden in the subject's DNA. 3. Patents expire after 20 years. Given that Sarah and her clones are at least 20 years old, the patents will therefore have expired. 

In this Kat's opinion, the inaccuracies in Orphan Black are far more egregious than those of Suits. Whilst Suits gets the legal processes and definitions wrong, Orphan Black feeds off and reinforces popular myths about patents that, whilst blatantly untrue, are also frequently used to lambast the patent system.

So now it is over to readers. This Kat is particularly keen to hear about films or TV shows presenting an accurate portrayal of patents.

See IPKat's previous whimsies on IP and the Oscars here. 

Image credits: TV watching cat - Ineke Kamps photography & painting