Inventions for the Ballet

Patent examiners in 1900 courtesy the IPO

Over the last few weeks I have been writing about intellectual property and ballet. I have concentrated largely on copyrights, rights and performances and trade marks because these are the rights that are most important to companies, theatres and dancers; but there are others such as registered and registered Community designs, unregistered design right and patents for inventions. I was therefore interested to see Lauren Godfrey's recent post "The wonderful world of ballet inventions". Lauren is Northern Ballet's publicity officer and her blog is fascinating. I read and enjoy everything she writes.

Lauren Godfrey - author of
The Wonderful World of
Ballet Inventions

As I said in "Branding and Ballet - Copyright and Rights in Performances" 3 May 2014 "intellectual property ("IP") is a portmanteau terms for the bundle of laws that protect investment in intellectual assets." The intellectual assets that patents protect are inventions. There is no statutory definition of "invention" in England though s.1 (2) of the Patents Act 1977 declares what is not an invention.  However, it may be surmised from s.60 (1) that an invention may be a new product or a new process.

Patent law in England goes back a very long way. In the 17th century the Stewart kings tried to dispense with Parliament by selling monopolies of various commodities. As you can imagine this and other money making wheezes of the sovereign were not very popular with the public and they did not raise enough money anyway. Eventually King James I was forced to convene Parliament in order to raise taxes. Parliament agreed to vote him some money but only on condition that the king abolished monopolies.

The Act of Parliament that implemented that bargain was The Statute of Monopolies 1623. The Act provided that:

"All [Monapolies] and all Commissions Graunts Licences Charters and tres patents heretofore made or graunted, or hereafter to be made or graunted to any person or persons Bodies Politique or Corporate whatsoever of or for the sole buyinge sellinge makinge workinge or usinge of any thinge within this Realme or the Dominion of Wales, or of any other Monopolies, or of Power Liberty or Facultie to dispence with any others, . . . , are altogether contrary to the Lawes of this Realme, and so are and shalbe utterlie void and of none effecte, and in noe wise to be putt in ure or execucion."

However it was subject to one proviso and that was

"That any Declaracion before mencioned shall not extend to any tres Patents and Graunt of Privilege for the tearme of fowerteene yeares or under, hereafter to be made of the sole working or makinge of any manner of new Manufactures within this Realme, to the true and first Inventor and Inventors of such Manufactures, which others at the tyme of makinge such tres Patents and Graunts shall not use, soe as alsoe they be not contrary to the Lawe nor mischievous to the State, by raisinge prices of Commodities at home, or hurt of Trade, or generallie inconvenient; the said fourteene yeares to be [accomplished] from the date of the first tres Patents or Grant of such priviledge hereafter to be made, but that the same shall be of such force as they should be if this Act had never byn made, and of none other."

That exception is the basis of our own and every other country's patent law.

A patent confers a monopoly on the manufacture, importation, stocking, marketing, distribution of use of patented products or products derived from a patented processes. In order to qualify for this monopoly, the invention has to be new. involve an inventive step, be capable of industrial application and not fall within any of a number of statutory exceptions. To apply for this monopoly the inventor has to pay quite a lot of money to a patent attorney to prepare the application. The applicant must describe the invention in sufficient detail for it to be made or used by someone with the relevant skills and knowledge ("person skilled in the art") after the monopoly ends. He or she must also pay for the patent office to search its records to see whether the invention or something close to it has already been invented. If, and only if the office is satisfied that the invention meets all the statutory criteria, then it will grant a patent. The cost of that process for the UK alone is around £5,000.  For  the UK and several other European countries it can be several times that amount. If protection is also sought in big manufacturing countries overseas like China, Japan, Korea and the USA, the total bill will be even higher.

After the patent is granted there are renewal fees to pay in each country. In some countries these actually increase with the passage of time. If the patent is infringed or its validity is challenged, proceedings in the Patents Court can cost hundreds of thousands of pounds. Even in the Intellectual Property Enterprise Court the costs could be many tens of thousands of which only £50,000 is recoverable from the losing party. Patents are granted for terms of up to 20 years from the date of filing. Once that term has expired anyone can work the patent. However if a court or Intellectual Property Office decides that a patent should never have been granted it can revoke the patent immediately whereupon anyone can make use of the invention.

According to Peter Bissell and Graham Barker who wrote "A Better Mousetrap: the Business of Invention" only a small proportion of patented inventions on the world's patent office registers are ever worked. Of those that are, only a few ever cover their costs.  Just a handful ever make serious money for their owners.

For all those reasons patents are of limited interest to companies, dancers or theatres. They are more likely to be of interest to companies that make flooring, footwear, textiles or perhaps to broadcasters and electronics manufacturers. All the patents and patent applications in Lauren's post will have expired or about to expire by now (if indeed they ever ran their full term) except for the high-heeled bifunctional pointe shoe. However, you never know.  I will certainly mention patents in my seminar on IP and ballet.