Introduction
As with any patent, full disclosure of the design and working must be articulated so that it is clear what is being protected. This full disclosure also become public record so that anyone can then find the patent if they know the number. This becomes an interesting dilemma for magicians who desire to protect their secrets and yet to legally make sure no one can copy them for manufacture, they would need to patent it. It has been said that Houdini never patented his illusions or magic for this very reason although he did patent a diving suit.
An idea cannot be patented but rather, you patent a specific implementation. You will see many examples of patents being issued for similar inventions such as the drawer box. The SS Adams Company has a patent of the cardboard dragon mirror box that they produce. This doesn’t necessarily mean that they own rights to all mirror boxes, but instead that specific implementation of a mirror box.
You will hear the term “rights” being used for magical designs such as in magic books where the author might say “I reserve rights for the commercial manufacture of the magic contained in this book.” In many cases, this is really a point of ethics rather than law, in that, it is a patent which would give this legal right to limit the manufacture of the implementation. Interestingly enough an inventor essentially gives up the ability to patent an invention by publishing or disclosing the invention to others prior to submitting an application for a patent.
While you can copyright written material or even some specific performance attributes, the copyright provides no protection to the idea being presented in terms the manufacturing and marketing of a product. The copyright merely protects the work itself from being copied. For example, the copyright of plans for a magic illusion would protect someone from copying the plans and reselling them but not from the manufacture of the illusion presented. A patent would be needed for this.
You will also hear people in the magic business refer to “performance rights” in which the “inventor” grants someone the ability to perform a particular illusion or trick. It is not clear there is any legal basis, however, for such performance rights. Under copyright law, specific choreography and pantomimes can be copyrighted, as well as scripts and music. Therefore, a specific performance method in terms of the words used or dance steps could be copyrighted but this is not usually what is meant in the magic industry by performance rights.
Patent Basics
A patent gives the patent holder “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.
Patent Claim
The patent claim is the specific part or aspect of the invention that is being patented. At least one claim must be present in a patent and often times more than one. This is why there are so many similar patents since it is just the unique aspect of the invention that is covered by the patent.
Patent Exclusions
While the rules are more complex than what is stated here, the following describes limitations of what can be patented. Inventions cannot be patented if:
- The invention has been previously patented prior to the applicant’s invention or application date
- The invention was known or used by others in the US or described in any publication prior the applicant’s invention
- The invention was described in any publication or was in public use or sale in the US more than one year prior to the patent application
- The differences between previously known or patented inventions is obvious
Utility Patent
The utility patent covers the specific method and working of the invention and is the most common type presented in this book. Utility patents may include “any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof.”
Design Patent
By contrast, a design patent covers the ornamental features and look of the items rather than its function. The US Patent Office (USPO) defines it as:
A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture.
Design patents are designated with a “D” as the first character in the patent number. These are typically very brief in terms of text as the illustration provides the essence of what is patented.
Patent Duration
In most cases, those that go to the trouble and expense of patenting their inventions, get patent protection for a term of 20 years from the time of the patent application. Provisional patents provide 12 months of protection and can be used as a first step in obtaining a full (non-provisional) patent. Design patents typically receive 14 years of protection.
Patent Protection vs Trade Secrets
A Trade Secret is protected in a manner entirely different than a patent. A trade secret is not openly disclosed and relies on people not knowing the secret. Of course, if the holder of the trade magic secret wants to sell their invention they would to rely on contract law and Non-Disclosure Agreements (NDA). If the inventor could prove that the buyer of the trade secret violated the contract terms by disclosing the secret to another party, they could sue for damages.
The problem with a trade secret though is that once the secret is revealed to the general public, there is no legal protection. The Coca-Cola formula is protected by such trade secret laws, however, the buyer of a can of Coke doesn't discover the secret as would the purchaser of a magic trick or illusion. Trade Secret law could work well for large scale illusions where the inventor only allows a select group of individuals to purchase the rights with various contract and NDAs as part of the agreement.
However, trade secret laws would not protect reverse engineering of the invention. So, someone seeing the illusion might formulate how it works and come up with their own version. It may or may not be the same secret, but the trade secret laws will offer no protection in either case.
Related eBook:
{mos_fb_discuss:12}