Researched by Hannah Boehm
Since joining the intellectual property (IP) profession, I see IP crop up in many of my favourite TV series, with some depictions more accurate than others. For those of us not working in IP, media can often be a major source of knowledge. So, I thought I would share some of my favourite depictions of patents in popular TV and what they got wrong.
Suits: Patent Pitfalls in “The Donna”
In Suits Season 6, Episode 16, the legal drama ventures into patents, as Donna and her co-inventor try to patent her virtual duplicate “The Donna.” The invention is similar to a pre-existing patent, putting the virtual Donna’s future in jeopardy. Donna receives advice that she needs to reduce the similarity between her invention and the existing patent to below 30%, or she’ll have to make a deal with the competing patent holder for an exemption that would allow her to apply for a patent.
This episode presents a flawed portrayal of a patent’s novelty requirement. Let’s see what went wrong.
The 30% Similarity Myth:
The advice Donna receives regarding a 30% threshold for patent applications is entirely fictional. There is no such rule in patent law. In reality, patentability isn’t determined by a “similarity percentage” but by a strict novelty requirement. An invention must be both new and inventive over existing prior art. The issue isn’t about getting a percentage lower than a set threshold but whether the invention introduces something sufficiently original compared to what’s already out there.
An Exemption from a Patent Holder Doesn’t Bypass the Novelty Requirement:
Donna is also wrongly advised that she could strike a deal with the competing patent holder to allow her to apply for her patent, even if the similarity is still over 30%. Only the Patent Office assesses patentability. It is them Donna needs to convince that her invention is new and inventive.
While Suits takes creative liberties with patent law, the takeaway for inventors is to do your homework before applying for a patent. You are likely already aware of similar products that are on the market, but conducting a formal patent search may help you identify competing patents. When you are ready to apply for a patent, a patent attorney can help you draft the application to maximise your chances of success.
Orphan Black: Patent Pitfalls in Excluded Subject Matter
In the Season One finale of Orphan Black, the concept of patenting human clones takes centre stage. The show follows a group of illegal human clones with one of the clones discovering a hidden message in her genome: “This organism and derivative genetic material is restricted intellectual property.” The clone concludes that her genetic sequence is patented and owned by Dyad Institute, and that the clones themselves are intellectual property.
While making for a dramatic cliffhanger, this conclusion is fortunately (for the clones and for us in the real world) false.
While morality isn’t typically considered in IP law, the Patents Act of 1977 does specify that “a patent shall not be granted for an invention the commercial exploitation of which would be contrary to public policy or morality.” Specifically, Schedule 2A of the Act excludes “processes for cloning human beings” from patentability, meaning that the genetic information the show refers to could not be protected by a patent.
Another key principle relevant to all patent holders is overlooked: patents run out. In the UK (and most other countries) a patent only protects your monopoly for 20 years from filing. Since the protagonist of the show, Sarah Manning, is in her 30s by the time the events unfold, any patent on her genetic sequence would have been long since expired.
Unlike in this dystopian reality, not everything is patentable in the real world. Patents are designed to protect technical solutions to technical problems, and there are restrictions on certain types of inventions, including processes like human cloning.
The Dropout: Patent Pitfalls in the Theranos Scandal
The Dropout dramatizes the rise and fall of Elizabeth Holmes and her biotech company, Theranos. Holmes, a Stanford dropout, claimed to have invented a revolutionary
technology that could conduct a wide range of medical tests using just a few drops of blood. The company secured numerous patents for the technology, but it was later revealed that Holmes had falsified results for investors, and the invention did not work as promised. This true story serves as a cautionary tale, especially for investors, about the risks of blindly trusting patents.
Although less exciting, most innovations are achieved incrementally, not as dramatic breakthroughs. The show highlights that, while patents may be granted, they do not necessarily prove that an invention works as advertised. In the biotechnology field, patent applications may have enablement requirements, but that doesn’t guarantee the technology’s effectiveness.
Equally important is patent literacy among investors. Due diligence before investing is critical, especially where IP is a company’s key asset. Reading through Theranos’ patent portfolio, and their struggles to get many of their applications granted, would have gone a long way in helping investors avoid poor decisions. While patents can, and do, add credibility to an invention, their presence should never be relied on as the sole indicator that an invention works or is a sound investment.
Although fun to see depictions of IP in media, don’t rely on these representations for your advice. Navigating the complexities of IP law in real life can be complicated. To avoid any dramatized disasters worthy of their own TV show, and to learn more about how Albright IP can help you secure, protect, and commercialise your ideas, contact via email, by telephone: +44 (0) 1242 691 801, or using the form below and they will be happy to advise and guide you.
