Whose idea is it anyway? New approaches to the protection of "mere ideas".

A man approaches a business owner with an idea for a perfume, which he explains will remind wearers of being at the beach. The business owner derides the man for his ludicrous idea, but months later begins selling a perfume intended to remind wearers of the ocean. Whose idea was it? While the theft of such an idea was parodied on the television show Seinfeld, it is an occurrence that recently has begun spawning an increasing number of lawsuits.

Of course, all intellectual property law revolves around the desire to provide protection for innovative ideas, but traditionally, ideas are protected only when they find a tangible application or result and not as "mere" ideas per se. Ideas, standing alone, reflect or consist of ephemeral mental processes or states and are accordingly difficult to protect. US patent law, for instance, explicitly bars patenting of "mere ideas," requiring instead that the idea be applied to produce a useful apparatus, composition, or process. The copyright law likewise does not purport to protect an idea as such, but only protects the expression of the idea. (1) Unlike novels, computer software, or works of art, ideas are not always concretely expressed in a readable form.

Similarly, even an original idea that has been written down or otherwise expressed might be modified or added to sufficiently to render a cause under the Copyright Act difficult to prove. To make things even worse for a party seeking to protect his idea as such, causes of action based upon state contract laws, which might have aided the originator of a bare idea when a potential business partner or buyer allegedly co-opted the idea, have often been held to be preempted by the Copyright Act. (2) This situation often left the idea man with very few avenues for relief, because relief under the Copyright Act was either very difficult to prove or unavailable, and state law causes of action were preempted. However, a recent appellate court decision has held that state law causes of action are not preempted in some alleged idea theft scenarios, thus opening the door for idea theft lawsuits. This article discusses the background and current case law surrounding the protection of "mere ideas."

"Coming to America"

A large number of idea theft cases have emerged from the entertainment industry, possibly due to the …