Do inventors pay royalties for fictionally-inspired technology?

April 5, 2006 8:01 AM

If someone were to create an actual working version of fictional technology, would the inventor have to pay royalties to the owner of the original fiction?

Suppose someone came up with a real working warp drive that was directly based on the technology from Star Trek (right down to the big blue warp core and glowing nacelles). Before the warp drive could be mass produced and sold would the inventor have to negotiate with the group that holds the rights to Star Trek to work out a royalty payment?

This question doesn't pertain exactly to Star Trek, so feel free to come up with your own example if you like. We could be talking about stargates, lightsabers, or sonic screwdrivers if you want.

posted by Servo5678 to law & government (19 comments total)

No
posted by caddis at 8:01 AM on April 5, 2006

Only if it's been previously patented. And since the patent office seems to be granting LOTS of patents on vague handwavy things these days, I wouldn't be surprised to see patent applications for said things.
posted by antifuse at 8:03 AM on April 5, 2006

slightly longer answer: Technology like a warp drive can be protected by patent. Did the authors of Star Trek patent warp technology? No, because you have to enable it, i.e. show someone how to build a working example. What about copyright? It protects the expression of the idea, not the idea itself. You can build a warp drive (assuming you solve certain significant technical problems) and you can write novels and screenplays involving warp drives.
posted by caddis at 8:06 AM on April 5, 2006

Funny you should ask. As a radar expert for the RAF, Arthur C. Clarke came up with the idea of the telecommunications satellite and published an article on it in 1945. He never patented it.
posted by Ironmouth at 8:15 AM on April 5, 2006

But does the writing prove prior art? ie. Can the 'inventor' in the future get a patent?

(As an alternative question, but I don't want to derail, should it?)
posted by inigo2 at 8:19 AM on April 5, 2006

So, is the ansible I built is safe?
posted by Thorzdad at 8:36 AM on April 5, 2006

From the Wikipedia entry on waterbeds:

However, because a waterbed is described in the novels Beyond This Horizon (1942), Double Star (1956), and Stranger in a Strange Land (1961) by Robert A. Heinlein, Hall was unable to obtain a patent on his creation.

Assuming that this is correct, there is at least one example of someone being unable to patent an invention because it was previously described in a science fiction novel. I'm not fully convinced myself, and searching for Heinlein in conjunction with waterbeds gives a few different accounts.
posted by flipper at 8:36 AM on April 5, 2006

I'm sorry, I just couldn't resist.
posted by ulotrichous at 8:48 AM on April 5, 2006

It is possible that you'd be unable to obtain a patent on something described in a science fiction novel, particularly if it is described in a good bit of detail. Then the SF novel qualifies as prior art and your idea can be shown (by a competent patent examiner) to be unoriginal.

Today, of course, patent examiners are overworked and may not be familiar with every single SF novel.
posted by kindall at 9:15 AM on April 5, 2006

kindall said:

Today, of course, patent examiners are overworked and may not be familiar with every single SF novel.

but then they will overturn it latewr if contested, a la the blackberry patent battle?
posted by Izzmeister at 9:23 AM on April 5, 2006

right down to the big blue warp core and glowing nacelles

Not sure about the patent, but in theory, you could be nailed for copyright infringement on the expression of the technology and the original IP. In other words, if you magically created a starship that looked exactly like the Enterprise, and you called it the Enterprise, and you had guys on it dressed in Starfleet uniforms, and you charged people money for Star Trek(tm) brand pleasure cruises around the solar system, the guys at Paramount would probably like to have a word with you.
posted by frogan at 9:29 AM on April 5, 2006

I'm pretty sure that just having the idea of a warp drive and having the method to engineer the warp drive are two very different things. Invent a way to make it work, and you can get a patent (maybe doesn't work for obvious things like 'a bed filled with water' but for something as complex as a warp drive...)

Thorzdad, props on the Ender's reference.
posted by ZackTM at 9:47 AM on April 5, 2006

A work of fiction is not prior art unless it goes into enough detail to more or less give the invention away. Even then it goes to the courts.

That does not mean that fiction cannot be used as prior art at all. If the fiction describes the invention in sufficient detail, it counts as prior art just like a technical publication would. A famous example is the case of a method to recover sunken ships by filling them with buoyant bodies fed through a tube. This method was used in 1964 to recover the freighter Al-Kuwait from the bottom of the Persian Gulf. The Danish inventor Karl Kroeyer tried to get a patent for this method, but his patent application (amongst others, in the UK GB 1070600 and in the Netherlands NL 6514306) was rejected for lack of novelty. The prior art? In 1949 the Donald Duck story The Sunken Yacht (by Carl Barks) shows Donald and the nephews raising a ship by filling it with ping pong balls shoved through a tube. Since ping pong balls are buoyant bodies, and they were fed to the yacht through a tube, the Donald Duck episode was considered novelty-destroying prior art.

http://www.iusmentis.com/patents/priorart/
posted by skallas at 9:47 AM on April 5, 2006 [1 favorite]

In some Larry Niven story the hero looks up inventions by Heinlein. There's the waterbed, the linear accelerator mass driver, waldos (telepresence to do micromanipulation), and the moving walkway. (Though I know I saw one of those in Singin' in the Rain.) NO PATENTS ON FILE says the computer, to our hero's disgust.
posted by Aknaton at 11:35 AM on April 5, 2006

The rule of thumb for patenting an invention is that the applicant must be the first to reduce the claimed invention to practice. reduction to practice need not involve a working model, however, but can rely on detailed plans sufficient that someone "skilled in the art" could build a working model. In addition, the novelty of the invention must be such that it would not normally occur to a person skilled in the art associated with that invention.

In the example of the warp drive, if it is not possible for a person skilled in the art of propulsion systems to create a functioning warp drive from what has been revealed in the Star Trek stuff so far, then what has been revealed does not serve as prior art.

That being said, however, the overworked Patent Office seems to have adopted the practice of granting many "problematic" applications and letting the courts settle the issue of validity. This shifts the workload to the applicant(s) and the contester(s), especially in the business of establishing prior art and novelty.

As for Copyright and Trademarks, these have to do respectively with written material and visual presentation. If the warp drive needed to look exactly like those depicted in the Star Wars stuff in order to work, then a Trademark infringement could be claimed. Copyright infringement would only pertain if writing associated with the Star Trek warp drive significantly matched written material necessarily associated with the claimed technology.
posted by RMALCOLM at 12:21 PM on April 5, 2006

To second what flipper said above, this question reminded me of things that Jules Verne often wrote about (ie, "cosmic, atmospheric, and underwater travel long before air travel and submarines were commonplace and before practical means of space travel had even been devised").

Interesting to see examples like the waterbed and the Donald Duck thing, too.
posted by lhall at 5:34 PM on April 5, 2006

ZackTM, Ursula LeGuin holds prior art on the ansible... Rocannon's World, 1966 (somewhat earlier than Card's use of it in Ender's Game... where one character says the name was dug up from an old book...).
posted by lhauser at 4:33 PM on April 6, 2006

Neither LeGuin nor Card really hold prior art on the ansible, since neither of them provides enough data to actually build one. In the Donald Duck and Heinlein cases, you could easily use those descriptions to do what you wanted to do (ie raise a ship using ping pong balls, build a waterbed).
posted by antifuse at 6:19 AM on April 7, 2006

(Although, Card does give a mumbo-jumbo description of how his ansible works, which doesn't hold up to current theories of physics, but whatever)
posted by antifuse at 6:20 AM on April 7, 2006