Jan 9, 2023Legal
Peeling Back The Layers Of Inventorship In 'Glass Onion'

In this article for Law360, partner Tasha Gerasimow, with co-author David Gerasimow, assesses the Netflix movie "Glass Onion: A Knives Out Mystery" and how it relates to the current state of the law of intellectual property ownership, as well as the underlying documentary and evidentiary issues.

"Glass Onion: A Knives Out Mystery" provides audiences with a comedic murder mystery sequel. And, for the patent-minded among the audience, this Netflix sequel also presents numerous opportunities to assess the current state of the law of intellectual property ownership as well as the underlying documentary and evidentiary issues.

For those who have not seen the Rian Johnson-directed movie, the plot centers around a weekend reunion at the isolated island compound of a billionaire tech entrepreneur, who is joined by members of his eclectic inner circle of so-called disrupters, each with the motive and opportunity to commit murder.

As the plot unfolds, we learn that some of the group's most bitter disputes relate to the conception and ownership of intellectual property fundamental to Alpha technology, which we are told is some sort of groundbreaking artificial intelligence tech. The film then proceeds as a classic whodunit and is a more than watchable holiday treat.

In the film, which seemingly takes place in summer of 2020, we learn that conception of the relevant technology took place about 10 years ago, i.e., around 2010.

As a refresher, the first-to-file provisions of the America Invents Act went into effect on March 16, 2013. Along with it, the U.S. embraced a first-to-file system in which it does not matter who conceived of an invention first — rather patents are awarded to the first to file.

Thus, while the relevant patent filings alluded to in the movie could have been filed pre-AIA or post-AIA, depending exactly on when they were filed and their subject matter scope — we assume for the purposes of this whodun-invent-it, pre-AIA law governs.

Under pre-AIA law, Andi, one of the disrupters would be an inventor — and patent owner, absent an agreement to the contrary — if she first had the idea for the Alpha technology that was definite and permanent enough so that one of ordinary skill could understand the invention.[1]

But, as accurately conveyed in the movie, her word alone would not suffice — in other words, Andi's testimony about inventorship must be corroborated by independent evidence.

And when Andi's closest friends failed to corroborate her invention claims during trial, the original version of a napkin containing an alleged disclosure of the invention becomes critical evidence to support her claims.

But, would a back-of-the-napkin sketch be enough?


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