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Lemley Responds: Defending the Myth of the Sole Inventor

Written by Mark Lemley
Professor of Law, Stanford University
Founding Partner, Durie Tangri
Posted: October 9, 2011 @ 8:00 am
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John Howells and Ron Katznelson have written a critique of my paper The Myth of the Sole Inventor. Perhaps you’ve read it, and perhaps it looked – at first glance – persuasive.

But if there is one thing I have learned in thirty years of arguing for a living (first as a debater, then as a lawyer), it is this: when an opponent has you dead to rights in an argument, they don’t feel the need to result to ad hominem attacks. So the fact that the Howells-Katznelson paper is chock full of insults and personal attacks against me ought to give you a bit of pause. Maybe it is enough to make you take a closer look at exactly what they say.

When you take that closer look, some oddities start to appear in the Howells-Katznelson argument.

  • Maybe you’re a bit puzzled by the fact that Howells and Katznelson refer to the history of science literature I discuss as embodying a “naïve” view of invention; surely a literature devoted to studying the actual context in which an innovation occurs involves a more, not less, sophisticated understanding of those inventions.
  • Maybe it strikes you that since my paper walks through 33 different inventions, a critique that looks at only four of those inventions, and agrees with my assessment of the history of two of those four, doesn’t really disprove my claim that the most significant inventions were often cases of sequential improvement or simultaneous invention. [While Howells and Katznelson discuss my analysis of steam engines and automobiles, they seem to agree that those involve cases of sequential improvement and simultaneous invention, respectively. Indeed, in those sections they seem upset primarily that I am telling a story that they say everyone already knows]. Howells and Katznelson make no effort to suggest that the telegraph, or the telephone, or the computer, or any of a range of other technologies I discuss were not cases of simultaneous invention. And in one of the two cases in which they do actually try to challenge my story, Edison’s light bulb, they ignore the evidence of Swan’s simultaneous, competing light bulb.
  • If you know something about the history of the patent system, you will be completely perplexed by Howells and Katznelson’s discussion of steam engines. Their primary complaint about my discussion of Boulton and Watt is that I don’t focus on the claims of the Boulton-Watt patent. There’s a pretty darn good reason for that: patents in the 18th century didn’t have claims. And indeed the Boulton-Watt patent is no exception. Howells and Katznelson appear to have been misled by the fact that the paragraphs of the specification were numbered into thinking that they must have been claims in the modern sense. But it’s nothing short of bizarre to suggest that my article is “not a serious work of scholarship” because I failed to focus on a patent claim that didn’t even exist.

Hopefully these oddities are enough to make you think twice before condemning me to the academic fringe. Maybe you’ll even think “I should read Lemley’s article before I decide who’s right.” Howells and Katznelson really, really don’t want you to do that. They keep trying to warn you away: the article is really long, they say. It has all those footnotes, they say. And it’s not a serious work of scholarship, they say. They seem very invested in signaling to you that you shouldn’t bother to read my article.

There’s a reason for that. If you actually read my article you will find that I simply don’t say the things they claim I say. The basic refrain of the Howells-Katznelson paper is that (1) I think Edison and the Wright brothers didn’t make inventive contributions, and (2) I diminish their contributions in service of my “radical” anti-patent agenda. With all due respect, I don’t see how anyone who read the whole paper could think I said any such thing. There is no question that Edison and the Wrights made useful contributions to the world. The point of my article is that they (and the many other iconic inventors I discuss) did not act alone. They made important but incremental contributions on the shoulders of many other inventors advancing the technology, and they often did so at about the same time as other, lesser-known inventors. Nothing in Howells-Katznelson casts any doubt on those facts.

My point in reciting this history is emphatically not to attack the patent system. To the contrary, I go to great lengths to defend it. Indeed, my paper isn’t really about the patent system at all, but about the theories that underlie that system – the stories we tell to justify having a patent law. The point of my paper is to suggest that our theory of patents needs to take the realities of invention into account, and to focus not on encouraging a mythical sole inventor but on the rather more complex realities of multiple inventors both building on and racing against each other. Perhaps that is “radical,” as Howells and Katznelson suggest. But it shouldn’t be.


About the Author

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School, the Director of the Stanford Program in Law, Science and Technology, and the Director of Stanford's LLM Program in Law, Science and Technology. He teaches intellectual property, computer and Internet law, patent law, and antitrust. He is the author of seven books and well over 100 articles (and counting) on these and related subjects, including the two-volume treatise IP and Antitrust. Professor Lemley is also a founding partner in Durie Tangri, a law firm specializing in high-tech and intellectual property matters, located in San Francisco, California.

82 comments
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  1. My point in reciting this history is emphatically not to attack the patent system. To the contrary, I go to great lengths to defend it.

    Sorry – not buying it.

    Lemley deserves the ad hominem. The phrase “with friends like this, who needs enemies” comes to mind.

  2. William-

    I don’t it is fair or accurate to say that Lemley deserves ad hominem attacks.

    Just wonder, did you read Lemley’s article? It does seem to read as if it is a defense of the patent system. It doesn’t defend the patent system by using the popular rationales, but it does conclude that we achieve great innovation faster with a patent system than we would without a patent system. I’m not sure why that seems anti-patent to some.

    -Gene

  3. I can see why many people would be upset. For starters, it attacks the traditional rationales. That means that many of the pro-patent arguments based on those theories have to be rethought. The replacement rationale Lemley provides is also a lot more complex than the traditional rationale, making it not something that you can easily spout off as ‘common sense’, something many arguments on patents seem to rely heavily upon. In addition to this, it makes many of the ‘heroes’ of the patent system seem far less significant. Finally, very little research has been done to test this theory, and if it holds up, there would likely be good reasons to change the status quo. After all, it would be an incredible stroke of luck if patent law designed under the assumption of one theory lined up very well under another, drastically different theory. Even if studying this theory resulted in compelling evidence for a patent system that is generally stronger, it might also advise us to weaken it in certain regards, and this uncertainty can be scary to those who are afraid of change.

  4. Those who can, do –

    Those who can’t teach, or, apparently try to lecture the rest of us

    Lemley is a perfect example of this. His papers reveal a glaring misunderstanding of how the real patent system works. Unless this site is outdated:

    https://oedci.uspto.gov/OEDCI/

    I find it fascinating that an individual who is isn’t even apaprently qualified to prosecute a patent application somehow feels qualified to pontificate on all that is wrong with the patent system.

  5. Edison’s light bulb, they ignore the evidence of Swan’s simultaneous, competing light bulb.

    Dear Professor Lemley,

    Before you mentioning it above, truthfully; I had not heard of Swan.

    Even Swan was apparently not “first”:
    http://www.enchantedlearning.com/inventors/edison/lightbulb.shtml

    But that should not surprise because “light” had been coming out of thunder and lightening for eons (neons?) before.

    But that whole line of analysis circumvents the false logic of your arguments.

    You see, Edison and Swan were not “ordinary” people.

    Indeed, if there was no patent system, the likelihood is that these extraordinary artisans would not in the first place have been competing neck and neck with each other to be “first”. There would not even exist the question of who was “first”. After all, who cares? (assuming there is no patent system)

    Moreover, the original purpose of early USA patent law was to bring technology to “this country” (see the old section 102(a)). It was well recognized by the Founding Fathers that America was a backwoods agrarian nation that did not, and could not compete with advanced British technological prowess in a truly free market, no-monopolies market place. The Brits were well ahead of us (USA). It was the more liberal rewards of the American patent law that unleashed the so-called “Yankee ingenuity”. And yes, many of the Yankee inventors were solo inventors, tinkering in their garages without access to the internet and the know-how of others while hoping to be “first” in “this country” pursuant to the race-making USA patent law.

  6. JNG-

    So that we can have a substantive debate here can you tell us what you think shows Lemley doesn’t undertand the patent system?

    Everyone-

    Does anyone here seriously question Lemley’s premise that questions the myth of the sole inventor? Can we at least all agree that in only the rarest of cases is there a single inventor? This seems readily apparent and easily confirmable given the fact that virtually no inventions are pioneering, but rather are improvements.

    Those who are regulars know I have high regard for Lemley. I don’t always agree with him, and in fact frequently disagree, but no one should make the mistake that Lemley is just another academic. He has a successful practice and whether we agree with him or not there are plenty of Courts that have agreed with him and his positions over the years, which to me means he must be taken seriously.

    I think Bobby hits the nail on the head when he says that Lemley’s paper attacks traditional rationales, making it understandable for people to be upset. I get that. However, I don’t think we should lose sight of the fact that the ultimately conclusion challenges the orthodoxy of the anti-patent community. The anti-patent community always says that patents get in the way of innovation. Lemley says that is not true. Given the high regard many Judges have for Lemley this article should be quite useful to stem the tide of the ant-patent zealots.

    So what is it specifically about the article that is problematic. Is there a concern about obivousness? I suspect that is what is making many uncomfortable. So let’s explore the core of the discontent.

    Cheers.

    -Gene

  7. Hi Gene

    I love your site and read it a lot. My point is very basic: the man has zero experience in the field in which he professes to be a professor. Anything he says about it is about as relevant as what my 7 year old has to say about it. Until Lemley has demonstrated ANY proficiency in the patent system – and has any skin in the game – his “observations” are mostly academic fluff with zero relevance to reality. From what I see of his papers, his main claim to fame is mostly trying to gain popularity by pandering to the current anti-patent mob mentality and jockeying to get credibility with the intelligentsia in this field by having his papers cited.

    Every once in awhile he publishes some other nonsensical “insight,” where he tries to appear “balanced” in his discussion, like last year when he tried to convince the patent “troll” community that they should REALLY file lawsuits in Florida, b/c his “extensive research” demonstrated that this was the really the forum that would return the best return on their money. The paper was populated with lots of tables and fancy numbers to argue the logic of his point.

    http://amlawdaily.typepad.com/Lemley.pdf

    This “research” of course is complete nonsense, as any real entity that really has to enforce and monetize patents can tell you. But I’m not in the business of sharing the realities of the business with Lemley and his anti-patent crowd, so I’m not going to enlighten him on the gross errors in his analysis. I’d rather he continue with the delusion that the ED TX is not the best patentee forum in the country. That way it will be a lot less crowded for the people in the know.

    As to the merits of his paper, let’s start off with his premise:

    “…If we are supposed to be encouraging only inventions that others in the field couldn’t have made”

    Examine closely. Even his articulation of the “problem” is divorced from most common conceptions of the purpose of patent law. It is not to encourage ONLY inventions that COULDN”T HAVE made. This is a constrained and distorted formulation intended to make his conclusions…. inevitable. By phrasing whatever problem he wants to, Lemley always ends up with answer he wants as well.

    So, in case its not clear, yes, I think he’s a faux-expert pining for attention.

  8. JNG,
    Are you suggesting that only registered patent attorneys can comment and theorize on the patent system? That has the problem of limited diversity and can raise concerns about objectivity. Even if we decide to only leave it to the experts, patent attorneys are not the experts on the effects of the patent system as a whole, which is the area Lemely’s paper is concerned with. The experts would primarily be those versed in macroeconomics (although some other disciplines might be nearly as well suited), not practicing patent attorneys.

  9. Hi Bobby

    Two things:

    1) Lemley’s agenda is as transparent as cellophane (another great invention). He formulates the “problem” as follows:

    “The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. … Our goal is to encourage extraordinary inventions – those that we wouldn’t expect to get without the incentive of a patent. ”

    Lemley postulates the problem this way b/c he is part of the well-paid movement of big companies to limit inventor’s rights. Thus, he implies that patent rights should only obtainable by “lone geniuses” b/c that’s the same snake oil he sells in his cases: i.e., the patent can’t be meritorious b/c it wasn’t secured by one of these “lone geniuses.”

    2) Lemley then states:

    “…If patent law in its current form can be saved, we need an alternative justification for granting patents even in circumstances of near-simultaneous invention”

    Here again Lemley reveals his real bias: he doesn’t like the fact that his corporate masters can’t use “simultaneous invention” as a robust enough obviousness defense to defeat inventors. So, darn it all, there MUST be a problem with the patent law, and apparently it needs to be “saved.”

    I submit that anyone who is going to be brash enough to be making proposals on how to “save” the “patent law” then, yes, I would expect that person to have some actual experience in obtaining patents. Then, maybe I might be inclined to give some credence to their thinking on how the system can be “saved.”

    Right now the only threat to the “system” are people like Lemley who purport to be unbiased observers, but, in fact, are paid handsomely to promote an anti-patent agenda. Note that I don’t say “kill patent” agenda, b/c that would put people like Lemley out of work completely, and they wouldn’t like that either. Better to keep it alive as a bogeyman that can be used to scare more $$ from the corporate sponsor coffers.

  10. I continue to be mystified by the strong antipathy felt, and expressed, towards Mark Lemley by many self-appointed critics. I stumbled upon this phenomenon by accident shortly after reading The Patent Crisis and How the Courts Can Solve It, which Lemley co-authored with Dan L Burk. I refered to the book in a comment on a patent law blog (not this one), and immediately received responses of a dismissive and abusive nature, i.e. which attacked me and Lemley rather than actually progressing any discussion of the real issues.

    I have since found that this is a repeatable experiment. Take almost any online discussion of US patent law. Add one brief comment, mentioning Lemley’s name as support. Then sit back and watch as the ‘debate’ degenerates (further) into ad hominem attacks and verbal abuse.

    I call it ‘dropping the L-word’, and suspect that it comprises some form of patent-law corollary to Godwin’s Law.

    I note that those who criticise Lemley generally see themselves as workers ‘at the coal-face’. Lemley, on the other hand, is generally looking at the big picture, i.e. at the whole forest, and not just the particular trees that surround any one practitioner. His writings typically look at the patent system from a policy perspective, bearing in mind that the system serves many different masters, and not just the attorneys who act for the small clients and independent inventors.

    Despite the criticisms (largely from people who have never experienced the academic discipline of researching, organising and writing a major thesis) Lemley’s papers are academically rigorous and worthy of thoughtful, and respectful, consideration. Even if, at the end of the day, you do not agree with him. Seriously, if everyone agreed about stuff, the word ‘debate’ would not be in the dictionary.

    For those who know little about Lemley, except for the non-peer-reviewed opinions of others in forums like this, there is a recent interview by Tim Knight available on YouTube so you can see the man speak for himself. He certainly doesn’t come across as ‘anti-patent’ in this discussion. You can conveniently access the two parts of the interview, with a short background, in an article on my blog: Tim Knight Talks to Mark Lemley About Patent Law.

    Abusive replies > /dev/null

    Cheers,

    Mark

  11. My two cents as an Inventor (pro se for 40 plus patents in my estate & a high school debater, BFD):

    Prof Lemley and his crowd frame questions that ignore historical perspective. Whether limiting term to 20 years (GATT 1995), or publishing previously secret apps for “harmonization” (AIPA 1999), and now the move to first-to-file (and all those company specific carve-outs) known as ” America Invents Act” – oh, shouldn’t forget 2007 Final Rules & the push to limit Inventors to 5 inventions (amongst the other “improvements” that was struck down by the Court). There has been a consistent push by the “status quo” against “lone geniuses”.

    This by companies that offshore, pay little taxes, instruct their employees to not read patents (isn’t that ironic), and generally out-lobby Inventors. Who represents Inventors; but, Inventors. If retired Judge Michel says funding and resources are the best way to improve the patent system, I am listening. If academics have never predicted a single “success” or a single patent “worthy” of their own standards, sorry, you are not worthy if the debate. There is little incentive for modern American Inventors to disclose without fear that law and rules change faster than prosecution time. Why is Prof Lemley not for a registration system for patents? Or, why does he leave the issue of our asymmetric treatment of copyright protection alone? Do copyright owners represent a better case of “lone geniuses”? (Why did the Founder’s treat “Authors and Inventors” to one section of the Constitution?) Follow the money, ahem, the sponsors of his research.

    Meanwhile, it strikes me as odd that he should be so defensive. Perhaps we should seek a patent system any Inventor can understand by reading the Manual for Patent Examination Practice (“MPEP”)? Time can be spent by the patent bar to offer more objective “bright lines” – or maybe the lack of “lone geniuses” is a result of successfully pushing those folks elsewhere. We certainly have a reverse brain drain problem. Interesting, that. Or, perhaps our own history repeats as it did when the Founders rejected British notions of patentability and access to power.

  12. “Lemley postulates the problem this way b/c he is part of the well-paid movement of big companies to limit inventor’s rights.”
    Are you suggesting that Giles Rich, a man nobody sane could accuse of being part of a movement to limit inventor’s rights, was part of this movement? He said quite similar in Principle of Patetability:

    Let us consider first “progress in the useful arts.” How is such progress actually made? For one thing it is made by the constant increment of improvements on what we already have, produced both by the expected skill of ordinary workers in the arts and by the unobvious developments which would not occur spontaneously from the application of such ordinary skill. The former improvements are never patentable. Why? Because they will made anyway, without the “fuel of interest” which the patents system supplies.

    “I submit that anyone who is going to be brash enough to be making proposals on how to “save” the “patent law” then, yes, I would expect that person to have some actual experience in obtaining patents. ”
    Experience in obtaining patents might be useful if what was needed was the ability to obtain patents. That experience could possibly save a company. However, the danger here would be economic justification for the patent system, which is a very different matter. If the old rationale is broken, a new one would be needed, or else the system as it is would be without justification, and thus unjust. With proper analysis, it would seem that the number of patents possibly justified under the rationale Judge Rich and many others have provided would be orders of magnitude less than what we have now. If we wish to maintain something close to the status quo, we would need an alternative explanation, such as the racing theory provided.

  13. Is it “Bobby”? Why note post wo the hindsight benefit of anonymity on such a legal argument? Inventors certainly cannot maintain even an aura of anonymity – I digress.

    Judge Rich was not an Inventor. No, I did not know Judge Rich. Not clear if he was a “person having ordinary skill in the art” nor was he an Examiner, if memory serves (though Albert Einstein, no “genius”, he, was a Swiss Patrbt Examiner, hmmmm). When the Founders articulated the Constitution, in writing (!!!), even by legal or political consideration, is it not your position that they were actually talking about innovators and those interested in the “utility” of giving fair notice of “novel and” later (!!!) “nonobvious” inventions – “made by man”? When is it true that limiting a person’s property rights, including “Labour of the Mind”, a bad thing? Was the Intellectual Property Clause really about law, or was it about those that could produce and create “Intellectual Property”.

    My bet: “Writers and Inventors”. Plain as the Supreme Court should see it (including if need be striking First to File from America Invents Act as being unconstitutional). It is that important to America. It is that important to American job creation. And, no, Jeff Immelt, Americans need not be champions of GE, just because you wave a flag (pay your fair share and hire Americans). Americans should cheer their history of thought leaders. Thomas Edison would hardly recognize GE. Leadership in ideas. Economic planning never worked. America’s system deserves better than weak rhetoric nd special interest politics.

    Judge Rich’s contribution (especially the superior 1952 Patent Modernization Act versus the influence of Mr. Lemley & his crowd is hardly comparable, at least from this Anerican Inventor).

  14. Gene,

    I often respect your analyses. That said, I do not see how you circumvent this very clear message in Lemley’s Abstract:

    The point can be made more general: surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other.

    You argue that Lemley does not want to destroy our current system at the same time that Lemley writes:

    We should issuing very few patents – surely not the 200,000 per year we do today.

    Finally, Lemley pretends as if HE were the first to have these two Aha’s:

    we need an alternative justification for granting patents
    — even in circumstances of near-simultaneous invention. I consider two other possibilities.
    [1] First, patent rights encourage patent races, and that might actually be a good thing.
    [2] Second, patents might facilitate markets for technology.

    These concepts are as old as patent systems themselves. The reason we make such a big deal as to who is “first” (to invent) is because it is a race, the greatest race on Earth.

    And D’Oh of course we want patents to “facilitate markets for [the] technology”. That’s the whole point. No one but a strawman factory manager believes that: the possibility for a patent by itself is what causes people to invent. First they invent and then somebody says. “Maybe you should apply for a patent for that.”

  15. Helpful note for those who are having a hard time downloading Lemley’s full paper:

    If you are new to the SSRN system, it is not that unusual that the “click here” to download link doesn’t work

    However, if you go to the author’s page; in this case, this one:
    http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=32215

    Search for “myth” and click on the “Download” hyperlink there, that should work for you

    Enjoy the full (of BS) read !

  16. “Inventors certainly cannot maintain even an aura of anonymity – I digress.”
    Actually, they can, just like authors can. However, they can’t easily seek legal protection and have anonymity simultaneously.

    The rest of your post isn’t very coherent, and you seemed to not actually address the point I made. Rich had perhaps the biggest pro-patent influence in the 20th century, and he used what Lemly defined as the traditional rationale for what should and should not receive patents, so it’s ludicrous to claim that the only reason Lemly would make that claim is because he is being funded to make anti-patent claims. It genuinely is the traditional way of separating what’s worth giving a patent out for and what isn’t.

    Step Back,
    “These concepts are as old as patent systems themselves. The reason we make such a big deal as to who is “first” (to invent) is because it is a race, the greatest race on Earth.”
    Then perhaps you might cite some rather old statements that actually touch on the subject of simultaneous invention and the notion of a race. The closest argument I’m aware of was Jefferson saying that “the natural understanding of [society’s] members would have suggested the same things or others just as good.” However, that was an argument for why patents should not be perpetual, not racing theory. Lemly likely isn’t the first to come up with this idea, but I haven’t seen evidence that it has long been a widely accepted rationale.

    “And D’Oh of course we want patents to “facilitate markets for [the] technology”. That’s the whole point. ”
    Lemley’s paper suggested that the law as written is not in tune with that notion (for example, it would apply equally to entrance in a market with ideas are that are obvious and aren’t new), and that that idea almost certainly doesn’t bear its social costs.

  17. “@Bobby” the iPhone typing was bad. What is your name again?

    The arguments stand. Lemley is no Inventor. And, apparently, neither are you. If that is an ad hominem, we really have a problem with “promoting the progress of the arts and sciences”.

    But, to be clear, why not have a patent registration system? Why is patent litigation so expensive while outcomes are still around 50% (of the 1% that actually go to trial)? What is it that has caused such a difference in treatment of the “lone geniuses” who have copyright protections? Do they create more jobs than Inventors?

    Obviously the corporatization of the patent system would mirror that of what has become a copyright cabal in many of verticals (music, movies, print media, even search and information processing formats and platforms, etc etc). Perhaps that explains why we give away the advantages of the America patent system in exchange for secret treaties with other nations on copyright protection. How convenient. How hamonizational!

    Hand-waving after the lobbyists have gutted the essence of the patent system is easy. Your anonymous rant about how Lemley is the new Judge Rich. Sorry, that’s pathetic.

  18. Bobby:

    Here is one quick find from Google scholar:
    http://www.jstor.org/pss/2098603

    It is a 1986 paper (25 years ago) discussing the “patent race”
    As I said, it’s old old old

  19. Scott
    My point was that the issue Lemly is discussing is not how to invent, and it’s not about how to obtain a patent. It’s about the economics of the patent system. That makes whether or not Lemly is an inventor irrelevant.

    As for the disparity between copyright and patents, there are a few key differences. One big one is that under copyright, if two parties independently come up with the same thing, then the copyright of one doesn’t stop the other from practicing. Thus, there is no need for examination for novelty in copyright.

    I wasn’t saying that Lemly is the new Giles Rich. I was saying that his formulation of classic patent theory is in line with what Rich had said.

    Step Back,
    Thanks for providing an example, I’ll try to read it in it’s entirety soon, although I’m not sure if it’s applicable to this situation. Yes, it mentions patent races, but the concern seems to be the effect on the market structure within a market, not patent races as an underlying justification of the patent system. I don’t think Lemley was claiming to have thought of the concept of patent races, since he mentions that “patent races are usually derided as wasteful.” My apologies if I wasn’t clear in what I was asking for.

    It’s also amusing that you find 26 years to be ‘old old old’ in relations to patents. It’s not that far from a single patent’s lifespan ago. ‘Old old old’ would to me be something within the lifetimes of America’s founding fathers, or perhaps something that predates the United States. I understand that works from those eras can be a great deal harder to find than recent academic papers, though, especially given that economics was a much less developed field at that point. However, you’ve set a high bar for yourself by claiming the concepts were “as old as patent systems themselves.”

  20. @Bobby,

    Stop moving the target around and hold fast to your position if you have one.

    You want something old old, like from the days of the Founding Fathers?

    Here you go:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    source:
    http://en.wikipedia.org/wiki/Copyright_Clause

  21. I’m not moving the target around. I’ve said that I haven’t seen evidence that a patent race theory like Lemley’s has been a widely accepted theory, and the way you worded your claim suggests that it would be among the earliest justifications. As I said in my first post on this article, patent races are a much more complicated figure than the traditional model, making it much harder to get useful data on the subject. Patent races don’t easily fit as ‘common sense’, so it’s reasonable for it to not be a popular reasoning for patents.

    Your citation of the copyright clause is from an appropriate era, but it contains no arguments about accelerated progress from patent races being a rationalization of patent law.

  22. Historically-recorded patent races predate the US Constitution. See, e.g., Michael F Martin, ‘The End of the First-to-Invent Rule: A Concise History of Its Origin’, (2009) 49 IDEA 435 (http://law.unh.edu/assets/pdf/idea-vol49-no3-martin.pdf). Quoting from pp. 451-452 (footnotes omitted):

    The need to petition for patents in multiple states led to the first major disputes over priority of invention in the United States. The story of these priority disputes, which were primarily between John Fitch and James Rumsey, began around 1786 and continued through the drafting of the Constitution. In 1784, James Rumsey demonstrated to General Washington a model of what he would later call his “stream boat.” In return, Washington gave Rumsey a certificate stating his belief (using contemporary terms) in the utility, novelty and enablement of the invention. Rumsey used this certificate to obtain patents in Virginia, Maryland and Pennsylvania in 1785.

    Meanwhile, John Fitch began work on his “steamboat” in the spring of 1785, presenting his work publicly to the American Philosophical Society in Philadelphia in September of that year. Also in 1785, Fitch petitioned the Continental Congress for funds to develop and commercialize his invention. Given its dire financial condition, Congress refused. Fitch nonetheless was able to obtain a patent in New Jersey in 1786 and in Delaware, New York, Pennsylvania and Virginia in 1787.104 His petition in Pennsylvania resulted in a
    priority dispute between Fitch and yet another steamboat inventor, Arthur Donaldson. Fitch also petitioned for a patent in Maryland but lost out there to Rumsey.

    So, at least three inventors of the ‘steamboat’. In fact, Lemley discusses the case of the steamboat at pp.17-18 of his paper, citing (fn. 28) one source identifying no fewer than eight simultaneous inventors (including Robert Fulton, who appears usually to get the credit). Perhaps nowadays there would be scope for claim differentiation, so that all could have a valid patent? Or, perhaps they would all be pursuing claims so broad that they would be found obvious under the standard set in KSR:

    …as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.

    I find myself wondering exactly what the Supreme Court meant here, if not that advances in technology (some inventive, some not) lead to situations in which developments that might once have been inventive are now ‘ordinary innovation’. And when this happens, simultaneous (ordinary) innovation is quite likely, and might well be an indication of obviousness.

    Of course, this does not preclude cases of genuine ‘simultaneous invention’, i.e. where two (or more) inventors coincidentally come up with the same, genuinely inventive, development. However, it does not seem to me that there is any good reason why evidence of simultaneous innovation should not be available as one of the ‘secondary considerations’ of obviousness. This is entirely consistent with Graham v John Deere, and with KSR.

    Mark

  23. @Mark,

    If in a country of 300 million people you have just two persons coming up nearly simultaneously with the same thing, that is NOT evidence of “obviousness” but rather evidence of the opposite: non-obviousness.

    Where were the rest of the 299.999 million people? Why wasn’t it obvious to them?

    I exaggerate of course because under patent law you have to look to the population of “ordinary” artisans in the prior “art” which most closely pertains to the invention. So it is not 2 extra-ordinary people (inventors) versus 299.999 million ordinary others but rather another ratio which is equally large in contrast but not quite that stark.

    The “ordinary” artisans simply don’t come up with much. They sit and wait to be spoon fed by the extra-ordinary few and then they have the ingratitude and audacity to say that it was all “obvious”.

    That unfortunately, is human nature.

  24. available as one of the ‘secondary considerations’ of obviousness.

    Come again? did you just make up that phrase? Isn’t the phrase secondary considerations of non-obviousness?

  25. @BD No, I did not just ‘make up that phrase’. My quotation marks are only around ‘secondary considerations’. Neither variant actually appears verbatim in Graham v John Deere:

    Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances. (Emphasis added.)

    The secondary considerations are evidence-based. They could tip the balance either way.

    Did you have a comment on the substance of my comment, or are you just in the mood for petty (and unsubstantiated) nit-picking?

    @Step Back: I agree. Sometimes the existence of only two inventors in a large population will be indicative of inventiveness. And I do not know why you would limit your population size to 300 million. Half of the applications filed in the US come from the Rest of the World.

    However, my point is that this is an evidence-based, factual enquiry, and one which should not be discounted when considering obviousness. For example, if you have a field (such as some particular branch of chemistry or pharmacology), in which the evidence shows that innovation is generally achieved by a small number of teams of highly-qualified and intelligent people, backed by substantial corporate or government resources, and four individuals drawn from four different groups all ‘just happen’ to come up with the same ‘invention’ and the same time, you might well be caused to wonder whether that particular development was one that was simply ripe for the picking.

    Incidentally, in the first US census of 1790, the population was 3,929,000 (http://www.wisegeek.com/what-was-the-population-of-the-us-throughout-its-history.htm). Of these, 40% were illiterate (http://www.mcsweeneys.net/articles/literacy-rates), so lets count them out as potential PHOSITAs in steam technology (this might be a little unfair, but we know that the eight who actually battled over patents were literate, so we can only be excluding additional simultaneous innovators by making literacy a prerequisite).

    I imagine that only a very small percentage of those who were literate were also sufficiently technically-skilled to develop a steamboat. And of those, the majority would be engaged in other, non-steamboat-related activities (including subsistence, or inventing other stuff). All-in-all, eight simultaneous inventors seems like a pretty big coincidence, if it wasn’t obvious. Clearly, such coincidences happen, and it could have been the result of a particularly high concentration of geniuses (genii?), or it might simply have been that the state-of-the-art had reached the point where the development of a steamboat was obvious and inevitable, with or without a patent incentive.

    Mark

  26. step back,
    I don’t think the ratio is particularly important if we are looking at the patent system practically. Linus’ law has this covered with “given a large enough beta-tester and co-developer base, almost every problem will be characterized quickly and the fix will be obvious to someone.” Substituting the software specific elements of this for a more general case, the more people there are that will be likely to look at a problem, the greater the likelihood that someone will be able to see a solution to that problem. A greater population (and a more educated/experienced population) should make the practical standard for non-obvious higher because it’s more likely that “the natural understanding of [society’s] members would have suggested the same things or others just as good.” 20 in 10,000 results in more people who could offer us solutions than 2 in 10.

  27. Linus’ law has this covered with

    Except Linus’ law is not Patent Law.

    Looking for laws “to cover” a rationale for excluding patent coverage, especially given the current law (See 35 USC 103(a) – Patentability shall not be negatived by the manner in which the invention was made.) is looking for a different philosphy to apply.

    No one outside of the group looking to change the law to lessen patent coverage is making any such arguments about what the current laws state.

    If you want to change the laws, you need to be direct in your statements, not circumvential.

    Dressing up a discussion of patent law and sliding in such changes as “necessary” to make Patent Law better assumes the premise that that area of patent law needs to change. That premise has not been established. That premise is rejected.

  28. Anon,
    I didn’t say I was discussing the letter of patent law. I was discussing the economic arguments about how patent law should be. Letting the law dictate our logic instead of letting logic dictate our laws is troubling behavior. The discussion is how to define obviousness, and I’m not sure what kind of mental gymnastics led you to believe that this has anything to do with the matter of making the invention. That’s about treating the inventions of Thomas Edison, who finds 10,000 ways that doesn’t work before succeeding, Nikola Tesla, who creates and debugs the entire invention in his head, and Emmett Brown, who has a brilliant idea after hitting his head on a sink, on an equal plane.

    Back on the subject, the first question to ask is ‘Why don’t we allow patents on obvious inventions?’ The most reasonable answer to me is that “they will made anyway, without the ‘fuel of interest’ which the patents system supplies.” If such a case, why would society buy the cow if we can get the milk for free? The next question is, ‘Does it matter much how many people will make it without the fuel of interest, or just that it would be made without the fuel of interest?’ Since information is not consumable, what matters is that it would be made without the fuel of interest. Therefore, speaking practically, not legally, it need only be obvious to a PHOSITA, not obvious to any> PHOSITA, or even a certain percentage of PHOSITAs. How the language in 103 would be interpreted may be different from this, but that doesn’t change the practical argument. The ratio doesn’t matter from a practical standpoint. If the law differs from that, then the changing the law would be beneficial.

  29. If the law differs from that, then the changing the law would be beneficial.

    NO – you are assuming the premise that you need to establish. As I said – I reject that premise. Patents are not given on a “but for” basis. If you want to assume such a radical change, then you must make a compelling pitch for that. Assuming that that stand is a given is not compelling.

  30. “Does anyone here seriously question Lemley’s premise that questions the myth of the sole inventor? Can we at least all agree that in only the rarest of cases is there a single inventor? This seems readily apparent and easily confirmable given the fact that virtually no inventions are pioneering, but rather are improvements.”

    I can only speak for myself, but I think that Lemley’s characterization of the issue is way off base. If he wrote that “very few inventions are unlike anything else that has come before,” then I don’t think that most wouldn’t have a problem with that premise. However, by characterizing the issue as “the myth of the sole inventor,” I believe he is mischaracterizing the facts, and as a result, is using those mischaracterized facts to come to a conclusion that certain people are comfortable with.

    “For one thing it is made by the constant increment of improvements on what we already have, produced both by the expected skill of ordinary workers in the arts and by the unobvious developments which would not occur spontaneously from the application of such ordinary skill.”
    I’ll have to thank Bobby for providing me with this quote from Lemley’s work. It exemplifies what someone above has stated about Lemley – his life experience is disconnected from the reality of what goes on. He is not an engineer, and he hasn’t worked as an engineer. Had he, he (and SCOTUS) would have realized that ordinary workers are not particularly inventive. Most people, when their only tool is a hammer, treat all problems as nails. Few people will “look outside the box” to find a different tool for a problem that isn’t readily solved with a hammer.

    Had Lemley any real world experience, he would have recognized that “the expected skill of ordinary workers in the arts” generates very, very few inventions. Moreover, those inventions are the ones for which prior art is readily found.

    FYI – Stepback nice post #14

    “Then perhaps you might cite some rather old statements that actually touch on the subject of simultaneous invention and the notion of a race.”
    I don’t know the historical basis for these, but I’ve been stating the same thing for many years. Also, as I stated in my original critique of his work, I think Lemley is off-base by attempting to identify some overarching principle that is the justification of the patent system. I don’t have a problem with 5, 10 or a dozen or more different justifications. People/companies react to different stimuli, and as such, some justifications may be appropriate in certain instances while others may not. Oh … I’ve seen Steback has already slapped this one down as well.

  31. Anon,
    “NO – you are assuming the premise that you need to establish. As I said – I reject that premise.”
    Do you have an alternate reason for why we don’t grant patents on obvious subject matter? Are you claiming that information is consumed with usage?

    JV,
    “I’ll have to thank Bobby for providing me with this quote from Lemley’s work. It exemplifies what someone above has stated about Lemley – his life experience is disconnected from the reality of what goes on. ”
    Perhaps you should read more closely. That is a quote from Judge Giles Rich, which I had said was saying basically the same thing as what Lemly had said in a portion of the paper that was constantly criticized by the ipwatchdog commenters. I’ll try to keep in mind that you think Rich’s experience was disconnected from reality. It also may be worth noting that the paper the Rich quote comes from was recommended to me by Blind Dogma, so that might reflect on your viewpoint of him as well.

  32. Lemley talks about new ideas being “in the air.” Why are they in the air? Because the folks working with technology (i.e. inventors, their collaborators, their marketersm, their financiers) feel free to disclose their technology, knowing that they have patents to protect them from being usurped by rivals.

    Without patents, those ideas will be kept as secrets, and the air will not contain ideas.

  33. Do you have an alternate reason for why we don’t grant patents on obvious subject matter?

    What are you talking about?

    I do not need any “alternate reasons.” The law – as is – already covers not granting patents on obvious subject matter. The entire point here is that the law – as is – already functions, and what is going on is an endrun change attempt based on some academic’s “desire” for a better system.

    Are you claiming that information is consumed with usage?

    I am not even engaging in that discussion, because as I have said – you have assumed the very premise that you need to establish and the premise is one that I have rejected.

    To use a baseball analogy, you have hit a ground ball to my shortstop who threw you out at first base, yet you are arguing that you are safe at third base. You are trying to argue a nonsense position.

  34. Anon,
    Understanding the law is a lot more fruitful than knowing the law, particularly when speculating on what the law should be. Step Back’s argument on obviousness is utter garbage if you understand the purpose of rejecting obviousness (and consider other factors may apply), even if the letter of the law might agree with him. However, it’s not even clear that the letter of the law does agree with him, as the wording in 103 could easily be interpreted either of the ways presented.

    American Cowboy,
    You can’t have your cake and eat it too. Either the Chinese manufacturers are going to copy you in five minutes, all these secrets will be taken to the grave, or the truth lies in some mix of them (with the very real possibility that in many cases, the level of protection trade secrets provide may be more socially desirable than patents). Lemly’s paper covers disclosure theory in quite a bit of detail, and suggests that it doesn’t have very much support.

  35. Bobby,

    If anyone here speaks to understanding of knowing the law, it certainly is not you.

    One does not have to wait long for this to show itself:

    the level of protection trade secrets provide may be more socially desirable than patents” because Trade Secrets promote the Progress of Science and useful Arts…

    Oh wait – they don’t.

  36. “I’ll try to keep in mind that you think Rich’s experience was disconnected from reality.” I acknowledged that I think judges’ experience are disconnected from reality when it comes to the patent system when I referenced SCOTUS in my statement. Whether said by Rich (or relied upon by Lemly), I still believe that statement to be divorced from reality.

    “Step Back’s argument on obviousness is utter garbage if you understand the purpose of rejecting obviousness (and consider other factors may apply), even if the letter of the law might agree with him.”
    Oh darn … that “letter of the law” thing again. Wouldn’t it be nice if we could ignore the law when we wanted to? FYI — I’m just paraphrasing your local anarchist. And other thing, what is Step Back’s argument on obviousness? I read his posts, and I don’t he articulated one. Care to clarify?

    “If anyone here speaks to understanding of knowing the law, it certainly is not you.”
    We’ve got a winner in this debate … wait a second, I take that back … that statement was obvious and certainly not worthy of any type of recognition.

    Really, I wonder why I bother debating Bobby. Its not like playing Halo at the ulta-hardcore level. It is more like playing Angry Birds — you know it is easy to beat and it is a waste of time none-the-less. However, it is an enjoyable waste of time.

  37. @Bobby @BD @JV

    Re: trade secrets promote the progress of science and the useful arts…

    Whether anyone likes the Lemley article or not doesn’t the conclusion reached once and for all blow that type of fallacy out of the water completely? Lemley clearly concludes that patents lead to more innovation and more innovation faster than would exist without patents. Whatever the rationale for the patent system is, it seems as clear as can possibly be that patents are responsible for promoting the progress of science and the useful arts.

    From a pure logic perspective, it is almost unbelievable that anyone could think that something that is kept secret from everyone could promote the progress. I’d love to hear exactly how something that by definition is not know to anyone could ever be built upon by others. Let’s not forget that inventors and scientists do not operate in a vacuum. They build upon the work of those who have come before them otherwise every new generation would have to reinvent and rediscover the same things. So it is logically and practically impossible for secrets to be used as the foundation for anything. Secrets need to be reinvented and rediscovered every generation.

    -Gene

  38. Gene said “Let’s not forget that inventors and scientists do not operate in a vacuum. They build upon the work of those who have come before them otherwise every new generation would have to reinvent and rediscover the same things. ”

    My point exactly when saying that “ideas in the air” will disappear if patents disappear. Even if PHOSITA’s don’t actually read patents, the fact that the invention is protected by the patent provides the inventor the freedom to disclose it other ways – by speeches, published papers, embodied in products, whatever.

  39. Gene,
    Lemley’s paper speaks mostly of theory, and his theory is not widely empirically tested. Furthermore, racing theory is a lot more complex in the factors to weigh, meaning that patent law might need to be even more carefully tuned. I was rather generous to you, anyway, by saying that in many cases, the level of protection trade secrets provide may be more socially desirable than patents. Trade secrets provide different levels of protection to different fields, and even different inventions within a field. Suggesting that patents are always going to provide a better return on investment for society is just statistically unlikely.

    As for secrets, you are correct that nothing is built on secrets by another party while something is a secret. But often, a secret stops being secret. For example, while once a secret, the master key to HDCP is now quite easy to find. If a secret would stay a secret for a year, then the knowledge could be public before a patent was published 18 months later, and it would have no legal protections.

    JV,
    “I acknowledged that I think judges’ experience are disconnected from reality when it comes to the patent system when I referenced SCOTUS in my statement. Whether said by Rich (or relied upon by Lemly), I still believe that statement to be divorced from reality.”
    I commend you for at least being consistent, but you are projecting a severely inflated sense of self-importance or importance of your clients, while looking down on people who observe society as a whole, and even those that help author our laws. Experience on the micro scale is actually an inferior position to speak from on the macro scale to those, although I contend that those with experience on the micro scale can still have something useful to contribute. You act as if the vast majority of progress comes from a small group of elites. However, sharp increases in the rate of progress are most strongly correlated with technology that democratizes, such as the printing press, the internet, and such. I seem to even recall a somewhat nationalistic article here talking about how America’s patent system was better than Britain’s early system because it was more accessible to the everyman.

    “Oh darn … that “letter of the law” thing again. Wouldn’t it be nice if we could ignore the law when we wanted to?”
    Yes, it would be nice if discussions about what the law should be weren’t pointlessly bound by what the law is, especially since you think that at least some of those that write the letter of the law are disconnected from reality. Advanced brain functions have allowed us to divorce ‘what is’ from ‘what could or should be.’ I would be amazed if someone could invent without those brain functions, save perhaps serendipitous accidents. If you lack that ability, then you obviously don’t have relevant experience even on the micro scale. If you have that ability, use it for a moment so we can speak in the theoretical.

    “what is Step Back’s argument on obviousness? I read his posts, and I don’t he articulated one. Care to clarify?”
    He said “If in a country of 300 million people you have just two persons coming up nearly simultaneously with the same thing, that is NOT evidence of “obviousness” but rather evidence of the opposite: non-obviousness.” His focus was on the number of people to whom it was not obvious as evidence of non-obviousness. However, while you can use that metric for what is obvious, it’s not practical in regards to the goals of the patent system.

  40. The real gist of Bobby’s position: “and it would have no legal protections

    Oops, I bet he didn’t mean to be that honest…

  41. BD,
    No, that was an important part of my point. If we get the same inventions from a trade secret, and the social costs of secrecy for a certain while are less than the social costs of a patent, then trade secrets are a better deal than patents for society.

  42. Bobby-

    With respect to trade secrets you have said that they promote the progress of science and the useful arts. I pointed out that is simply not true and a logical fallacy since you cannot stand on the shoulders of those who come before you when they kept their work secret. That is an unquestionably true statement.

    You then say: “Suggesting that patents are always going to provide a better return on investment for society is just statistically unlikely.”

    Let’s explore your “statistically unlikely” comment. What is your proof that trade secrets are in at least some cases better at promoting progress and the useful arts than patents? If you can start your explanation with how secret information informs the public I would appreciate it.

    -Gene

  43. Hello Mark-

    A very good response to the naysayers I must say. The bigger picture look at things has some merit, as it goes past particular industry interests and focuses on the whole concept of IP being in fact Real property. Much like *buying* real estate and building a house or shop upon it perhaps.

    I see a sort of disconnect though, when you suggest that most breakthrough inventions are incremental as is the case with software *inventions* for instance. Of Course all inventions are incremental almost by definition, as we are not inventing things like Fire or Lightning lately.

    The recent significant devaluation of US patents, especially for smaller entities, should suggest that the books have been cooked in somebody else’s favor. It very well may take more than 8 years to try to fix this legislative mess, and meanwhile all us independents will just have to try to Guess which way to go next. Do you really think that independents need to be challanged even further?

    Regards,
    Stan~

  44. Gene,

    The only way Bobby’s premise works is that the Trade Secret route is taken and there is a failure of the Trade Secret process.

    Bobby want’s his “free” IP because a failed Trade Secret is no longer secret, but then – and only then upon that failure – becomes public knowledge.

    As is clearly evident, a Trade Secret route that does not fail CANNOT promote the progress of science and the useful arts.

    Bobby advocates a system that must fail in order to provide some benefit to society.

    In essence, Bobby wants to be able to pay ZERO for the inventor’s work. This is just his old and tired Dogma rewarmed over on a different day. His Dogma ignores the true meaning of the Quid Pro Quo, of the fact that society should actually want to give the inventor something. To Bobby, this giving to the inventor is a cost that should be minimized, if not eliminated alltogether. It is in this mindset, that Bobby reveals his true nature of being anti-patent and anti-inventor. The “I want it all and want to give nothing in return” mindset should be distasteful. Alas, my Kool-Aid does numb the palatte of those who over-imbibe.

    As I said, being too honest reveals the Fraud in Bobby’s Dogma. It may be so stark as to have a blinding effect, but I do have a new line of Kool-Aid inspired (and TM’d) sunglasses available at a great deal for those who do not want to consistently run into the walls of everyday common sense (Sorry Stan, I had Step Back design the glasses – I did not want to take you out of the taste lab).

  45. Bobby posits: “If we get the same inventions from a trade secret, and the social costs of secrecy for a certain while are less than the social costs of a patent, then trade secrets are a better deal than patents for society.”

    I can agree with the conclusion if the premises are true, but each premise (“we get the same inventions from a trade secret” and ” the social costs of secrecy for a certain while are less than the social costs of a patent”) sure sounds speculative.

  46. BD-

    You say: “The only way Bobby’s premise works is that the Trade Secret route is taken and there is a failure of the Trade Secret process.”

    You FOILED my trap! Drat! The only way anyone ever derives knowledge from a trade secret is when it has ceased to be a secret.

    -Gene

  47. American Cowboy,

    It is worse than speculative. As I posted, Bobby’s path requires a system failure.

    Any philosophy grounded in such moral bankruptcy, such as a need for rooting for failure as the mode to promote fails of its own weight.

    Such failure is what happens when castles are built upon the sands of kitty litter.

    By the way, the Protective Sunglasses come in fifty three shades and for a modest uptick in price will come with actual protective lenses. You will not find a better deal!

  48. Gene,
    I didn’t say that trade secret promote the progress. It’s hard to say something like that because we don’t have a point of comparison. While patents are entirely a construction of the legal system (and thus we can speculate on what things would be like without them), secrets are something that naturally exists. We would have to take active steps to not have any trade secrets, and those steps would probably be costly and oppressive. What I said was that the levels of protection trade secrets provide could be more desirable for society than patents in many cases.

    “If you can start your explanation with how secret information informs the public I would appreciate it.”
    It’s very simple and I’ve explained it several times already. Secret information becomes non-secret information by some means. How to make silk was secret information at one point in time, and I’ve heard claims that it was once the world’s best kept secret. However, we now know how to make silk, so the public is informed on that matter. I’m not saying that the secret itself is what is desirable, but that the secret is secret for X amount of time may end up having less social cost than a patent.

    AC,
    My conclusion had two conditional factors, because I hate using absolutes. I said that it MAY be that in MANY (not inherently all) cases, trade secrets are more socially optimal. Those conditional factors should make it easier to accept the conclusion.

    BD,
    Yes, my arguments depends on trade secrets EVENTUALLY failing. If there is a trade secret that one could reliably keep indefinitely (or even for more than 20 years) while still profiting from it, it would be foolish to seek a patent on it, because a patent presents an inferior value to a trade secret. Thus, unless the secrets are held by people who didn’t correctly assess and choose what is in their best interest, the best secrets are not revealed by patents.

    And yes, the monopoly of the patent is a social cost, and it is in the interest of society to get as much value for as little social cost as we can. That’s why we (theoretically) don’t grant patents on obvious invention. Granting a patent gives us virtually no additional value, but bears a significant social cost.

  49. Double drat! Now I will have to go out and buy an immovable Safe to keep all of my formulas secret! Or maybe just three different secret ones. A free round to all of my new Secret Saffron kool-aid, but I should warn that it has mildly amnesiac properties, so you might want to be careful about how much you dinvulge/imbibe before you write something down about it.

    Cheers!
    Stan~

  50. Bobby writes in part:

    And yes, the monopoly of the patent is a social cost, and it is in the interest of society to get as much value for as little social cost as we can. That’s why we (theoretically) don’t grant patents on obvious invention. Granting a patent gives us virtually no additional value, but bears a significant social cost.

    So perhaps you could enlighten us all of what this great social cost might be? How is society harmed by allowing an independent inventor to profit for a very few years in exchange for giving his insights to the rest of the world? I happen to think that society is much more gravely harmed by folks that would detract from the value of patents, and suggest that keeping secrets would be better.

    Inventors understand that implicitely, where others might not get it at all.

    Stan~

  51. Stan,
    “So perhaps you could enlighten us all of what this great social cost might be? ”
    The legal monopoly of a patent, which excludes direct competition. Generally, competition is regarded as a good thing by most modern economists, so excluding competition is by itself socially undesirable. That’s why we want to get something out of a patent. Hopefully, what we get out of the patent is of more value that the social cost of the excluded competition.

    “How is society harmed by allowing an independent inventor to profit for a very few years in exchange for giving his insights to the rest of the world? ”
    Society is harmed if the costs of “allowing an independent inventor to profit for a very few years” outweigh the benefits of the inventor “giving his insights to the rest of the world.” However, It’s much easier to see this argument if you don’t use language biased in a pro-patent way.

    For contrast, I will state the same question in a loaded anti-patent way. Isn’t it obvious that it harms society by excluding competition just because someone discloses vaguely worded information they wouldn’t be able to keep secret anyway?

    Now, if I had worded a serious question that way, Gene would probably be quite upset with me, and rightfully so. Please refrain from asking loaded questions like that and resorting to personal attacks.

    Also, I didn’t say that ‘keeping secrets’ is something I desire. Rather, my preference is that trade secrets would be the only tool available for those that seek to protect an invention. However, I would probably generally decide against strong enforceability of NDAs and other legal protections for trade secrets.

  52. BTW-
    I just recieved a request to comment on the MPEP being designed right now apparently, because they finally had time to review a suggestion I made about two weeks ago. You can comment about the AIA very easily, and I would like to encourage some of the thoughtful attorneys present here to offer their suggestions. http://www.uspto.gov/patents/law/comments/aia_implementation.jsp

    David and Bob Stoll are working very hard to get things right as far as I am concerned, and the more BD’s and Step Backs and Genes the better as far as I am concerned. Just say no to others who don’t know. http://uspto-mpep.ideascale.com/

    Via con Dios,
    Stan~

  53. Bobby-

    I rest my case. Why do you happen to think that the US Patent and Trademark Office would care even slightly about what what Bobby happens to think? You are seriously out-voted, and thank our lucky stars for that. You would just wave your magic wand, and make billions of dollars in profits just go away because You happen to think it is a good idea? It doesn’t work that way buckwheat, and I fail to see where I have insulted you until just now.

    As Gene has implored some of us, please try to keep things reasonably real in your conjectures.

    All the best,
    Stan~

  54. @Stan – You say (to me):

    I see a sort of disconnect though, when you suggest that most breakthrough inventions are incremental as is the case with software *inventions* for instance. Of Course all inventions are incremental almost by definition, as we are not inventing things like Fire or Lightning lately.

    I do not see where I said that. I do not believe that ‘incrementality’ (if there is such a word) is dispositive in itself. Not only are (almost?) all inventions incremental, but so are all non-inventive developments. The issue is not whether an invention is incremental, nor even the size of the increment. In any given case it is, quite simply, whether or not the particular increment, when viewed in light of all the relevant facts and circumstances, is obvious or nonobvious.

    That’s what Graham v John Deere says. It’s what KSR says. Indeed, I imagine it is what everybody contributing to this discussion believes. The point on which there seems to be strong disagreement is whether, or to what extent, evidence of simultaneous innovation is (or should be) considered relevant to the obviousness enquiry. Or, indeed, to the operation of the patent system more generally.

    I speculate that the reason this topic draws such strong opinions is that the basic premise, i.e. what Lemley calls the ‘myth’ of the sole inventor, challenges some of the most fundamental received ideology surrounding the US patent system. Lemley is not saying that there is no such thing as a sole inventor. Of course there is. There are lots of them. Anybody in the patent profession speaks to such people every day. The ‘big question’ is whether the operation of a patent system should be built around a romantic notion of supporting the noble inventive individual, or whether the progress of the useful arts would be better served by basing decisions upon a different model of how the most productive innovation actually occurs.

    I do not profess to know the answer to this question. Maybe the real engine of innovation is the lone guy, or gal, in the garage. On the other hand, I believe that Steve Jobs’ first patent was for the design of the spectacularly unsuccessful Apple III. It seems that patents did not become important to Apple until the company was already well on the way to corporate gianthood.

    Those who are so quick to attack Lemley are kind of proving his point: they are so wedded to the ‘sole inventor’ narrative that they simply cannot abide the suggestion that this is not the only, or perhaps even the most important, story of how invention occurs. I mean, it’s tantamount to a direct assault on the American Dream! I am sure he deserves eveything he gets for such sacrilege.

    Mark

  55. Mark-
    I was not saying that to you personally, unless I goofed in my message somehow. I guess the main objection I have with Lemley’s posit is that I have been on the other end of the spectrum for quite some time. Sometimes really valuable inventions happen in like two seconds, but they only happen after an innovator has done enough homework to have some idea of what they are actually trying to do, as in discovering what the real *problem* amounts to. Until you understand this latter, you will probably not succeed, and it won’t matter so much I would suppose.

    The point of order is to not hobble independent inventors, just because they don’t happen to have a lot of money to develop nascent new technologies. We Are out there, and Patent Reform efforts will hinder us, but Not make us go away. Corporations can’t really do what we do, because of their Business units I would suppose. Their shareholders were safe, so what’s not to like about that?

    Stan~

  56. “It seems that patents did not become important to Apple until the company was already well on the way to corporate gianthood.”

    I think it goes back earlier than that. Apple was incorporated January 3, 1977. The earliest filing date for an Apple patent that I could find was April 11, 1977. The issued patent was US US4136359: Microcomputer for use with video display. The inventor was Steve Wozniak.

    The Apple II was introduced 5 days later, on April 16, 1977.

    It looks like Steve Jobs’s first patent was for the Apple III, but it was a design patent, D268584.

  57. I speculate that the reason this topic draws such strong opinions is that the basic premise

    Mark, your speculation would be wrong. What draws such strong opinions is the underlying fact that Lemley is highly anti-patent and writes out of his a$$. He cloaks his works in certain phrases and (unfortunately) fools some of the people with that sheepskin (sorry, Gene, you are one of those that stand admiring the sheepskin, failing to see the wolf underneath).

    What quickens and galvanizes the strong opinions is the wolf. If you do not see the wolf, then you have your eyes closed. Or perhaps you yourself are also a wolf.

    Separately from Lemley, your posts indicate an anti-software patent leaning. I grant that your primary legal stand may not be the same as the US legal stand, so some of that leaning can be graciously accepted. But my tolerance for that type of thinking is very short when it comes to US law. US law is explicitly different in the wide scope of patent eligible subject matter, and I firmly believe that US lawyers need to fight to protect that legal stand from the encroachment that many academics put forth in whatever sheepskin they dress up in.

    Another separate thought is in reply to your comment of “by basing decisions upon a different model of how the most productive innovation actually occurs” US law has been explicit about this since 1952 – the “how it actually occurs” SHALL have nothing to do with the decision on granting a patent. Your insertion is ultra vires in the US legal arena. If you want something different, then you need to go through the proper legal channels and have the law changed. And since the AIA has been signed – and that section NOT changed, you will have to deal with the fact that that concept of “ Patentability shall not be negatived by the manner in which the invention was made. SHALL remain in effect for the foreseeable future. Accept it. Understand it. Integrate it into your comments.

  58. “Generally, competition is regarded as a good thing by most modern economists, so excluding competition is by itself socially undesirable.”

    This is the essence of Bobby’s arguments – patents are anti-competitive and competition is good.

    As I argued in another thread, Bobby only looks at one part of the whole and doesn’t look at the offsetting factor, which is “innovation is regarded as a good thing by most modern economists, so removing all incentives for innovation is by itself socially undesirable.”

    Bobby counters this by relying upon his “free love, free software, patent communism” philosophy – which is that people will still invent, will still create great works of works, and will do so for free because the human race is an altruistic group that only has the best interest of the group in mind. He is in love with Linus Torvalds (hence his citation of Linus’ law) and he has likely cut his teeth in the free software environment. Given his obvious cultural/economic influences, I understand why he takes the positions he does.

    Unfortunately for Bobby, communism as an economic system and “intellectual property communism” as a system for approaching intellectual property are niche ideas that have very limited applicability. Sure, you can go somewhere in Vermont and find a nice little commune to live where everybody contributes to the whole and nobody worries about someone getting more than they deserve. Similarly, you can find a few open source projects where people devote their time and energy to create technology with no more expectation than an “atta boy!!” at the end of the day. However, these anecdotes are not reflective of the real world, as a whole.

    Evidence of Bobby’s “intellectual property communism” is in this statement:
    “Isn’t it obvious that it harms society by excluding competition just because someone discloses vaguely worded information they wouldn’t be able to keep secret anyway?”
    He assumes that everybody will disclose their inventions because … well … that is the socially accepted thing to do. He ASSUMES disclosure will occur just like he ASSUMES invention will occur. These are poor assumptions.

    In the real world, people don’t like giving something for nothing. Most inventors won’t invent, most writers won’t write, and most artists won’t produce art if they are not going to get paid. Do you know why Bobby? Inventing, writing, and creating cost both time and money. Copyright has allowed artists (of all kinds) to create art for a living. People do not invest R&D dollars when there is no return on money. Stephen King will not write a novel when he can sell only a single copy and thereafter have the entire world be able to read it for free.

    I’ve said this before, and it is worth repeating. The system that Bobby advocates puts a premium on the best copiers. On the other hand, the current intellectual system protects innovators/artists from copiers. Personally, I think society, as a whole, is better off when the innovators/artists are protected rather than the copiers.

  59. Bobby is quoted as saying “Generally, competition is regarded as a good thing by most modern economists, so excluding competition is by itself socially undesirable.”

    Absolutely correct, Bobby. However, what competition is there for a product that has not been invented yet? Zero, Zip, Nada. And for a product that is on the market, but only because the producer can keep secret how he/she/it produced it? Zero, Zip, Nada.

    Patents encourage competition by allowing competitors to see how the inventor did it and then giving them the incentive to invent around if they can, or to tool up to compete when the patent expires if they can’t.

    Most real monopolies are obtained from strong financial clout, and it takes a legal mechanism like a patent to compete with that monster. Thus, patents are the antidote to monopoly.

  60. JV,
    “As I argued in another thread, Bobby only looks at one part of the whole and doesn’t look at the offsetting factor, which is “innovation is regarded as a good thing by most modern economists, so removing all incentives for innovation is by itself socially undesirable.””
    First of all, I specifically said that was not how I phrased things myself for this conversation, but was showing Stan how he had asked a question in a loaded way. Anyway, not having patent is not removing all incentives, as nature provides a fair amount them itself. It’s not granting supracompetitive incentives. I’ve specifically mentioned the offsetting factor as the economic reasoning for patents. That doesn’t mean the theory actually holds water, though.

    “Bobby counters this by relying upon his “free love, free software, patent communism” philosophy – which is that people will still invent, will still create great works of works, and will do so for free because the human race is an altruistic group that only has the best interest of the group in mind.”
    I agree that people will still invent and create works of art, but the rest of what you said is not my position. Again, calling it communism and making irrelevant comparisons to free love strongly suggests you lack a real argument.

    “He assumes that everybody will disclose their inventions because … well … that is the socially accepted thing to do. He ASSUMES disclosure will occur just like he ASSUMES invention will occur. These are poor assumptions.”
    No, I assume that nobody sensible seeks a patent on something they can commercialize while keeping secret indefinitely. If you believe some of the posters here at least some of the time, most anything will be copied before an inventor can recoup an investment. For example, you said that ending patents removes all incentives. However, if trade secrets are rarely going to become public knowledge, than inventors have plenty of incentives already. Again you can’t have your cake and eat it too, and certainly not in the same post.

    Perhaps you should try arguing with me instead of constructing a strawman and attacking it.

  61. Perhaps you should try arguing with me

    Bobby, when all you offer are strawmen, what else can people attack?

    Your philosophy is morally bankrupt.
    Your ideology is built on the sands of kitty litter.
    Your anti-patent stance crumbles under scrutiny.
    There really isn’t a contest of minds here because you haven’t shown anything.

    You seem to lack any depth of real world experience to buttress your academic views and mere proffering of “theories”. A word of advice: patents are for real world protections. Patents are real world property. You need to get out of the tower and walk on solid ground for awhile if you want to be taken seriously (or if you want to put together a cogent and serious position).

  62. BD,
    Attacking arguments I did not make is a strawman fallacy. For example, JV claimed that I think we’ll be fine without patents because we are altruistic. I have not made that claim, at least not for the general population, and denied that claim several times. He’s also claimed that I love Linus Torvalds’ because I quoted Linus’s Law (incidentally, the law actually came from Eric S. Raymond, and the law was about a development process for which Linus and the Linux kernel are the most visible examples of). However, I have quoted Edison and Giles Rich in a positive manner on several occasions, despite having a low opinion of both of them.

  63. “Anyway, not having patent is not removing all incentives, as nature provides a fair amount them itself.”
    Today’s global economic system provides very few benefits for being a first innovator. Copying is too easy and can be done too cheaply. The best innovator is rarely the best manufacturer/distributor. As such, in your perfect world, those that innovate will be left in the dust by those who can market better and provide cheaper products. If you don’t think that is true, walk into your local Wal*Mart or Target and tell me how long it takes you to fill up a basket with products made in the US of A.

    “I agree that people will still invent and create works of art.”
    Not nearly to the extent that they are today. Our intellectual property law fosters MORE invention and more art. Society, as a whole, is better off having more inventions and more art, even if it is at a higher price, than less inventions and less art. We can agree to disagree on this point. I champion innovation and art – you champion copiers.

    “Again, calling it communism and making irrelevant comparisons to free love strongly suggests you lack a real argument.”
    Calling it “free love” is a little needle that I like to poke at you – to apparent great effect.

    As for communism, it is a great analogy. Let’s look at one of those websites that promote “free love”: creativecommons.org. They are talking about “commons,” from which commune is derived. From the front page of their website: “Creative Commons helps you share your knowledge and creativity with the world.” Sounds like a statement out of Chairman Mao’s “Little Red Book.”

    Another great statement: “Creative Commons aspires to cultivate a commons in which people can feel free to reuse not only ideas, but also words, images, and music without asking permission — because permission has already been granted to everyone.” Again, sounds like communism to me – the entire commons/commune benefits from the labor of the individual. Moreover, since everybody has permission to use the “ideas, but also works, images, and without asking permission,” no money need change hands (i.e., the individual doesn’t get paid).

    “No, I assume that nobody sensible seeks a patent on something they can commercialize while keeping secret indefinitely … inventors have plenty of incentives already.”
    Very few things work well with trade secrets. If you were an engineer, you would appreciate this. Reverse engineering is too easy on almost anything. As such, once you sell it, your trade secret is pretty much useless. Also, it is probably more expensive (in terms of time and effort) to maintain a trade secret than it is to obtain a patent.

  64. JV,
    If you think the first inventor typically has very few advantages, than you must concede that disclosure theory has little merit, and your argument that “He ASSUMES disclosure will occur just like he ASSUMES invention will occur. ” is utter garbage, in addition to the fact that I didn’t assume that. Again, you constantly attack arguments I didn’t make, with the most likely reason being that you don’t have an actual argument that can stand up.

    “Our intellectual property law fosters MORE invention and more art.”
    That does not appear to be the case to me.

    “I champion innovation and art – you champion copiers.”
    That’s a wonderful false dichotomy. Of course, it would have a lot more meaning if copyright and patents only affected pure copying, and if I held that copyright and patents actually do produce more innovation.

    “Calling it “free love” is a little needle that I like to poke at you – to apparent great effect.”
    The effect is that it exposes you as not having an argument was substance. You might as well be typing “Just Visiting is an incompetent fool” instead. You can continue to do this, but I will call you out for making a completely irrelevant reference that tries to appeal to a fear of a boogeyman that’s long been off the radar.

    “Again, sounds like communism to me – the entire commons/commune benefits from the labor of the individual. Moreover, since everybody has permission to use the “ideas, but also works, images, and without asking permission,” no money need change hands (i.e., the individual doesn’t get paid).”
    Creative commons does not mean the individual doesn’t get paid. You are also missed the repeated references to the freedom part, which is the most important part of red-blooded American capitalism. One problem with trying to tie patent policy to economic systems is that the economy of the tangible is quite different from the economy of the intangible. Even if it is in line with communism, it doesn’t mean it isn’t in line with capitalism as well, as hardliners from both camps may see patents as a bad idea. Furthermore, if it were that case that markets with freer competition were somehow very communist but very much not capitalist, it doesn’t make it a valid argument on the policy itself. You are just bringing up yet another boogeyman that hasn’t been a concern for a long while.

  65. Bobby,

    All I see from you is spin and theory. What BD is pointing out as far as the “strawmen” is that you have provided nothing of substance (the rest of BD’s comment at #61 still applies and still begs for a response).

    You clamor in reply that those putting you down don’t have actual arguments or only address boogeymen that have “not been a concern” for a long while, yet you really don’t have anything yourself but theory and unrealizable suppositions.

    Meanwhile, whether or not you think comments such as those provided by JV “just bring[ ] up yet another boogeyman that hasn’t been a concern for a long while,” the comments ring true and do identify the basis of your philosophy. You have not chased the “boogeyman” away by saying “that hasn’t been a concern for a long while.” In fact, what you have done, is admit that the basis exists, even though real world applications of communism have failed so miserably that no one in their right mind has tried that philosophy in practice for quite some time. You have not dissuaded anyone from identifying the “bankrupt” (morally or otherwise) philosophy of communism with the basis of the philosphy you advance.

    I have to ask: Do you have any “real-world” experience? Do you have anything real to offer? All I see is what BD coined as “invitations to come into the tower of your castle built on the sands of kitty litter.

    You have offered nothing compelling.

    I do not know what your goal is, or what you hope to achieve, but you are suffering from a seriously ingrown academic mindset if you think that mere theory will be effective against theory and actual practice. If you want ot have some success as a change agent, you will need to understand that more is required.

  66. Anon-

    And here I thought it was just because I was asking *loaded questions*, whatever that means. One example of a seriously *loaded* question is: “So tell me, when did you stop beating your wife?” It took more than 300 US Congress folks more than 8 year to change US patent law, and literally 100’s of millions in lobbying efforts to get to where we are now. I don’t like the majority of it, but I was out-voted it would seem, so I will just have to deal with new laws as best I can. The suggestion that a single person can decide what is best for society with mere theories seems a bit delusional to me. But to each their own I suppose.

    Ciao,
    Stan~

  67. @BD – The fact that you think my posts show an ‘anti-software patent leaning’ demonstrates your complete failure to actually engage with and comprehend the points that I am trying to make. And if you cannot follow my reasoning, it is hardly surprising that you have a problem with Lemley. My technical background is in electrical engineering, IT and software. About 80% of my practice comprises telecommunications, internet technology and software clients. On my own blog I have been campaigning against the recent trend in the Australian Patent Office to restrict software patent claims, and the proposal in New Zealand to exclude computer programs from patentability. I am even an inventor (not sole) on a US patent relating to a computer simulation technology.

    So I am afraid it is you who is, as you so coyly put it, talking out of your a$$. Perhaps if you were less intent on telling other people how wrong they are, you would be able to engage in an actual conversation.

  68. Anon,
    My primary purpose here is being stimulated intellectually. If I happen to change a mind, that’s wonderful, but I don’t have particularly high hopes for that, because this blog’s primary demographic would tend to be those are proponents of strong patent systems.

    As for communism, it’s a bad argument, and a pointless one. While implementation of communism as a whole have largely been regarded as failing, that doesn’t mean that they were wrong on all counts (and this is of course assuming that this policy is one that actually WOULD be adopted by communists). Furthermore, implementations of communism and the theory of communism are quite different. Communism in practice is often quite authoritarian, while a lack of patents would be more correctly regarded as a libertarian or anarchist ideal. You may remain unconvinced, but I’m not going to lose any sleep over your poor judgment.

    Stan,
    You are putting far too much stock into the weight I think my view carries. I don’t expect people to unilaterally bend to my will. At best, I might convince people to agree with me, and reform in what I perceive as the right direction could occur. That said, not having patents means NOT deciding what is best for everyone, because patents exist solely through legal force and their stated goal (in the US at least) is action for the public good. There’s not really any tyranny in wishing to be left alone.

  69. Bobby-

    Quite to the contrary in fact. I was trying to politely address Mark L’s premises, and the lack of a name was intentional. to see who would bite. I spent about 2 months full time finding signatories to an Inventors Letter to the Senate that I wrote, protesting the passage of the S. 1145 legislation, for very specific reasons, and managed to get about 235 signatories, probably representing at least a thousand opinions. Through a sympathetic staffer, I managed to get the letter into the internal Senate e-mail system, and even got a receipt of received from both Senator Harry Reid and Senator Mitch McConnell’s offices.

    I am not so foolish as to think that either of them actually read the letter, but perhaps the presence of some of the more prominent signatures might have made them want to think twice about things. The letter has a specific Senate reference number, so it can be recalled later if needs be.

    Off to wire up my new wind turbine prototype before the winds sweep in with a vengeance in a few weeks. Videos of an actual device actually Working will probably be a lot more profitable and productive than considering your latest theories. (And Much more enjoyable!)

    Bye for now, cause I gotta fly….
    Stan~

  70. With all (undue) respect Mark,

    Bite me.

    If you do not understand what Lemley is all about and if you think for a moment that he is patent-friendly, well, the saying of “With friends like this, who needs enemies.” comes to mind. There is nothing coy wiht noting that Lemley talks out his a@@ – that is the gist of the rebuttal posted by the respected Katznelson, after all.

    You are so quick to jump to the invective yourself, you might want to heed your own advice. And this was even after I was willing to cut you some slack for being based in a different legal system – yet you don’t know anything about me and are so quick to jump to some seriously wrong conclusions.

  71. BD-
    I think I will start playing around with Chamomile a little bit, which grows like rabid weeds hereabouts if given half a chance. The tea is very soothing and all soft and squishy and all like that, so the kool-aid version might be a bit of a challenge. Maybe a bit of mint to keep one awake long enough to enjoy it, with a slight hint of Eucalyptus for a tangy aftertaste.

    All the best-
    Stan~

    BTW-

    I just got this from the folks at MBHB for attending their webinar, and they are having another one on October 19th last I heard, but a few hours earlier. Unfortunately WA state is not listed as an accredited venue.
    “““““““““`
    Thank you for attending our October 5th seminar on the America Invents Act. Having answered both polls to assure attention/attendance during the seminar, we are happy to advise you are eligible for MCLE credit.

    The seminar has been approved for 1.25 hours in Illinois, and is currently pending in California, Georgia, New Jersey, New York, North Carolina, and Virginia.

    Should you want to report credit, please reply with your state bar(s) information no later than October 21, 2011.

    Thank you again for your participation. We hope you enjoyed the seminar.

  72. You’re right, BD, I know absolutely nothing about you, other than the opinions you post here. And I never will, because you choose to keep your true identity a secret, as is your right. But you have no excuse for posting characterisations of me that are manifestly false, because in two or three mouse clicks you can find out exactly who I am, where I work, and what I think about a range of relevant topics.

    As for me being quick to jump, either to invective or conclusions, I think you’ll find that the record shows that accusation to be manifestly false also. I have already posted a number of comments addressing the issues, not the personalities. But since I am not anonymous here, you surely didn’t expect that I would not post some response to a comment that included such a gross misrepresentation of me and my views? And there is no ‘invective’ in any of my comments, other than my ironic reflection of your own mild abuse.

    And to get back on-topic for a second, I completely agree with you about the absolute correctness of the legal directive that patentability should not be negatived by the manner in which the invention was made. That is also the case here in Australia (although we have never had a court issue a decision so blatantly stupid that we would have needed to enshrine it in statute).

    This discussion is not about whether innovation is the result of years of hard grind, a blinding flash of inspiration in the shower, or sheer dumb luck. If you think it is, you might want to re-read what I have written a little more dispassionately, and think a little more deeply.

  73. I note that Lemley says that Howells and Katnelson did not challenge the telephone as being simulataneous invented. Since they did not, I will.

    Two entities have looked in depth at Elisha Gray being a “simultaneous” inventor. The Canadadian parliament had an in-depth study conducted and concluded the Elisha Gray did not invent the Bell’s telephone and Gray did not understand how his own invention worked. A separate author published an extensive paper in “Invention and Technology” magazine within the last year that once again asked whether Gray invented the telephone. The author’s conclusion was, surprise, Gray not only did not invent the telephone, Gray did not understand how his own crude device worked.

    When Gray demonstrated the telephone that supposedly worked better than Bell’s, according to some critics of Bell, what those same critics failed to point out was that Gray demonstrated a telephone built on Bell’s principle, not on Gray’s!!! Yes, you have it, Gray’s “telephone” was a copy of Bell’s, not the version that Gray submitted in his caveat.

    It gets even better. There were more than 600 contemporary challenges to Bell’s patent, alleging everything from Bell having copied Gray to not understanding his own invention. One of the challenges was backed by the U.S. government, who tried to eliminate Bell’s patent. All 600 challenges failed! What a shock.

    The bottom line is that the telephone was invented by Alexander Graham Bell. Elisha Gray came up with a liquid transmitter that he improperly described in his caveat. Why do some people claim that Bell was an also ran? Perhaps the biggest reason is that Bell’s prototype used a liquid transmitter. But Bell knew a liquid transmitter was impractical, so he had to take the principal of the liquid transmitter and make a feasible device. Here is where the real genius arrives. Gray did not understand how his own liquid transmitter worked, so he was at a technological dead end. Bell, on the other hand, did understand why the liquid transmitter worked and he believed he could perform a similar function with an electromagnet transmitter. Wow.

    I repeat, Bell was never a simultaneous inventor. Had Bell not created his telephone, there was no one else with his knowledge and skills close enough to a working telephone to have pulled it off for at least several years, if not longer.

    Now, let’s go back to the Lemley paper. Lemley claims he outlined 33 inventions in his paper. That could be. I got stuck on the two cites early on in his paper which he claims are studies on how inventions are simultaneous. I read the two papers and what did I get? Simultaneous discovery of sunspots. Simultaneous invention of calculus. Simultaneous discovery of this and that. Wait a moment. What happened to invention, because NONE of these examples are inventions. Then the authors blithely throw in that everyone knows that Elisha Gray and Alexander Graham Bell invented the telephone at the same time. What?

    Fundamentally, Lemley seems to have built his paper on two distortions. First, that scientific discoveries, which are not patentable, by the way, are equal to inventions. Second, that just because someone repeats something often enough, it becomes fact.

    Let’s take another look at another “simultaneous” invention, the separate condenser of the steam engine. Wait a moment, Lemley spends a page on Watt and complaining about how he locked up technology, but never provides evidence of simultaneous invention. Say what? Indeed, he points to Watt’s patent being the impetus to developing an alternate, competing technology. Well, duh, that is supposed to be a benefit of patents. But let’s take a quick look at Watt.

    The anti-patent folks love to point to Watt as being a huge stumbling block in the development and adoption of the steam engine. There was a paper written in the last year (I leave it to you academic types to find it – I read it and it was quite revealing, so it is out there) that took an objective look at why adoption of the steam engine was so slow. Guess what? It had nothing to do with patents, or very little to do with patents. The reason for slow adoption of the steam engine is that power fundamentally is a commodity. The cost of steam power was much greater than the alternatives, which meant that steam was used only in those few places where the benefit exceeded the cost, which meant river boats. The cost of steam was so high that vessels did not regularly use steam to cross oceans until decades after Watt’s patents had expired and Watt was dead.

    33 inventions supposedly cited, with the two challenged in the critique and my two more, that leaves 29. I wonder whether they stand up to scrutiny?

    Now here is absurdity. Lemley says that because only half of all patents are issued among all those filed, that is evidence of simultaneous invention. Ummm…no. Wrong. Many of those applications fail because the inventors decide not to pursue them for business or financial reasons. Many of those applications are rejected because of patents EXPIRED long ago. To be academically honest, Lemley cannot just pull the number of rejections out of his behind as evidence of simultaneous invention. What he needs to do is examine each patent that was rejected and determine whether a cite was indeed simultaneous, otherwise citing rejected applications as evidence of simultaneous invention is pulling the wool over everyone’s eyes.

    I could go on. Lemley’s paper has weaknesses. He can either fix them, or he can continue to go on with weak evidence of simultaneous invention that weakens his paper with every challenge. It is not looking good right now.

  74. What constitutes “simultaneous?” Within an hour of each other ? a week? a year? a decade? a century?

  75. “What he needs to do is examine each patent that was rejected and determine whether a cite was indeed simultaneous”

    According to Lemley, how close does the timing of two inventions have to be in order for them to be considered “simultaneous”? How similar do they have to be in order to be considered “the same”?

  76. But you see, Lemley never defined simultaneous. The dictionary definition of “simultaneous” is literally “at the same time.” A day apart is not simultaneous. However, getting away from the likelihood that Lemley did not actually mean “simultaneous,” but is in fact yet another word or “fact” that he throws around freely without ever supporting it, I would be happy to see any evidence that the more than 7 million patents granted for invention were invented by someone else within a couple of years of the inventor recognized by the USPTO.

    Good luck with that.

  77. Note the following information from Wikipedia regarding Gray and Bell:

    Although Bell was accused, and is still accused, of stealing the telephone from Gray,[38] Bell tested Gray’s water transmitter design only after Bell’s patent was granted and only as a proof of concept scientific experiment[39] to prove to his own satisfaction that intelligible “articulate speech” (Bell’s words) could be electrically transmitted.[40] After March 1876, Bell focused on improving the electromagnetic telephone and never used Gray’s liquid transmitter in public demonstrations or commercial use.[41]

    When Gray applied for a patent for the variable resistance telephone transmitter, the Patent Office determined “while Gray was undoubtedly the first to conceive of and disclose the [variable resistance] invention, as in his caveat of 14 February 1876, his failure to take any action amounting to completion until others had demonstrated the utility of the invention deprives him of the right to have it considered.”[42]

    Note that while one might say based on this statement that Gray had “simultaneously” invented the telephone, there are two problems with the “simultaneous” invention. First, Gray was actually last to build a device. In USPTO parlance, if Gray had in fact invented the device before everyone else, he had suppressed the knowledge, which means that Gray was doing exactly the opposite of why the patent system was created in the first place. The second problem is noted earlier in the same Wikipedia article:

    The following quote forms part of the alleged ‘additional information’ in Bell’s patent application, which he has been accused of stealing from Gray’s caveat:

    ““For instance, let mercury or some other liquid form part of a voltaic current, the more deeply the conducting-wire is immersed in the mercury or other liquid, the less resistance does the liquid offer to the passage of the current.”

    Though the advisability of using mercury in his device has been questioned, it is Bell’s description of how the conducting-wire is immersed, (more or less deeply), and the effect on electrical resistance that this does have on the passage of current in “other liquid”, that proves his understanding of undulating current and variable resistance in this device, at the time of his patent application. This is information that is not found in Gray’s caveat, is extremely unlikely to have come from any other mind than Bell’s, and which Bell’s supporters feel is superior to Gray’s description. Bell describes here the method with which his liquid transmitter of March 10th 1876 was built and operated.”

    The bottom line is that Bell’s device and Gray’s device were two completely different animals. Bell did not build any devices using Gray’s method of design, and went a completely different direction after buildilng his prototype.

    Gray was close, but his lack of understanding of how his transmitter worked and his failure to pursue actual building of a device means that all Gray had was an idea rather than a device. So, when one is saying that Gray “simultaneously” invented a telephone with Bell, it would be more appropriate to say that Gray “simultaneously” had an idea that he never proved out at the same time that Bell built a working device.

    Seems as though the case is closed, and Bell won.

  78. It seems that we are not clear on what the word “invent” means
    and also what it is (the “invention”) that specifically has been invented.

    So when we argue about Bell versus Elisha Gray, we might be talking past each other.

    What is clear is that some untoward shenanigans took place at the USPTO in its handling of Gray’s supposedly “secret” filings.

  79. p.s. It seems no one above has posted the following wiki link:

    http://en.wikipedia.org/wiki/Elisha_Gray_and_Alexander_Bell_telephone_controversy

  80. I do owe a response to Mark – sorry Mark, the work is steamrolling in,and you will have to wait for your just put-down.

  81. […] Lemley Responds: Defending the Myth of the Sole Inventor […]

  82. Gene,

    Professor Lemley is not a patent attorney, does not understand patent law, does not understand how claims work, and is a Charlatan. Yes there are INDIVIDUAL INVENTORS. Mr. Lemley does not even understand the differences between what Edison and Swan invented. His so called research is nothing but Propaganda and He should be fired from Stanford and any self respecting school.