Chuckro and Edgehopper, this is for you

[jethrien]

http://lawandthemultiverse.com/

Superheroes, supervillians, and the law.

"If there’s one thing comic book nerds like doing it’s over-thinking the smallest details. Here we turn our attention to the hypothetical legal ramifications of comic book tropes, characters, and powers. Just a few examples: Are mutants a protected class? Who foots the bill when a hero damages property while fighting a villain? What happens legally when a character comes back from the dead?"

Comments

[edgehopper.livejournal.com]

I have to admit I'm a little disappointed in their one IP law entry, Batman and Patents. They correctly conclude that Batman/Bruce Wayne/Wayne Enterprises would have a hard time patenting the various batgadgets, because of the public use bar (though presumably they can get around it by filing within a year of Batman's first use of the gadget.)

The right answer, though, is that Wayne would use trade secret protection to protect all of his gadgets. Patents have an enablement and best mode requirement, forcing inventors to disclose how their invention works and the best method of performing it. All they give you is a legal monopoly on the product--and while that might be an impediment to law-abiding competitor companies, it won't stop the Joker or Mr. Freeze. So by applying for, say, a patent on his flying cape in the movies, he tells the Joker, the Riddler, and anyone else who wants to know exactly how it works, making it easy for his enemies to break the gadget.

Trade secret protection, on the other hand, requires no disclosure to the public but allows for independent invention. Batman's gadgets generally aren't going on sale on the open market, so independent invention isn't a big concern. Also, independent invention probably doesn't tell you about the details of Batman's specific gadget. Depending on your source, the only people who legally know how the gadget works are Lucius Fox, Alfred, Robin, maybe Batgirl, and maybe some Wayne Enterprises R&D scientists. None of these are people who are likely to blab to the public ("You believe your boss is a vigilante who goes around at night beating up criminals, and your plan is to blackmail this person? Good luck.") The average supervillain won't be intimidated by trade secret law into not surveiling Wayne Enterprises if they can, but average employees aren't going to take the chance of stealing Batman's trade secrets.

So Batman won't patent his gadgets, he'll just make everyone around him sign confidentiality agreements.

[cubby-t-bear.livejournal.com]

So the way I read this, companies' secrets are already protected without patents? All patents do is give companies an incentive to make their research public, so that they can sue people who reverse-engineered their product?

[edgehopper.livejournal.com]

Essentially. To prove trade secret misappropriation, you have to show that the defendant actually found some way to intentionally get access to your trade secrets and used them. The secrets also can't be public knowledge at all. To prove patent infringement, all you have to have is the patent and proof that the defendant's product/process falls within the patent's claims. You don't need to show any intent or knowledge to enforce a patent.

Basically, trade secret cases are a lot harder to prove than patent cases, especially if you can't find a former employee who might have stolen them. Patent monopolies are a lot more certain.

[cubby-t-bear.livejournal.com]

This would tend to suggest that we should only give patents where the societal benefit from removing all the needless duplication of research exceeds the penalty of giving somebody a monopoly on a useful idea or device.

At the extremes, if this is something a grad student can figure out in 3 days with an internet connection and a $1200k/month stipend, it shouldn't be patentable, but if it takes a research team 10 years at $100M development costs, we should

[cubby-t-bear.livejournal.com]

Please read that last sentence as if an ? were appended.

[cubby-t-bear.livejournal.com]

Also, remove the k from the grad student stipend. Or read it as 1.2k. Gah. Typos.

[edgehopper.livejournal.com]

Well, yes. That's supposed to be what the nonobviousness requirement in patent law does, but good luck getting judges and patent examiners to apply it in the optimal way for public policy.

[ecmyers.livejournal.com]

Where does the multiverse come into it?

[jethrien.livejournal.com]

Dunno. Mostly, I found the existence of the blog amusing.

[firynze.livejournal.com]

This? Is going to eat my brain for ages.

[jethrien.livejournal.com]

Sorry.

[firynze.livejournal.com]

The worst part is, I'm not even a lawyer and I think about these things.

...I actually started a novel some years ago that deals with the Bruce Wayne issues mentioned above. I have ISSUES.