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
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.