Filmmakers Sued for Fictional Patent Infringement?

Rebecca Schoff, Chilling Effects Clearinghouse, December 03, 2009

Abstract: Legal reporter Eriq Gardner over at THR, Esq. has brought our attention to a lawsuit filed by Global Findability, Inc. against Summit Entertainment, makers of the sci-fi thriller Knowing, for patent infringement, apparently because the characters in the film are depicted using a string of numbers (including date, latitude, and longitude) to indicate the time and location of an event.

Let's say that there's still an active patent on automobiles—is it okay to film someone driving an automobile and put that in a movie? How about a business method patent on a way to monitor investments—can Steven Spielberg film a riveting action blockbuster about investment bankers using that very method? You'd think the obvious answer should be yes, but there's a company in Washington, D.C. that seems to disagree.

Global Findability, Inc. describes itself as a "geospatial information company." They hold a patent for what they call the "Geocode service," which "creates a single geospatial code that provides location, local time, global time and other geospatial information." In a complaint filed in U.S. district court, Global Findability alleges that Summit Entertainment and their partners have infringed the Geocode patent by "making, using, importing, offering for sale and/or selling in the United States, without authority, the Film that embodies the invention claimed in the '286 patent and/or . . . by actively inducing or contributing to infringement of said patent by others."

The allegedly infringing film is Knowing, the thriller starring Nicholas Cage, in which [SPOILER ALERT] aliens telepathically whisper a string of numbers to entranced children. The numbers turn out to be a series of dates, locations, and body counts for global disasters, including the final destruction of the world, which the aliens accurately predict using a method that was never quite clear to this viewer.

The filing of the complaint has caused consternation amongst commentators (see the Techdirt coverage, e.g.) because the wording of the complaint, though general, seems to imply that the so-called "embodiment" of the invention that infringes the patent is the representation of the characters using a string of numbers—or rather, pretending to use a string of numbers, because, of course, they don't really use the numbers to find any locations—for that, they actually used the movie SCRIPT. In other words, if we're reading the complaint correctly, Global Findability is claiming that the filmmakers infringed the patent by making and selling the film, not by making and selling the patented device or method--which sounds a little. . . alien. . . to patent law.

Given the role of aliens in the production of the string of numbers in the film, it's not clear that the film even represents Geocode being used. Take a look at the patent, number 7,107,286, posted here. No aliens are claimed as an element of the invention. Similarly, you'll notice several elements in the patented invention missing from the film--so many missing elements that an analogy between the alien/child duo and the patented system would seem to belittle Geocode to an embarrassing degree, making the complaint doubly perplexing.

Nor does the fate of the characters who use the number string suggest that the film promotes the actual use of such number strings or the infringement of any potential patents thereon (everyone suffers total annihilation, except for two of the number-chanting kids, who are saved by. . . well, just see the film if you must know.)

Generally speaking, a finding of patent infringement requires that the allegedly infringing device or method perform all of the elements of at least one of the claims in the patent. For more on patent infringement see Patent.

More to the point, patent law gives the holder of the patent the exclusive right to make, use, and sell the patented invention. Talking about the patented invention or fictionally representing the patented invention should be okay. In fact, bringing inventions into the public eye is one of the central justifications for patent law. We give inventors a monopoly on the production, use, and sale of their inventions for a fixed amount of time and in return the inventor must give the public a detailed description of his invention, how it works, and the best possible way to make it. Patents are published and made available to the public precisely because we want people to think about new inventions, talk about them, and even find a way to make them better. Scholars must be free to write about patented inventions and, yes, science fiction filmmakers must be free to imagine what might happen if someone used them, even if what they imagine is the complete incineration of the world.

Chilling Effects Clearinghouse - www.chillingeffects.org

Chilling Effects Clearinghouse page printed from: https://www.chillingeffects.org/weather.cgi?WeatherID=624