By far, most inventions are improvements upon other known devices or solutions. In fact, whenever I teach patent law courses I tell students that in their career as a patent attorney they are unlikely to ever come across a pioneering invention (i.e., first of its kind, revolutionary invention). Even the great Thomas Edison, the most prolific inventor in US history, rarely came up with pioneering inventions. What Edison really had a knack for was taking something that someone else had come up with and making it extraordinarily better.
For example, perhaps Edison’s most famous invention was the light-bulb. Truth be told, however, Edison didn’t really “invent” the light-bulb. Edison significantly improved upon the technology by developing a light-bulb that used a lower current electricity, a small carbonized filament, and an improved vacuum inside the globe. Edison’s invention lead to a reliable, long-lasting source of light. Prior to Edison’s invention light-bulbs lasted only a few hours, but after Edison’s improvement light-bulbs could last 50 to 60 days, making them practical for the firs time. So it is entirely fair to say that Thomas Edison invented the first commercially useful light-bulb, which was an improvement on previously existing light-bulbs.
So the first lesson here is that inventors can and most frequently are those who improve upon the work of others. The second lesson is that those inventors who focus on improvements can be quite successful indeed! By focusing on improvements you already know a market for the underlying product exists, which takes away one of the largest hurdles to commercial success. After all, if you are inventing something that is the first of its kind you will need to spend time and considerable financial resources to educate the public so that they understand why they need the product/invention that had heretofore never existed. Creating a market is not easy, so many successful inventors stick to improvements.
EDITORIAL NOTE: Each year February is Black History Month, but this year we will also mark the 50th anniversary of the Civil Rights Act of 1964. With this in mind we decided to do a series celebrating the important and innovative contributions of African-Americans. This article about Granville T. Woods, one of the most prolific and influential African-American inventors of all time, kicks off our celebration. Mr. Guttag also wrote God’s Scientist: George Washington Carver as a part of this series. Later this month we also will take a look at recent innovations coming out of historically black colleges and universities. For more on this topic please visit black inventorson IPWatchdog.com.
Granville T. Woods circa 1887.
As we’re about to celebrate the 50th Anniversary of the Civil Rights Act of 1964, it’s appropriate to mention my interest in the biographies of African-Americans, and especially African-American inventors. For the past three Februarys, I’ve done presentations at our local library in conjunction with Black History Month and Martin Luther King Day. My presentations in February 2012 and 2013 focused on two significant African-American inventors. In this first article, I’m going to talk about my fellow Ohio native, Granville T. Woods, often referred to as “The Black Edison.”
I’ve now forgotten how I stumbled across Granville Woods, but once I did, I was amazed by his creative talent, as well as the prolific and diverse number of inventions he came up with. As a patent attorney now of over 36 years, I also became intrigued about how well Woods understood our patent system, as it existed in the late 19th Century, and tried to take advantage of it. As I also discovered, Woods wasn’t often successful in his entrepreneurial efforts to exploit what he invented, for reasons not always within his control, including, unfortunately, the fact that he was black. But he was certainly persistent in those efforts, and was later recognized for his truly creative genius by being inducted into the National Inventors Hall of Fame (now located in Akron) in 2006.
Benjamin Franklin may be the most famous American inventor, owing to his dual role of world famous inventor and Founding Father and Statesman, but the most prolific and influential American inventor of all time was undoubtedly Thomas Alva Edison.
134 years ago, on January 27, 1880, Thomas Edison received U.S. Patent No. 223,898, which was simply titled “Electric Lamp.”
Figure 1 from U.S. Patent 223,898.
In addition to be the greatest inventor of his time, Edison also had a way with words and explaining concepts. He is famously reported to have quipped that failure really isn’t failure at all, but a success in disguise, reportedly saying: “I have not failed 10,000 times. I have not failed once. I have succeeded in proving that those 10,000 ways will not work. When I have eliminated the ways that will not work, I will find the way that will work.” He also famously explained: “Genius is one percent inspiration, ninety-nine percent perspiration.”
I am in New York City this week taping the new patent bar review course, which is a part of our effort to bring the course current with the latest changes in the law and rules that will begin to be tested starting April 2, 2013. After a long day of lecturing and preparing materials and writing questions, I had dinner and found myself sipping a drink at Randolph’s, which is the bar attached to the Warwick Hotel, where I stay when in New York City. Unwinding from the day I decided to catch up on news – for me that means reading Politico or The Hill typically. I learned that Rand Paul engaged in a filibuster over drone strikes and Jeb Bush is on a book tour and folks are speculating about whether he will run for President in 2016. But I also learned that the self-appointed anti-patent billionaire idiot – Mark Cuban – was at it again. I quietly asked for the check and excused myself from an otherwise enjoyable evening of relaxation. Mark Cuban is an idiot!
Mark Cuban, the flamboyant owner of the Dallas Mavericks, has said some truly ridiculous things about patents. Recently, he complained to Tech Crunch about patent lawyers that “make too much money,” which is something that only a truly out of touch billionaire could rationalize. Really? A capitalist billionaire complaining about anyone making too much money ought to be a bridge too far for anyone. But Cuban doesn’t stop there, he talks about “dumbass patents,” and how patents on things that others later figure out ought to be invalidated. As if hindsight doesn’t make everything obvious in retrospect. Seriously, if he really holds these thoughts it has to be a complete accident that he managed to become a billionaire.
But this time it wasn’t that Mark Cuban made this idiotic and completely indefensible statement about the patent system that got me started. Nevertheless, he is still to blame. You see, Julie Samuels is the “Mark Cuban Chair to Eliminate Stupid Patents” at the Electronic Frontier Foundation. What a title! The Mark Cuban Chair to Eliminate Stupid Patents? And folks are actually supposed to take this seriously?
WASHINGTON — The U.S. Commerce Department’s United States Patent and Trademark Office (USPTO), the National Science Foundation (NSF), and NBC Learn, the educational arm of NBC News, today launched an 11-part “Science of Innovation” series to coincide with the 165th birthday of American inventor Thomas Edison. The program represents the latest intellectual property (IP) education efforts by the USPTO and serves as a public-private partnership leveraging the best strengths of federal agencies, industry, and educators to demonstrate the connection between IP and the science, technology, engineering and mathematics (STEM) fields.
Narrated by NBC News’ Ann Curry, the series features innovators from across the country, including scientists and engineers working on projects in industries as diverse as healthcare, energy, transportation, agriculture, and more. “Science of Innovation” looks beyond the popular concept of innovation as the result of a single event or brilliant idea. Instead, it examines the processes and steps that anyone from a garage tinkerer to a federally funded scientist can take to discover new solutions to pressing problems or to add value in new ways to existing products, services or technologies.
Between the legacy issue of bad patents, patent auctions and the many who purchase patents, what has started to happen is that the patent system rewards those who have the finances and ability to game the system. But the problem is extraordinarily complex. What is clear, however, is that the enforcement of bad patents is a problem within the patent and innovation industry.
But at the same time it would really be GREAT if the media and anti-patent community would get a clue and understand that the problem with bad patents is largely a legacy issue. Those that say that the United States Patent and Trademark Office continues to hand out dubious patents like candy are flat wrong. The bad patents that we witness being used in unsavory shake-downs have not been granted over the last few years, but rather were granted many years ago, under a different patent regime and when there was little findable prior art for patent examiners to use.
Those that pretend that bad patents issue today by the dozen and for a dime are living in a fantasy world that does not approximate reality. Yet the misinformation continues, undaunted by reality. So if reality doesn’t support the mountains of misinformation about the patent system and how it operates today, what is going on?
To hear some critics tell it, the explosion of patent suits in the smartphone industry is evidence of a patent system that is fundamentally “broken,” at great cost to U.S. innovation.
Such histrionics, however, ignore one crucial but little known fact: throughout American history, the buying, selling, and litigating of patents has always been essential to U.S. economic success. Not only that, the truth is that today’s patent litigation rate is less than half what it was in the mid-19th century, a period widely-recognized as the “golden age” of American innovation.
In my experience, the passion to invent is stirred by two things: dissatisfaction with an existing product or service (i.e., too large, too slow, too expensive, too difficult to use), or a dream and desire to create something entirely new, a product or service that will augment humanity’s capability to reach farther, move faster, aggregate and analyze all sorts of data, or bring together pieces and form a whole that is greater than the sum of its parts.
Over my career I have been a named inventor on 147 U.S. patents. Over my career I have developed a process for identifying consumer needs and creating unique, patentable solutions that are relevant in the marketplace. I call this the Eureka Method. The Eureka Method is a mental discipline that can be learned and practiced to help you produce a Eureka! moment. You may call it an epiphany or a flash of insight, brilliance, or creative genius. It’s that moment when an inventive solution finally crystallizes in your imagination. I call this critical event a “Eureka! moment” in reference and tribute to Archimedes who had been wrestling with the problem of certifying a goldsmith’s claim that the crown he had made for the king was of pure gold. Upon solving the problem Archimedes exclaimed, “Eureka!” Translated, the Greek word means “I found it!” He had his solution and I found the title for my book.
In his October 9 response, Lemley asserts that our critique engaged in ad hominem attack. Our critique notes that he “neglected” to mention critical facts, that “his scholarship is unreliable,” and that “no reader should take his radical proposals for new patent law seriously.” We regret that Lemley regards this treatment of his treatment of sources as ad hominem attack on him. Our critique is directed to defects in his work.
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.
In a forthcoming article in the Michigan Law Review, Professor Mark Lemley advances a thesis that “the canonical story of the lone genius inventor is largely a myth” (Lemley 2011, p13) and describes a selection of pioneer inventions to support his thesis. We show that Lemley has his facts wrong. We examine his assertions and we set the record straight in the pioneer invention cases of Edison, the Wright brothers, the Selden automobile patent vis-a-vis Ford, Watt and the steam engine and Fleming and penicillin (for the full article, see: A Critique of Mark Lemley’s “The Myth of the Sole Inventor”). In contrast, we show that “the lessons of history”, when informed by consultation of relevant patents, legal decisions and patent law not only do not support Lemley’s central thesis, but offer valuable insights into how patents and innovation work together to foster development.
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. We deny patents on inventions that are “obvious” to ordinarily innovative scientists in the field. Our goal is to encourage extraordinary inventions – those that we wouldn’t expect to get without the incentive of a patent.
The canonical story of the lone genius inventor is largely a myth. Edison didn’t invent the light bulb; he found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of U.S. Reports resolving the question of whether Bell could have a patent despite the fact that he hadn’t actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk, but their plane didn’t work very well, and was quickly surpassed by aircraft built by Glenn Curtis and others – planes that the Wrights delayed by over a decade with patent lawsuits.