C3 Patent and Intellectual Property Law

Jun172009 | Steve O'Donnell

Patenting illusions II

Do you have an illusion that could be patented? If so, should you patent it?

Magic inventions probably fall into one of two categories, gaffs and methods. Both may be patentable. The first thing to consider is whether your new illusion is really new. A new Topit design might be patentable, but stringing together an old card force with an old billet trick, even though no one has ever thought to do it in that way before, is probably not patentable. That doesn't mean that a patent for a card force is necessarily impossible, but it may be difficult to convince the patent examiner of that. On the other hand, since much of magic is not widely known, it might be difficult for an examiner to find prior art that would kill an application. Keep in mind that hiding information from the patent office may result in a patent that is ultimately unenforceable and expose you to civil liability if you try to enforce it.

If you do get a patent on your trick, what do you do with it? There are a few ways of making money from a patent. One would be if it was such a great trick that people would pay to see you perform that one trick. I have a hard time imagining an act that is one trick long, although shady mentalists have been bilking money out of people with little more for centuries. Another way of making money would be to either license the patent or to sell it outright. Licensing is really similar to what is done already under the Magician's Code model. A person would buy a packet trick and get a license to perform it. Unlike the Magician's Code model though, someone that learns the secret without paying for it may be liable for patent infringement damages and the person that shares the secret could be liable for indirect infringement.

Discovering that someone is infringing a patent is a different issue. A patent covering a intricate gaff is going to be much easier than discovering that someone is infringing a patent covering a method of performing an illusion. The first case likely would involve one of a fairly short list of companies, while the second could be someone performing at a birthday party.

Other than the money that could directly be made from a patent, there might also be a secondary value to a patent on an illusion if it increases the inventor's visibility and reputation in the community. An instructional DVD, seminar, or performance poster will likely get more attention if it rightly declares that the inventor is such a creative innovator that the US has granted a patent to his illusion(s).

Whether or not it makes financial sense to invest in obtaining a patent for an illusion is something that needs to be determined on a case-by-case basis. In addition to getting a patentability opinion from a patent lawyer, the inventor might also want to discuss the plan with a business manager.

I would love to work on magic patents. If you think you have something novel, please let me know and I'll see what I can do for you.

If you are a member of the Magic Cafe [http://www.themagiccafe.com] these is a great list there of magic patents in Secret Sessions, search for “Magic Patents - a list.” You'll need 50 valid posts, I think, to access that forum. . . which if you've read this far probably isn't a problem.