Guess who’s back? Back again?

Unfortunately, not Eminem! Instead, another blog post analysing the mentions (whether accurate or not) of IP in films and TV shows. Last time, we looked at the Netflix series The Fall of the House of Usher.

This week we are looking at a cinematic masterpiece. Possibly one of the greatest films ever made. Well, at least in my opinion (my 9 year old niece also shares this opinion). This week (as the title vaguely suggests) we are looking at Jurassic Park, the Steven Spielberg directed classic from 1993.

Jurassic Park truly is a masterpiece. For those who have not seen it, I will try to avoid spoilers. However, the main concept of the film is that business man called John Hammond (played my Richard Attenborough) has created a theme park (“Jurassic Park”) filled with real dinosaurs that a team of scientists successfully cloned.  However, there are concerns from the park’s investors that the park might not be the safest place to bring lots of people. A place where people could interact with living, breathing dinosaurs not being safe?! Ridiculous!

So three scientists are invited to provide a safety rating of the park. These scientists are Dr Alan Grant (palaeontologist, played by Sam Neill), Dr Ellie Sattler (palaeobotanist, played by Laura Dern) and Dr Ian Malcom (chaotician, played by Jeff Goldblum). Also invited are Hammond’s grandchildren. They all arrive on the island where Jurassic Park has been built, and, after some beautiful cinematic shots, a very cool display of dinosaur animatronics and wonderful music from the soundtrack by John Williams… Chaos ensues.

Before the chaos really gets the chance to start being chaotic, the three scientists and Hammond are having dinner together[1], discussing the park and the dinosaurs when Dr Malcom makes a speech discussing the morality and ethics of what Hammond and his staff are doing. During this speech, he makes several comments which you can view through an IP lens and dissect. This is what we shall do now!

The problem with the scientific power that you’re using here is that it didn’t require any discipline to attain it, you know? You read what others had done and you took the next step.

This is the first extract of his speech we will focus on. In particular, lets analyse this quote with respect to the inventive step threshold inventions must meet to be deemed patentable. In general, to obtain patent protection, your invention must be novel (i.e. new in light of all the literature available) and inventive.  The inventive step requirement can be interpreted as the invention being non-obvious to a person skilled in the art.

Who is this person by whom inventive step is judged? Well, the skilled person is a fictional person of ordinary skill in the technical field of the invention. They have access to all documents in the public domain, mainly taking interest in the documents related to their technical expertise. However, this person does not possess any inventive skill. Therefore, if an invention is obvious to this person then the invention cannot be inventive.

If we consider the invention of dinosaur cloning, the skilled person would likely be a geneticist who specialises in cloning. Therefore, they will have access to all the research papers and books on the topic of genetics and cloning . In other words, they would be able to “read what others had done”, just like Hammond’s scientists. Now, Dr Malcom states that the scientists of Jurassic Park “took the next step” based on all the literature available to them. Therefore, is the invention obvious to the person skilled in the art?

Well, it will all depend on what “next step” the scientists took. If the next step was merely a routine progression of the prior art, or else, an obvious modification that needed to be made, then the invention could be considered obvious to our fictional geneticist. However, if the next step provided a technical advantage not discussed in the literature or else provided an unexpected solution when implementing, then perhaps the invention would not have been obvious.

So for now, the jury is out on whether they meet the inventive step requirement. To provide a more definitive answer would require access to the patent application in question.

Before you even knew what you had, you patented it and packaged it.

This is the next quote from Dr Malcom’s speech that we will analyse.

When filing a patent application, the invention must work as described in the specification. The rights granted by a patent can be seen as a contract. In exchange for receiving a monopoly right on the invention for 20 years, you disclose the invention to the public. Hence, once the protection has expired, the invention can be used by someone else. The description of the application, therefore, must describe how to implement and work the invention in sufficient detail such that the skilled person can carry out the invention. In other words, the disclosure of the invention needs to be an enabling one.

There is a bar to the level of information and detail that needs to be given in an application upon filing. This is tested with respect to the skilled person. In this case, we can (safely) presume that the scientists working for Hammond could be considered the skilled person (if we took away their inventiveness). If these scientists did not truly understand what they had in terms of their cloning devices and capabilities, would they have been able to write a sufficiently enabling specification for their application? What would happen if they hadn’t?

In the UK, if the specification of the patent does not meet the sufficiency requirements then this can be grounds to revoke the patent. Further, it is difficult to rectify lack of sufficiency for an application and still keep the original filing date. When amending a patent application, you cannot amend to include subject matter that extends beyond that which is disclosed in the application as filed. To rectify a lack of sufficiency would most likely require adding subject matter to the application.

Dr Malcom in this instance was most likely referring to the scientists not realising what they had on an ethical and moral level rather than referring to lack of sufficiency but still, it is fun to speculate.

To close out this weeks blog post, I will hand it over to Dr Malcom.

Your scientists were so preoccupied with whether or not they could, they didn’t stop to think if they should.

 

[1] Side note: there is also a lawyer present at this meal who represents the park’s investors but the biggest entertainment he provides in the movie is when he gets eaten by a T-rex whilst hiding in a toilet.

 

WHERE INNOVATION THRIVES

We put you in control of your destiny by organising, optimising, & monetising your Intellectual Property.