From China Intellectual Property Magazine, a interesting discussion of the IP problem facing magicians who don't apply for patents on their tricks. Well, it's the same problem facing magicians in other countries. The author of the piece, Lu Zhouhuang, discusses the dilemma facing celebrated magician Liu Qian (he of the marching goldfish--he says, BTW that they're all fine, happily swimming away). Noting that Liu Qian didn't obtain patents for a trick that was widely viewed and dissected last year, he writes,
In China, holders of magic patents enjoy the exclusive rights of prop production, sale and performance. However, patents must be obtained by “disclosure.” Cheng Yi said: “Keeping secrets is the supreme law governing the magic community, since disclosure means death. Very few magicians will publicize their tricks.”
From the legislative intent of China’s Copyright Law, many experts believe that magic should be protected. Broadcasting, downloading and disseminating magic performances without permission from related right holders are undoubtedly violations, but simple exposure behaviors don’t constitute a violation of copyrights. This raises the question of whether revealing a trick, perhaps coupled with commercial performances, might violate a “business secret.”
Thus, if you can figure it out, and some folks obviously can, the magician may not have a IP remedy at law. Recall that Defenders episode some months back. She (and her lawyer) may have to proceed under some other theory of the case.
I am happy to report that under the terms of the settlement agreement, Sean Bogunia is barred from selling products which incorporate my patented design elements, unless he either: 1.) removes my design elements from the current configuration of his iThread, Deck TR, and iThreadX products, so that they do not infringe; or 2.) pays me an agreed upon royalty payment for each such use and acknowledges that any such products incorporate Yigal Mesika Magic technology in the sales literature and/or trade dress of any such products.
So what do patent attorneys say about the significance of this suit and its settlement? Philip Brooks, who writes the Patent Infringement Updates blog, has posted a commentary here. He says in part,
After months of heated litigation, Yigal Mesika has settled his patent lawsuit with Sean Bogunia and Sean Bogunia’s Ultimate Magic at the Federal District Court in Los Angeles. In the history of magic, Yigal Mesika v. Sean Bogunia et al., CV09-1580 JFW (C.D. Cal. 2009) stands as a significant milestone in that it is the first case to ever prevent imitation of a magician’s device for performing tricks.
Considering Mesika’s success in protecting his invention, magicians will certainly look upon his case in the future as a model for navigating the convoluted field of intellectual property law to protect their magic devices from patent infringement.
From Milord & Associates, an L.A. law firm, comes the news that a magician has filed a patent infringement lawsuit based on a claim that his "miniature spooling apparatus" patent has been infringed. The plaintiff magician, Yigal Mesika, apparently sells a product based on the patent, something called "The Electric Spider Pen." The defendant is Sean Bogunia. Says blogger Milord A. Keshishian, "Defendant Bogunia sells an “iThread” product which allegedly infringes on one or more claims of the ‘609 patent. In addition, Defendants are set to release a modified product called the “iThreadX,” which is also believed to infringe."