An idea can’t be patented, but it can get you thrown in jail

Patents and terrorism as two sides of a very bent coin

If you’re a lawyer, as am I, you’ll be familiar with the idea-expression dichotomy. It is a principle of copyright law dating from the 1960s, which says that copyright law fundamentally protects only specific expressions of an idea, but not the idea itself.

Copyright protection has recently been the subject of a court case involving the musician Ed Sheeran™, who, at its conclusion, stated:

before going on to add:

I feel like claims like this are way too common now and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there’s no base for the claim. It’s really damaging to the songwriting industry.

There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That’s 22 million songs a year and there’s only 12 notes that are available.

He’s not wrong. Except that the notes do repeat in higher or lower octaves, so it’s a bit more than just 12. The first two notes of Bali Ha’i are the same, but an octave apart, before the third lands on a major seventh. So, they sound different.

Some songs might be as good as identical to each other, but for the input of record producers, part of whose job must be to try to individualise musical motifs and riffs that would otherwise fall victim to claims of plagiarism. Interestingly, when the stark, nay exact, similarity between Rod Stewart’s The Killing of Georgie (Part II) and the Beatles’™ Don’t Let Me Down was pointed out to John Lennon™, he dismissed the observation with, “I guess the lawyers must’ve missed that one.”

The lack of protection in copyright is a principle that extends into another area of intellectual property, that of patents. The idea—if you’ll pardon this use of the expression¹—of a patent is to encourage innovation. An inventor devises a new way of doing something, which takes corporeal form (nowadays, it can also be a process, or even a botanic alteration of a seed or plant). They then describe how the invention works, accompany that description with technical drawings, and submit their patent application to a patents authority, which will accord a patent based on three criteria: it must be a machine, process, manufacture or material composition, or an improvement to such things, that (1) is discovered or invented, (2) is new and useful, and (3) meets the statutory conditions and requirements to qualify for a patent.² But the idea that gives rise to the invention cannot be patented. So, for instance, an idea such as eliminating the dead point on the crank of a bicycle pedal is not patentable. But devising a drive mechanism that is elliptical, rather than circular, in order to eliminate the dead point, that is patentable.

Something is therefore patentable if it comprises what is known as an inventive step. And having an idea is not regarded as an inventive step. More to the point, who it was who exactly invented the telephone, television, and the lightbulb will be argued over to the end of patentability. So, next time you’re on LinkedIn® and you want to tell someone their article is insightful by clicking on the wee electric lightbulb, think again: contrary to the lightbulb itself, their insight is legally worthless. So, what do you think of that?

There you are, contemplating the dead point on your bicycle’s crank and it occurs to you that, if the drive wheel were only elliptical in shape, that would do the job. But in order to patent it, you must be able to describe it and draw it in such a manner that it can be reproduced. In other words you have to reveal your secret in order to get your patent. And, if you can’t develop a prototype, you’re unlikely to succeed, aside from having to have considerable financial resources to pay patent lawyers, who work in a highly specialised area of the law, to make, and succeed in, and defend the patent application. What happens next in many, many cases, is unfair: either the idea remains a dead duck in the water, or you take your idea to a bicycle maker, and they steal it, patent the device and take all the credit. Now, I’ve no idea if that’s what happened in the case of the elliptical bicycle drive, but it happens a lot. It’s even a standard term in employment contracts: if you invent anything, it’s ours.

Ironically, the innovation that patents are supposed to encourage, acts, through a series of machinations and law suits and tricks and pure theft, to stifle innovation. If a small enterprise patents an invention, a large corporation just needs to tweak it a little to claim ownership of virtually the same thing, swamp the market with their version and put the small fry out of business. Just having an idea is not enough to get you a foothold on the capitalist ladder. You must have the means to put it into production, market it, protect it, sue opponents and pay the lawyers. These are terms and conditions of patentability that you will not find in any legal dictionary. The law simply lays down rules. How they get enforced has nothing to do with the law, that is a matter for lawyers.

A patent is ultimately like a gated community. Those inside it have the freedom to exploit those outside it, but those outside it may not put so much as a foot on the protected territory. At least for a while: patents expire, so that the advance in knowledge then becomes freely available. However, it’s interesting that the recipes for Coca-Cola®, Marmite® and Drambuie® (not all in the same glass, thank you), have never been patented. Instead, they are kept locked away in very secure safes. So much for the benefits vaunted by patents.

In short, patents involve the publication of secrets, but the technical drawings that go with them can be, shall we say, sparing in their secretive detail: see the patents for the new JetZero® airliner, for instance, which bear more of a resemblance to the instructions for a plastic Airfix® kit of the aeroplane.

Hardly reproducible detail, eh?³ But ideas, on the other hand, cannot be patented. Ideas must take a specific expression in order to benefit from either copyright or patent protection.

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So, why is it that the mere idea of opposing genocide can get you thrown into prison? Well, it’s not unlike the gated community effect of patents. Ideas that will earn money for capitalists are given a status that renders them worthless until the inventive step is taken, which makes them ripe for theft if the idea is thought up by a little person. But if a little person has an idea that vaunts justice and fairness but threatens the ability of capitalists to exploit their own inventive steps, then the idea is not worthless at all. It is a dangerous idea, and it needs to be stopped from spreading at all costs. That is very conveniently done by classifying it as something like terrorism—now there’s a handy phrase. Terrorists are people who terrorise the general community in the advancement of an ideological cause—like 83-year-old grandmothers, such as Reverend Sue Parfitt. So, anyone who has an idea that threatens capitalism is thereby acting ideologically, and that must be combated. Something that is worthless in the world of patents becomes dangerously explosive elsewhere.

Image: Sue Parfitt being taken into custody on 5 July 2025 for sitting in a camp chair with placards in support of Palestine Action, a terrorist organisation in the United Kingdom. She was hereby elevated to the status of heroine, albeit not a suffragette.

The ideas that are worthless for the purposes of legal protection nonetheless expose those who hold to them to incarceration and, in some places, even state-sponsored execution. In some ways, there are ideas that are more dangerous than the patented invention of dynamite. That is just one more example of how our world has turned things on their head. Even Alfred Nobel’s prizes cannot set that to rights.

1. I am given to wonder whether anyone has at any time tried to patent the idea of a patent.

2. “Black’s Law Dictionary,” edited by Bryan Garner, tenth edition, page 1,301: patentable subject matter.

3. Apologies to mentour.com for this screenshot.