The Lego movie. Is. Awesome. And certainly much more fun than revising for the EQE pre-exam, which is what I probably should have been doing with my Saturday afternoon (here’s hoping the claim analysis section is all about co-operable building blocks). There are thrills; there are spills; there’s some beautifully poignant humour. It’s the Matrix meets Toy Story 3.
Enough advertising: the reason I get to write about the Lego Movie here is that there’s a delightful little patent sub-sub-sub-plot involving Lego Batman. Which gives me the perfect excuse to assess the IP reference for our IP Hit or Miss series, in the interests of IP education, you understand. The potential ‘spoilers’ are so minor as to be barely worthy of the word, but if you don’t want to see a few paraphrased words from the movie, you may wish to look away now.
The plot calls for our team of heros to build a submarine. An over-excited Lego batman exclaims “A Bat-submarine!!”, before turning to the camera to mutter “patent pending”.
Oh Batman, Batman *shakes head in disappointed fashion*. What have you done?
Firstly, I’m not sure a patent is really what you want here. The ‘Bat’ part of your ‘Bat’ submarine is really just the branding, so I think what you want is a trade mark. “Bat-submarine TM” would have been more appropriate.
But let’s give Lego Batman the benefit of the doubt, and assume that in the few seconds that elapsed since he came up with the Bat-submarine, he managed to conceive of exciting, patentable Bat-features to include in it. Something involving lasers, I reckon.
Well, Lego Batman, now we have some other problems to address.
For starters, you’ve just gone and disclosed your Bat-submarine idea to the movie-viewing audience before you’ve filed a patent application. We’re going to let you off the hook this time: you’ve disclosed the general idea of a Bat-submarine, but you haven’t divulged any of the specific inventive ideas that we are assuming will be the subject of your Bat-patent application(s). So, your over-excited exclamation doesn’t amount to an enabling disclosure of the features you might want to patent, and won’t prejudice your future patent applications. Phew. But watch out – you might not be so lucky next time.
Next up, in muttering ‘patent pending’ to the viewers, you’re effectively ‘marking’ your Bat-submarine as being the subject of a pending patent application. ‘Marking’ goods with a patent application number or a patent number is good practice as it informs third parties that you have patent rights, and can prevent those third parties from claiming that any infringement was not ‘knowing infringement’. However, using ‘patent pending’ alone is not sufficient; you also need to refer to the patent application number(s) when you mark your Bat-submarine.
And this, Lego Batman, brings us on to the main problem. You haven’t filed a patent application yet! This means that the Bat-submarine is not the subject of a pending patent application, and you are marking it falsely. This can get you into trouble, and if someone brings a false marking suit against you, you could end up being fined a lot of money (probably just a drop in the Bruce Wayne financial ocean, but think of all the capes you could have bought with it!).
So, with a heavy heart:
Verdict: IP mi….
How could I be so silly. This is Batman we’re talking about. He’s a superhero. Clearly, he wrote his patent application, hopped in the Bat-mobile, dropped it off at the Lego patent office and returned to the movie scene all in the interval between neighbouring movie frames, so that we, the viewers, didn’t see it happening!
Emily Weal 24 February 2014
This article is part of an occasional series of articles that takes a light-hearted look at IP as it appears in the media (films, TV, news reports etc) as an excuse to talk about different IP topics. A vague rating of “IP hit or miss?” may also be given depending on how well the particular IP concept has been incorporated into the media in question.
Previous “IP Hit or Miss?” article – the Graphic novel “Code Monkey Save World“