cross-posted from: https://lemm.ee/post/5636484
this post was submitted on 28 Aug 2023
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Can fictional products be used as prior art against real world patents though? The entire idea of patents is to protect something someone made work in the real world.
"The whole concept of a touchscreen device..." is something that prior fictional examples prove false. They did not come up with the concept, but they did implement a prior concept.
"Nobody thought of it" and "nobody made it before" are two different things. Apple even pretended the second was true when they weren't even first to market on several of their products.
But that didn't come from a patent filing, that was my commentary on how they behaved. Patent filing language is much more precise for this reason.
Patents are about implementation, not concepts.
exactly! That tablet you saw in Star Trek TNG is not an implementation, as it's not a real device.
But is is a concept, which was what you appeared to be disagreeing with.
It is a concept indeed. When I said that, I merely provided commentary on how Apple was behaving, not what reflected reality. Apple weaponised their patents because they, or rather, Steve, believed they owned the concept.
My understanding is that patents are to protect novel new ideas. If something's already bean described in fiction, what innovation is protected by the patent?
So, I'd think "it's a tablet" wouldn't be patentable because that was described in Star Trek. But, "screen technology blah that makes tablets practical "would be patentable.
Neat post on related topic: https://fia.umd.edu/answer-can-science-fiction-stories-be-used-to-demonstrate-prior-art-in-patent-cases/
The implementation in the real world. Fiction does not tend to go into how these machines work beyond that which is needed for the narrative. You won't get enough information from such a book or TV show to be able to build something similar yourself, which is usually what you need for a patent.
I'm not saying that devices described by fiction are patentable based on the description in the fiction. But, those descriptions could be used to prove that the 'invention' is too obvious to be patentable. Page 7 of this document from the USPTO going over what 'prior art' is suggests that fiction can be used as prior art.
Fiction can only be used as prior art when what you see (or read about) is all there is to it, such as rounded corners.
It makes sense for fiction to be used as prior art in something like the rounded corners case, as the prop in question basically was an implementation of that patent in real life. Even though it isn't housing any real electronics, the plastic casing itself still exists, and simply putting some electronics inside doesn't make it a sparkly new invention.
It works less well when there are details in the implementation that aren't covered in said fiction or hand waved away with The Force or something. The sliding doors in Star Trek would be an example, as although the doors are seen to slide, you can still patent a mechanism that makes this effect possible.
I apologize, I don't think we're disagreeing. Fiction can, but often doesn't, describe something in sufficient detail to be cited as "prior art" during a patent application or dispute. It comes down to how broad the claims are in the patent.
If someone were to try and patent "sliding doors", a patent examiner could point at Star Trek and say "Sliding doors are already described in published material, your invention is not original".
If someone were to try and patent "Mechanism X, used for making sliding doors slide", that might be patentable because Star Trek (and other published material) didn't describe Mechanism X.
I would agree that we are... agreeing. Just with different wording lol
Patents protect the details of achieving an invention, not the idea for an invention itself (thereby allowing multiple different approaches to serving a market). Most courts are likely to rule that an electronic tablet is a market segment, rather than an invention. But listing out all the electronics and software needed to build one and or the industrial processes and machinery to build one at scale might be granted a patent. Fiction virtually never produces any such detail.
Inventions need to be non-obvious (35 U.S.C. 103: Conditions for patentability; non-obvious subject matter) in order to be patentable. Prior art can be used to show that an invention is obvious. The prior art doesn't need to rise to the level of detail contained in a patent to be prior art.
Not exactly, patents have to be specific, not generic, and Apple purchased the company that invented multi-touch.