Batman and Patents

[Be sure to read the update to this post in Law and the Multiverse Retcon #1!]

Batman’s use of gadgets developed by Wayne Enterprises poses an intellectual property strategy problem for the company.  Specifically, Batman’s public use of the inventions may actually prevent WE from obtaining patent protection.  Luckily, there’s a solution, albeit one that requires a little help from Bruce Wayne’s friends in the Department of Defense.

Batman is well known for his use of gadgets, many of which are based on advanced technology unavailable on the open market.  Some times these gadgets are explained as the product of Bruce Wayne’s own considerable intellect.  In other cases the gadgets have their origin with Wayne Enterprises R&D, perhaps with some modifications for Batman’s purposes.

Of course, Batman must always be ahead of the curve, so over time his gadgets have advanced to keep pace with technology.  The flip side is that over time gadgets and advanced technologies that were once exclusive to Batman fall into common use, perhaps sold by Wayne Enterprises.

And therein lies the problem, at least for gadgets that come out of Wayne Enterprises R&D.  Like many businesses, presumably Wayne Enterprises would seek to patent its inventions.  But Batman’s own use of the inventions in public may prevent Wayne Enterprises from obtaining a patent.  In the US, you generally cannot obtain a patent on something that was “in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.”  35 USC 102(b).  This is known as the “on sale bar,” and it is a strict statutory bar to patentability.  So if Batman starts using a new Wayne Enterprises technology in a gadget more than a year prior to the patent filing, then he may have ruined the company’s chance at a patent.

Of course, Wayne Enterprises could always file for a patent before the one year grace period is up, but that would mean disclosing the technology to the public 18 months later when the patent application is published by the Patent and Trademark Office. 35 USC 122(b)(1)(A).  At most Batman would have 30 months in which to use the technology before supervillains could look it up online and start copying it (presumably supervillains are not concerned with patent infringement suits).

As Bruce Wayne, Batman could also keep the Wayne Enterprises technology to himself: using it in public–and thus destroying patentability–but also ordering Wayne Enterprises R&D to keep the technology on the shelf.  In the end Wayne Enterprises still loses, whether because competitors can copy the unpatentable technology or because the company is prevented from selling the technology.

So Batman’s use of Wayne Enterprise technology puts Bruce Wayne between a rock and a hard place: either harm the company that indirectly finances his heroics by using the technology in public or concede a round of the technological arms race by allowing the technology to be disclosed in a patent.

You might be thinking that all this talk of “public use” is a bit silly.  After all, Batman isn’t exactly walking around giving public demonstrations of his latest gadgets, much less explaining how they work.  The patent laws, however, take a broad view of what constitutes public use.  It was long ago established that it is enough that a single instance of the invention was used by a single person in public, even if the device itself and its method of operation were not visible (e.g., a hidden piece of armor beneath Batman’s costume).  Egbert v. Lippman, 104 U.S. 333, 336 (1881).  The purpose of the on sale bar is to induce inventors to disclose their inventions early; if the invention works well enough to use it in public, then it works well enough to be patented.

There is an exception to the public use bar for experimentation, but it is a narrow one, and it may not be practical in this case.  In general the exception requires that the experimentation be done by or at the direction of the inventor as part of the development and testing of the invention.  City of Elizabeth v. Pavement Co., 97 U.S. 126, 134 (1877).  Although Batman often uses gadgets that are not yet fully developed, it is doubtful that Wayne Enterprises would call Batman to the stand to testify that he was using a new gadget at the behest of a Wayne Enterprises scientist in order to test its performance under real world conditions.

Furthermore, the experimental use exception also requires that the testing necessarily be in public, such as in the case of a new pavement material.  Id.  But most if not all of Batman’s gadgets could be tested in a lab or other testing facility.  It’s hard to argue that it’s necessary to test them on actual supervillains and criminals

But now you might be saying: if Batman keeps his use of the gadget secret, and the criminals he catches don’t understand or even notice the new technology, how will this ever be a problem in practice?  Who’s going to snitch?  I think there are two major possibilities.  First, Batman doesn’t always have the luxury of operating in the shadows.  Sometimes he works in public, and cameras and bystanders may observe new technology in use.  But the second and more serious problem is that Bruce Wayne himself and possibly other Wayne Enterprises employees (e.g., Lucius Fox) know of Batman’s use of the technology.  Would Bruce Wayne really be willing to break the law in order for Wayne Enterprises to make more money?  Or would he choose for the company to forgo a patent in order to keep crime-fighting technology secret a while longer?  I think he would probably choose the latter.

There is hope, however.  Patent applications that include classified information are not published until either a set time period has expired or the secrecy order has been lifted. 35 USC 181; MPEP 120.  But neither do such applications mature into patents; effectively they are held in limbo while they remain classified.  So if Bruce Wayne could convince, say, the Department of Defense to classify a given technology, then Wayne Enterprises could apply for a patent early on, Batman could use the technology, and once the time was right the classification could be lifted, the patent could issue, and Wayne Enterprises could make a lot of money.  Given that Wayne Enterprises does a lot of work for the US military, this is a plausible solution to the problem.

25 responses to “Batman and Patents

  1. Batman by his nature and demeanor probably agrees quite strongly with Justice Miller’s dissent in Egbert v. Lippmann (as do I, by the way) and therefore would have no qualms about claiming that there had been no public use of his crime-fighting inventions unless members of the public were actually able to learn the art involved.

  2. Extremely plausible! I like your solution, especially given the rate at which Batman’s personal technology stays ahead of the publicly-available curve. It’s worth noting that there are many references that confirm that Bruce Wayne maintains Wayne Enterprises R&D with an enormous budget, greater than comparable companies, and that on specifically described occasions he has had no compunction about shelving WE research that he or the superhero community finds essential, in order to keep it wholly private.

  3. Firstly, I love the concept of this blog. It is brilliant.
    But more importantly: I think Batman’s Bat-Gadgets (assuming a modern Bat, not Adam West) are never intended for Wayne Enterprises. Most of them have fairly limited use: grappling hooks, batarangs, and various spying tools. And almost none of them have any use a paranoid Bruce Wayne (we love him, but paranoid he is) would want random people having access to. Wayne Enterprises — I think — stays far away from weapons manufacture, except for the Bat-stuff and Justice League.
    But that’s a question: what’s the legal standing of the Justice League [note: I haven’t read your backblog yet, so this may have been addressed]

    • Wayne Enterprises has significant dealings with the US military. Wayne Steel and Wayne Yards produce ships for the US Navy. Wayne Aerospace makes military planes for the Air Force, among other things. So there is definitely a lot of weapons manufacture going on, though probably not a lot of stuff that private individuals would have access to. I don’t think Wayne Enterprises makes handguns, for example.

      For the connection between Batman’s gadgets and Wayne Enterprises R&D I was relying primarily on the Chris Nolan movies, which have most of Batman’s technology coming from Wayne R&D courtesy of Lucius Fox and the Applied Sciences division. As I mentioned, some versions of Batman have most of his technology being home-brewed, but that doesn’t present any interesting legal issues.

  4. Aaaaaand massive fail. Sorry, I missed the last paragraph somehow.
    Anyhoo, I think it’s still valid to say that he is unlikely to sell the more advanced, specialized personal weapons systems that constitute the utility belt.
    Sorry about that.

  5. This probably brings up another issue altogether, but are Batman and Bruce Wayne seen under the law as the same person. They should be, since they are the same person and everything. But how does the secret identity mess with that since only a limited number of people know.

    I know this brings up other ethical questions, but are Alfred and Fox under any obligation legally to disclose that Bruce Wayne is Batman unless specifically asked?

    In the Adam West series Batman signs a check (presumably as Batman but you don’t see the signature) for ransom money to Joker. So if he could sign a check doesn’t that make him his own person?

    This also brings about the possibility that the technology is stolen. What kind of effect would that have? Of course, it would look silly if Wayne Enterprises had to file a lawsuit against Batman for theft.

  6. As described here, the patent law is pretty clear on what constitutes public use, but who has knowledge of that public use? If Batman doesn’t leave his gadgets behind, who can really rat out WE to the patent office? Considering the large number of patents which get approved despite obvious and widespread prior art, I would think a real-life WE would be between a blob of gelatin and a not-so-hard place – like maybe tofu, or possibly a large pumpkin pie.

    Presumably they would already consider the possibility of supervillians looking over their patent filings, so they could actually seed false patents to plant information, but that’s just normal intelligence tradecraft there. The DoD secrecy route gets used all the time and is definitely the right way to go.

    • I address the “who would rat out WE to the patent office” question in this paragraph:

      But now you might be saying: if Batman keeps his use of the gadget secret, and the criminals he catches don’t understand or even notice the new technology, how will this ever be a problem in practice? Who’s going to snitch? I think there are two major possibilities. First, Batman doesn’t always have the luxury of operating in the shadows. Sometimes he works in public, and cameras and bystanders may observe new technology in use. But the second and more serious problem is that Bruce Wayne himself and possibly other Wayne Enterprises employees (e.g., Lucius Fox) know of Batman’s use of the technology. Would Bruce Wayne really be willing to break the law in order for Wayne Enterprises to make more money? Or would he choose for the company to forgo a patent in order to keep crime-fighting technology secret a while longer? I think he would probably choose the latter.

      And sometimes Batman does leave gadgets behind, either because he’s captured or because it’s an essentially disposable tool like a Batarang (perhaps made of a novel alloy).

      But, yes, ultimately the secrecy route would probably provide a nice solution to all of these problems.

  7. Actually, I think he files the patent more or less 364 days after the first public use, and that’s it.

    We’re in an age where technology develops very fast, and in the DCU it develops even faster. So most Bat-Gadgets will be “obsolete” (for the purposes of being unexpected crime-fighting tools) in a year; and pretty much all of them will be “obsolete” in 30 months. Two and a half years is forever in Earth-0 technology.

    BTW, thanks for the great read 🙂

  8. I’m going with two options of he either uses it and lies, or has enough connections with the DoD and PTO to get the applications under secrecy orders. In the former option, if Lucius knows Bruce is Batman and won’t tell, do we really think he’ll rat on a comparatively minor thing like first public use? No way – he has bigger secrets to keep.

  9. As a high technology company, Wayne Enterprises would be well-served to develop a comprehensive program of mining its internal research efforts for potentially patentable innovations. When such subject matter is found, steps should be taken to clearly document the invention, and to note the inventors and the date of invention.

    If Batman wishes to use one of these innovations in public, he would be well served to use said documentation to file a provisional patent application before such use. The provisional patent application is valid for twelve months, and preserves the priority filing date for a regular utility patent application filed within that year. Importantly, if no utility patent application claiming priority to the provisional is filed within the twelve month period, the provisional application is abandoned, and is never published. Wayne Enterprises can use this year to determine whether an investment in a utility application would be worthwhile without having to publicly disclose the details of their invention.

    Further, if a utility application is eventually filed, Wayne Enterprises may file the application with a request for nonpublication. Though such a request will prevent Wayne Enterprises from filing foreign patent applications that claim priority to the US application, it will keep the application from being published until such time as a patent is granted. This can help Wayne Enterprises balance the desire for patent protection with the inevitable public disclosure provided by the application, since the disclosure will only be made available *after* patent protection has been granted.

  10. Way to combine Batman and patent law … never thought that day would come. Anyway, Wayne’s conundrum presents one example as to why more companies are starting to consider obtaining IP protection under trade secret law.

  11. What both WE and Batman seem to be missing is that the Patent system was established, not to insure that monopoly profits could be gained, but so that creativity and innovation could be encouraged. Given the numerous arcs and sequels in the Batman story, it is clear that the lack of Patent protection has done nothing to stop WE or Batman from both creating and using new technologies. Thus it seems rather greedy to insist that an industry making money hand over fist should be granted monopoly rights in order to exclude competitors from entering the market.

  12. Expertly worded, but there is one comparatively new development in Batman’s universe (DC) that would make some of your arguments a little easier to counter, at least as far as the patents go.
    Since “Batman and Robin #16” (November 2010), which featured Bruce Wayne’s return to the role of Batman while also keeping Dick Grayson as the Batman for Gotham, Bruce has been open publicly that Wayne Enterprises and the Wayne personal fortune have been funding Batman’s exploits; he even held a press conference to say as much.
    Therefore, we can also assume that the very well paid Wayne lawyers would already be on top of finding ways to keep the patents secret whilst still retaining the rights for Wayne Enterprises and perhaps even turning a dime with military contracts.

  13. Not just military contracts, but possible intelligence and law enforcement as well?

  14. In last month’s Batman comics, Bruce Wayne disclosed to the public that his company has been providing Batman with his equipment. Not only does this touch on the question of Wayne tech being publicly used, but more importantly, since Batman is a public vigilante, does this not open up vicarious liability issues for Wayen Enterprises and Bruce Wayne by admitting their sponsorship of the actions of a vigilante responsible for numerous civil rights violations on top of frequent public damages?

  15. There’s another possibility left unconsidered, here, which is that Wayne Enterprises may avoid filing for patents, not only for secrecy, but for “fairness” reasons. After all, this is an empire run by a man who tackles gangs with machine guns, aliens with absurdly-destructive powers, and the occasional gorilla with little more than his fists and some rope.

    While unorthodox, and certainly almost unprecedented in the real world, it seems possible that Wayne’s business philosophy is generally to actively abandon monopolistic rights on the principle that they’re not really needed to conduct business and restrict what startup companies can do.

    So sure, any company could take a bit of bat-line, analyze it, and put out their own version. And more power to them for trying, since some division of Wayne Enterprises already has contracts to produce it and the factories pumping it out cheaply.

    Or…maybe they do patent it. What Gotham supervillain is going to take time from his weird compulsion to research a patent in enough detail that he can then ramp up production and create his own prototype? That’s a lot of motivation required when you could just steal some bird-themed artifacts.

    Peripherally related, someone may want to review the THUNDER Agents series from back-when. There seems to be a clear progression of technology in the background (especially among villains) which implies that the original inventions are being copied. In reading it recently for the first time, I wondered if there was any intention to discuss the leak, infringement, or whatever was causing the effect.

    • It’s my understanding that Wayne Enterprises does indeed patent many of its inventions. See the DC Wiki entry on Wayne Enterprises, for example, which mentions patents a couple of times.

      And why would Wayne Enterprises be interested in encouraging competition from startups? It’s a horizontally integrated company that covers every major industry. You don’t get that way by encouraging competition. And that leaves aside the “David’s slingshot” theory of patents, that they actually give startups strong leverage against established companies.

      As for why a supervillain would care anyway: some supervillains are capable of producing complex equipment. Mr. Freeze, for example. And beyond duplicating Batman’s technology, there’s a lot to gain from knowing its weaknesses. In The Dark Knight film, Batman moves to a different suit that is more flexible but weak against certain attacks. That would be very valuable knowledge to someone like The Joker, who is capable of orchestrating very complex plots even if he doesn’t use a lot of complex technology himself. Finding out just what Batman’s suit is made of and exploiting its weaknesses seems like something he might do.

  16. A very interesting and well written analysis.

    What about taking out very limited patents on the absolute core idea and then attempting to protect the major enhancements as trade secrets instead of through patents?

    If the core idea where narrow enough (or conversely incredibly broad such as the famous One-Click purchasing patent), it may be possible to apply for the patent immediately without giving away the key information which Batman would want kept out of the hands of his enemies and competitors.

    Now, this does mean that if someone could reverse engineer the entire final product they could then use that information freely, but that may be nontrivial, especially if key features of the innovation are implemented in software which can be obfuscated.

  17. Just keep it as a trade secret. If it’s complicated enough and relies on subtle details, knockoffs aren’t going to be effective. With his level of paranoia, they can also be rigged to destroy themselves upon tampering, which will get in the way of reverse-engineering.

  18. In Iron Man 2, the government pressures Tony Stark to make his Iron Man suit public, ie patent it. The sequel supposedly takes place within a year of the first so Tony could have applied for patent protection. This then supposedly would have made it illegal for Justin Hammer to make a knock off armor and try to sell it to the military. I guess Tony considered his armor a trade secret like cola cola, bubble gum or the Colonel’s secret recipe but then he had egg on his face when Whiplash came out with his Crimson Dynamo armor. Can Tony still file for a patent or is it too late?

    • As I recall the government wanted Tony to turn over the armor’s design to the government. Now, this doesn’t necessarily preclude a patent, and in fact the government can demand a compulsory license for any patent; it only has to pay a reasonable royalty.

      If it’s within the one year grace period since the armor was first used in public in the US (the public use of the prototype in Afghanistan wouldn’t count), then yes Tony could still decide to file for a patent even though others had begun to use the technology. Note, however, that pretty much everywhere else in the world does not have such a grace period (this is called an ‘absolute novelty’ requirement), so Tony’s patent protection would be limited to the US. In absolute novelty jurisdictions you have to file for the patent first, then begin public use or publication of your invention.

  19. How, exactly, would a challenger of WE find out that Batman had been using the invention? Presumably, Batman files off the “WE” logos off his gadgets, and the only people who know what gadgets Batman used are A) Batman and his inner circle (not likely to rat him out); B) the poor people of Gotham who happen to be caught up in a supervillain’s schemes, rescued by Batman (probably not paying attention to how Batman’s gadgets work, and not likely to rat him out); and C) supervillains defeated by Batman, (probably not paying attention to how Batman’s gadgets work, AND isolated from patent lawyers in general.). Batman may be creating a theoretical risk to WE, but practically, the risk is very, very low.

    • “How, exactly, would a challenger of WE find out that Batman had been using the invention?”

      A gadget left at the scene (e.g. a stray Batarang made of a novel alloy) or, in some cases, caught on surveillance video would be sufficient. It doesn’t matter that he “files off the WE logos” because independent invention is not a defense to invalidity. All that matters is that the invention was out in use before WE filed the patent application (unless Bruce Wayne wants to out himself as Batman in order to claim the exception for disclosures made by the inventor or one who derived the disclosure from the inventor; it seems unlikely he would want to do so).

      And some of Batman’s villains are pretty business savvy. I could see a villain like the Penguin auctioning off a piece of Batman’s body armor to the highest bidder, who could be another criminal looking for an edge or one of WE’s competitors.

      And again, even if there isn’t any evidence of this prior art, some versions of Bruce Wayne are too moral to allow WE to essentially lie to the Patent Office on his behalf, so he would probably prefer an approach that lets him stay on the up-and-up.

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