Now I do understand the reason for protecting ones creation so the idea of patenting isn't what I'm questioning. What I'm concerned about is where the line is on what should or shouldn't be patented.

Let me give you a few examples to try and make my point. I have 3 tricks on the market that use the paddle move. Going by what some are trying to do I could patent the paddle move and go after all the companies that make color changing knifes, Hot rods and the numerous other effects on the market that use the move.

Of course that would be silly of me to do that but the sad truth is I probably could if I wanted to. I know that because similar things are happening with other products. Maybe not a "Move" but I hope you understand what I'm trying to get at.

Now another thing I feel is important to look at is the fact that magic is not a very large society. The magic industry is getting bigger and more main stream these days but its' still no where near as big as other types of entertainment such as the music or actors industry. Magic, for the most part, has gone by a sort of "First come first serve" way of handling things. For example if a magician markets an item we all know when it was released and by who. If anyone releases the same thing on a later date we magicians are usually pretty open about stating the fact that what they are marketing is already on the market.

Of course debates do pop up and many products end up a victim of copy cat products. I know someone who marketed a very popular item and after that many copy cats hit the market. Of course this upset the originator but how he handled it is to keep doing what he does and make sure his stays better quality then the copy cat items.

So let's look at what one could do.

-How about patenting a flesh colored thimble and go after companies that make Thumb tips.
-Patent the linking rings.
-Patent a pen cap on the end of an elastic cord (Vanisher).

Then there's the issue of effect and method. A number of effects can look exactly the same but are accomplished with different methods. The same is true in reverse. If one was to patent one of them would the one who has a different method of accomplishing the same thing be breaking the rules of the patent? Or if someone used the same method to accomplish a different effect? For example I know 4 different ways to create the illusion of my trick called "Outsmokin". If I did patent one of these methods and someone else markets a version of it using a different method. Would this be a violation of my patent? I'm not asking if it would be right to do so. I'm asking if it would be a violation of the patent.


I know these things are getting silly but that just goes to show that there must be some line not to cross on this issue.

I know I don't have all the answers for this is a delicate topic. Which is why I decided to start this discussion.

What do you think?

Ron Jaxon

One of the basic requirements for patentability is novelty, so, actually, you would not be able to obtain a patent for the paddle move. A "move" COULD, probably, be patented, if it were novel; however, I suspect that in most cases, the patent process would not be a cost-effective way of protecting one's intellectual property, in magic.

If you obtained a method patent on a novel method of achieving an effect, it would not be a violation of the patent to use a different method to achieve the same effect.

Or,

-Trade in "being short-sighted and greedy" for "being creative and moving on with your life."

Ron- Lobo is right. Among the requirements for a patent are novelty and nonobviousness. For the examples you give, such as patenting thimbles and going after thumb tips, etc., you should never be able to convince the PTO (Patent and Trademark Office) of the novelty or nonobviousness of the thimbles. However, even if you were able to get the patent issued (say, on some interesting aspect of the thimbles), you should never be able to successfully sue someone making or selling or using thumb tips, because the thumb tips are prior art to your thimbles, as they publicly existed before the invention of your thimble. While patent law is fairly complex, it is axiomatic that you can't sue someone who brought out something prior to your invention.
As a practical matter, obtaining patents can be expensive, and lawsuits are generally very, very expensive, in the millions of dollars in legal fees. These considerations should act as a natural brake on wasting money on clearly unpatentable ideas. But they don't always do so.

John

Thanks for your replies.

I guess I should have used a better example then "The paddle move" and "Thimbles". But anyway the issue is still a difficult one and it's something I feel we need to work out. On one side of the coin we do need to protect our creations. But on the other side there's the issue that the patent office wouldn't know an "Original magic trick or prop" if it hit them in the face.

One thought just came to mind. I wonder if I could submit a light bulb that you can turn on by touching a piece of metal to the right points (Such as a finger ring) to make it light up. Then get it approved if I found some cleaver use for it other then magic. Then state my claim to any magic company that makes the "Magic light bulb".

My point is that I don't think a "patent" is the best way for us magicians to protect our creations. I'm not exactly sure what the best way is but I don't think that's it. I think what we've always done is a little better. By that I mean it's public knowledge who marketed an item and who did it first.

Ron Jaxon

Problem is, sometimes public knowledge gets it wrong. It's true that many effects are widely and reliably attributed to particular inventors. But there is also a certain urban myth effect that has allowed some illusions to be attributed to particular magicians despite the fact that they existed prior to those magicians presenting them. Sometimes this is down to innocent re-discovery of an old idea which had been lost, other times it can be more dubious. And the bottom line is that you're taking a risk if you rely on "public knowledge" to protect your commercial interest. There are plenty of examples of people who have arguably lost out on large sums through such reliance.

Assuming you have something which is genuinely novel (and not undermined by prior art as has been explained) then the question of whether to patent or not comes down to money.

The obstacle presented by the cost of enforcing patents is sometimes overstated in magic forums - I agree it can get expensive but it isn't automatically as expensive as some seem to think. The thing that decides whether you end up massively out of pocket is whether you have a solid case or not. If you win you ought to be able to recover costs. So it depends on how confident you are about the originality of your product and the obviousness of the rip off. It also depends on how much money is involved. If you are a small business producing an inexpensive item in very low volumes and the firm that rips you off is also doing similar volumes then (quite apart from anything else) legal measures such as patents are probably not worth your time. On the other hand, if you get ripped off by a large corporation that turns your invention into a high value or volume product then they are effectively depriving you of big money. In this case it would be worth your while to have a patent and to sue for infringement.

There are, of course, technical requirements that govern what can and cannot be patented. Moves alone might not pass the technical criteria, which are more slewed towards protection of designs and devices. You also need to remember that patenting an idea requires publication of that idea in your patent documents - which means it becomes accessible to anyone who wants to look it up without paying you. This has been a traditional deterrent to magicians using patents - I disagree with many of those who argue against patents on these grounds but I feel bound to mention their position here.

On a more positive note, there are other ways of protecting "intellectual property", which don't require complicated and costly registration procedures. The most significant is copyright, which covers a very wide range of creative works. You don't need to apply for it at all. It automatically comes into existence when you create an original work that fits the categories of material to which copyright applies.

Many people think copyright only applies to writing and pictures but they are wrong as it can cover all manner of "works of artistic craftsmanship". There is still much about copyright in relation to magic that remains untested in court. One use that has been successfully tested is to put illusions into the form of short scripted plays - which are automatically covered by copyright. Houdini used this tactic to preserve the exclusivity of his Water Torture Cell Escape.

It is only right to point out that from the magician's point of view there are weakenesses in copyright - it does not protect ideas, only the artistic form into which they are put. So it might be legally possible to lift an idea from a book as long as it is put into new words. Nevertheless plots have been deemed capable of being covered by copyright (as with the James Bond story Thunderball) so if you have a truly original idea for an effect it might (and I stress only might) be capable of being covered by copyright if it is set out as a short play.

If you have a method which you think is good enough that it will be worth significant money if it is only performed by a very small number of people then you could use trade secrets or confidentiality law to protect it (trade secrets is the relevant area of law in the USA, the law on duty of confidence is what applies in the UK). Essentially this means keeping the secret just that - secret. If you are going to sell it or reveal it to anyone you need to get them to sign an agreement that they will keep the information to themselves (and any documentation ought to be marked with terms such as "confidential" and "trade secret"). You also need to take sensible measures to make sure you don't reveal the idea. As long as you fulfil those criteria you ought to have some protection. In general tactical terms this is the approach magicians have traditionally taken (although not always with rigorous use of written agreements or recourse to courts).

Sadly trade secrets protection tends to become useless if someone else figures out the secret for themselves (rather than stealing a look at your documents or learning it off someone who signed a confidentiality deal with you). And trade secrets law can be even trickier to enforce than patents.

Ron,

You've hit the nail squarely on the head. I've stated things like this in other posts. Problem is, that today, the patent is really the only protection we have to work with today. Patenting exposes the method, but then if you go trade secret, you keep the method hidden, but have no protection. And for those knock off Makers for DVDs and such, how do you really protect that????

I'm in software as my day-job, and I deal with software patent law almost every day (I'm a techie, not a lawyer, so I'm analogous to the magic creator) and patent law was not written with software in mind, and has had to morph and adapt to deal with it, along with other things like business processes (Amazon's 1-click shopping patent comes to mind).

Magic is another area that may stimulate some changes to patent law (I suspect not, since it is really a fairly small segment of patent activity) but the magic creation industry is going to have to adapt and evolve with respect to idea protection issues.

The prior posts on patent law (nonobviousness, prior art, novelty etc) will all still apply I'm sure, but how the industry, community and consumers interact to respect invention and ownership is, I suspect, a long time off, I'm sorry to say. Till then, we have to use what is there, and necessity is the mother of invention; things (ideas, laws, whatever) will eventually emerge.

I wrote another post on some other ideas here:



All of these things are issues that have to be dealt with as we evolve marketplaces, industries and so on. No one said it's going to be easy, or fun, and feelings will get hurt and people will get bruised along the way. One can only hope that stays to a minimum.

You can't patent anything that has already appeared in print as a system. It must be something new.

Copyright will only protect the exact representation up to a point. You can get a design patent. You can trademark certain applications, or you can copyright a design as art, if it has no utility. For example, you could copyright a sculpture of a coffee pot. But if it was a functional coffee pot, it would probably no longer qualify as a work of art.

Exposure in patent papers is really way overblown. If you want to protect something, patent it. The patent will expire in about 20 years, then that's it.

The trade secrets method is not practical, because once you have sold it to someone who has not signed a formal agreement of confidentiality, then the cat is out of the bag.

Just make the trick, copyright the designs by mailing it to yourself in a registered letter to establish a date of origin, and sell as many as you can before the guys in other places make them.

BTW, once it gets to China or India, forget about enforcing the item. They don't recognize our IP.

The unfortunate reality is, today, Bill's post is probably the most practical approach.