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The wonderful world of ballet inventions


Jan McNulty
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Wasn't there someone in the mid or late 1800's who declared that the patent office should be abolished because everything that could be invented - had been invented?

 

Ah yes - here it is found on google - which hadn't as yet at that time been invented:

 

http://en.wikipedia.org/wiki/Charles_Holland_Duell

 

He was the Comissioner of the US Patent Office (no less). 

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Does something have to be useful to get a patent?

No, it has to be novel, and capable of industrial application, I think the term is. Terpsichore will advise when she pops along, no doubt.

 

There are some very fun patents out there if you can be bothered to look for them, including the one all trainee patent agents are sent to search for as one of their first tasks during training, apparently. If only I could remember where it was ...

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Ah, found it. I hope this link will work: http://worldwide.espacenet.com/publicationDetails/originalDocument;jsessionid=7F043918DAE02195F9215FE05ABCFF45.espacenet_levelx_prod_2?CC=GB&NR=1426698A&KC=A&FT=D&ND=&date=19760303&DB=&locale=en_ep

 

Just to whet your appetite, it's for a PHOTON PUSH-PULL RADIATION DETECTOR FOR USE IN CHROMATICALLY SELECTIVE CAT FLAP CONTROL AND 1000 MEGATON EARTH-ORBITAL PEACE-KEEPING BOMB :)

 

Now back to a vastly less-interesting one ...

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Does something have to be useful to get a patent?

 

Yes it does. Art 27 of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") which is annexed to the Agreement establishing the World Trade Organization and to which nearly all countries including the USA and UK adhere provides:

 

"patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application."

 

A footnote explains that 

 

"For the purposes of this Article, the term. ..... “capable of industrial application” may be deemed by a Member to be synonymous with the term. ..... “useful” ......"

 

It is not, however, necessary for anyone to want to use the article. In fact most patents on the registers of the world's patent offices are never worked.  That is a great problem because patents are expensive to get - about £5,000 for the UK alone and 33,000 euros for say 6 European countries of the for up to 10 years according to research commissioned by the European Patent Office about 10 years ago - and even more expensive to enforce.  Of those patents that are worked only a small proportion cover their costs and of those only a handful make serious money for their proprietors.   

 

There us a lot of urban mythology about the value of patents.   In my 37 year career at the English Bar I have seen far more businesses impoverished by having too much intellectual property than for having too little.  That is why that for better or for worse I have made it my life's work to look after start-ups and other small businesses. Consequently, I hold regular pro bono clinics at Middlesex University in London and the Business Innovation Centre in Barnsley. I also started 10 years ago and still chair from time to time inventors' clubs in Leeds, Liverpool and Sheffield. I have also published a book that is now out of date and which I am presently revising on how small businesses and individuals can defend and enforce their intellectual property rights

 

As it happens I am writing a series of articles on intellectual property and ballet and I will be offering a course on it free of charge for administrators, agents, dancers and others who want it as my gift to the dancers and companies who have thrilled me over the years.  Patents are not very important to ballet but other rights such as trade marks, rights in performances and copyrights are vital.

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No, it has to be novel, and capable of industrial application, I think the term is. Terpsichore will advise when she pops along, no doubt.

 

There are some very fun patents out there if you can be bothered to look for them, including the one all trainee patent agents are sent to search for as one of their first tasks during training, apparently. If only I could remember where it was ...

 

There are lots of such sites particularly in the USA: Patently Silly, Patently Absurd, Funny Patents and Inventions. Any Google search will uncover loads.

 

You are probably thinking of Arthur Pedrick who was a patent examiner all his life. When he retired he avenged himself on his former colleagues by filing applications for the most ridiculous inventions but all of which nevertheless met the statutory criteria of novelty, inventiveness and utility fell outside all the statutory exceptions. Mr Pedrick kept a cat called Ginger and on some of those applications Ginger was named as a co-inventor.

 

I am also an IP blogger and every April's fools day Jeremy Phillips who leads the IPKat team and I compete for the most outlandish IP related story.

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My question "does it have to be useful?" was actually tongue in cheek upon seeing the foot and leg stretcher.  However, it elicited a most interesting response from Terpsichore - and i thank you for that.

 

My next question - and I am having trouble framing it is.....what about an invention which is harmful?   Which I consider a foot stretcher to be.

 

And what stiplulations, if any, as to the degree of use/harm are necessary?

Edited by Anjuli_Bai
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........................................................

 

My next question - and I am having trouble framing it is.....what about an invention which is harmful?   Which I consider a foot stretcher to be.

 

And what stiplulations, if any, as to the degree of use/harm are necessary?

 

I can't really give you a clear answer to that interesting question, Anjuli_Bai, because the law is uncertain.

 

The starting point is TRIPS (the agreement annexed to the World Trade Organization agreement).  Governments of countries  that are party to the World Trade Organization are allowed to exclude from patentability

 

"inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law." (art 27 (2) of TRIPS).

 

That provision is implemented into our law by s.1 (3) and (4) of our Patents Act 1977. S.1 (3) provides:

 

"A patent shall not be granted for an invention the commercial exploitation of which would be contrary to public policy or morality."
 
However that is qualified by s.1 (4):
 
"For the purposes of subsection (3) above exploitation shall not be regarded as contrary to public policy or morality only because it is prohibited by any law in force in the United Kingdom or any part of it."
 
Other countries make similar provision in their domestic laws.
 
The only case that I can think of where the question of public policy or morality has been discussed recently is the onco or Harvard mouse the genes of which were arranged to develop cancerous tumours. The litigation was long and complex but it is summarized in an article in Wikpedia. Essentially the laboratory that produced this unfortunate creature applied for patents in the US Patent and Trademark Office, the European Patent Office (an intergovernmental office in Munich which examines inventions and grants patents on behalf of about 40 European governments including the UK) and many other patent offices. In both the USA and Europe the application was opposed on grounds of cruelty but patents were nevertheless granted.
 
I think the practical answer to your question is that the consumer protection authorities would have power in most countries to prevent the sale of an unsafe article on health and safety grounds.   Moreover, if anyone was injured by such a device the victim could probably find a law firm in either of our countries that would be prepared to accept instructions on a no win no fee basis.
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A footnote explains that 

 

"For the purposes of this Article, the term. ..... “capable of industrial application” may be deemed by a Member to be synonymous with the term. ..... “useful” ......"

 

Well well, I've managed to exist all this time without knowing about TRIPS - but then most of my work is under the European Patent Convention (which I don't think uses that definition), so perhaps it's not totally surprising.

 

My next question - and I am having trouble framing it is.....what about an invention which is harmful?   Which I consider a foot stretcher to be.

 

And what stiplulations, if any, as to the degree of use/harm are necessary?

 

Let's put it this way, Anjuli: you can apply for a patent for a military weapon ...  (I've never seen any, because I'm not a signatory to the Official Secrets Act, but they do exist)

 

That provision is implemented into our law by s.1 (3) and (4) of our Patents Act 1977. S.1 (3) provides:

 

"A patent shall not be granted for an invention the commercial exploitation of which would be contrary to public policy or morality."

 

I remember objecting to a patent some years ago, something along the lines of because it allowed you to remove the cylinders from Yale-type locks, on the basis that it was likely to be of most use to burglars :)

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