A Critique of Mark Lemley’s “The Myth of the Sole Inventor”

By Howells & Katznelson
September 15, 2011

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.

Lemley’s scholarly-appearing article of more than 250 footnotes and over 100 pages is not a work of reliable scholarship. This matters, because on the basis of his error-ridden analysis of what he calls the “lessons of history”, he argues the following patent law:

If we are supposed to be encouraging only inventions that others in the field couldn‘t have made, we should be paying a lot more attention than we currently do to simultaneous invention. We should be issuing very few patents—surely not the 200,000 per year we do today. And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention. (Lemley 2011, p5).

We believe Lemley’s evidence does not support his case: we show that none of his examples we examine were near-simultaneous inventions. Lemley’s major thesis that these inventions would have been made “near-simultaneously” anyway by another has no basis in fact.

For example, regarding Thomas Edison, Lemley’s primary case illustrating the so-called “myth of the sole inventor,” he alleges that “Sawyer and Man invented and patented the incandescent light bulb” (Lemley 2011, p26) and that “Edison did not invent the light bulb in any meaningful sense” (Lemley 2011, p25). We disprove Lemley’s assertions and present five key facts that Lemley omits: for example, although Lemley cites a Supreme Court case in 1895 as a source for the statement above, he neglects to inform us of the decision reported in that case; it affirmed a lower court’s 1889 decision in favor of Edison and finding the Sawyer & Man patent invalid. Furthermore, the Sawyer and Man lamps were not commercially viable, having only a few hours life, whereas Edison’s invention was the basis for a lamp with a hundred times longer useful lifetime: electric lighting became economic and it was Edison’s invention that unlocked the field after three decades of experimentation by others in incandescent lamps. There was no candidate for an invention simultaneous with Edison’s invention.

Lemley presents the Wright brothers as another example of the so-called “myth of the sole inventor” and writes: “[t]he Wrights invented only a particular improvement to flying machines, albeit a critical one.” “Only a particular improvement” was the ability to fly: no inventor prior to the Wrights had achieved manned flight and no inventor after the Wrights achieved manned flight without either infringing their patent or crashing; even a case cited by Lemley on another point admits that (but he neglects to mention this). After decades of experimentation by others, it was the Wright brothers who recognized the critical need for, and achieved 3-dimensional stability in air.

Lemley presents the Wrights and their later rival Curtiss as an example of his “simultaneous invention” thesis; “both the Wrights and Curtiss, among others, were engaged in a conscious race to be the first to achieve powered flight” (Lemley 2011, p84-85). Lemley does not mention that the Wrights’ famous U.S. Patent No. 821,393 was applied for March 23, 1903 and granted May 22, 1906. Or that Glenn Curtiss’ expertise was only in motors, not flight and that Curtiss’ first attempt to enter the field was when he attempted to sell his motors to the Wrights in May 1906. The Wrights had finished the ‘race’ and won it before Curtiss even contemplated entering the field of aircraft manufacture.

Lemley’s errors are due in part to his abandonment of patent law’s precise notion of “invention” in favor of the naïve sense of this term used in parlance. He ignores the fact that the nonobviousness patentability requirement of patent law inherently ensures that “only inventions that others in the field couldn‘t have made” are given patent protection. Therefore, contrary to Lemley’s assertion, near-simultaneous inventions rarely arise as candidates for patent protection. Indeed, Patent Office statistics on independent applications by multiple inventors claiming the same invention (interferences) show that “simultaneous invention” is an extremely rare phenomenon. Lemley is chasing a non-problem.

Throughout his essay Lemley asserts that pioneer patents block or retard downstream development: the Wright brothers provide an illustration when Lemley writes without a source; “[t]he 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 Curtiss and others—planes that the Wrights delayed by over a decade with patent lawsuits. And on and on.” (Lemley 2011, p4). If Glenn Curtiss “quickly surpassed” the Wrights’ plane how could Curtiss also have been “delayed by over a decade with patent lawsuits’? It can’t be both – which is it? In fact, we show that Curtiss was never delayed by the Wright brothers’ patent despite being found an infringer of that patent.

Our article shows that no reader should accept Lemley’s assertion that the patent system does not work as patent theory suggests and no reader should take his radical proposals for new patent law seriously.

To read more about how Lemley was wrong about these cases and the cases of Watt and the steam engine, the Selden patent, Ford and the automobile and Alexander Fleming and the discovery of penicillin, read our full article here.

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Howells & Katznelson

Howells & Katznelson

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Discuss this

There are currently 26 Comments comments.

  1. step back September 15, 2011 3:56 pm

    @Ron:

    I would have liked to suggest that you take the good Professor Lemley to task for never having invented anything of his own and for living in an ivory tower.

    However, the professor has invented something, (probably not on his own) namely, a fantasy world regarding how patentable inventions come into being.

    Patent attorneys and agents who work in the trenches and thus come face to face with inventors from time to time get only a small taste of what’s like to start with a dream and work it up into an enabled and commercially viable invention.

    To truly understand what it takes, you have to be an inventor yourself (which IIRC, you Ron are). Even the many patent prosecution attorneys/agents who interface with the inventors usually do not have a full understanding of what is involved. After all, the inventor comes to them only after 1000 trial and error attempts have failed and one good one has been found.

    I fear the good Professor Lemley is many levels removed from that reality. From an ivory tower far above the muck and mud slings of the trenches, it is all too easy to pontificate on how it must be for the peasants who eat nothing but cake all day long and reap undeserved millions from merely ‘trolling’ under a technology bridge.

    Fair is fair of course; and perhaps we should theorize from our muddy trenches on what it might be like to be a lone professor up there in the ivory tower, toiling over one’s theoretical papers and receiving grants if and only if one spins things in a way to the liking of them that brung the one to the party?

  2. Vic Kley September 16, 2011 12:51 am

    I had a discussion with Mark Lemly at the end of July/early August concerning the “Myth of the Sole Inventor”. Being myself a sole inventor of many tens of things including core basic work in nanotechnology, CG and GUIs. Below is my last post to Mark. Some of the pints I raise I believe are new. The speed with which core problems and key ideas can propagate is critical to assessing “simultaneity” of invention.

    Mark,

    Actually there is another common occurrence, more difficult because it is not recognized as part of the invention itself. Just as the state contract NDA is an unrecognized but key part of the functional Federal Patent System.

    First to perceive and define the problem. Once done you find that the solution comes quite easily to those knowledgable in the field. Perceive and define is the key insight- sadly not recognized as far as I know by the USPTO since the problem is falsely treated as available to the art when it is not by most examiners touting “Obviousness” arguments.
    Inventors who foolishly circulate the problem can harvest many “simultaneous” inventors, many of whom can get to PTO before and with better solution sets then the original mind.

    As to actual simultaneity I’m afraid the computer does not qualify as you claim. It and papers and other communications regarding calculating engines predate WWII and were commonly circulated. The perceived need for improved calculating machines had been in circulation for decades. Significant implementation concepts came to Zuse in Germany in 1935 and to Aiken in the U.S. in 1937, but the true and accurate history needs more scholarly effort then I’m willing to expend.

    If you want to maintain simultaneity you must show a significant non-evolutionary invention where there was no publication or any possibility for other communication. For instance two sites separate in space by large distances and in time by a very small increment (less then an hour at any period after the telegraph- except where there was truly no immediate access to such communication means). This is your challenge if you are to maintain simultaneity.

    Among very bright people I have seen nothing more then a pensive look by a known creative person focused on an element of a problem inspire a brilliant but less creative person. Of course it sticks in ones mind because of the injury to society in which the brilliant mind gains the trust and power to create, while the creative person is purposely pushed aside as a threat and who knows what has been lost.

    The common occurrence of multiple groups in some level of communication working on the same or very similar problems is not an issue. The latter happens all the time and is the stuff of great battles. Occasionally it is the province of the Sole Inventor, if the novel solution comes from left field as perceived by the other players. I say this from experience having bested large groups a few times in my life, alone, from left field. How often it occurs in general I’m not sure but one thinks of Hero, Kilby, Browning and Franklin.

    Vic Kley

  3. step back September 16, 2011 5:07 am

    How often it [simultaneous invention] occurs in general I’m not sure but one thinks of Hero, [Jack] Kilby, Browning and Franklin.

    @Vic Kley:
    It’s good to have a few real inventors:
    http://patents.justia.com/inventor/VICBKLEY.html
    chime in on this issue of “simultaneous invention” and the false stories about it.

    I think everyone should read through the details of the above hyperlinked PDF, “A Critique of Mark Lemley’s ‘The Myth of the Sole Inventor’” by the above authors of this post (Ron D. Katznelson & John Howells) because they do a fairly decent job in the details of destroying the actual myth of “simultaneous invention” perpetrated by Lemley and his ilk

    I’m not sure how many people have bothered to study the details of the story of James Watt and the invention of what laypersons call “the” steam engine, see:
    http://en.wikipedia.org/wiki/James_Watt
    but often those who merely don’t know any better get the whole story wrong. (Watt invented a “combination” device that for the first time included the all important “condenser” in a steam-driven power plant. He did not per se invent “the steam engine” just like Edison was not the first to get light to come out, at least very briefly, from an electric current. I believe thunder storms including the phenomenon of electric “lightening” were around long before Edison was born.)

    You mention Jack Kilby of Texas Instruments fame. Probably many readers here are too young to know what you are referring to (the alleged invention of “the” integrated circuit or IC by Kilby). I too am too young to personally know what happened, but I have had the good fortune to run into people in Silicon Valley who were there at the time and can tell you first hand that the story of Kilby and the IC is a pure PR stunt by a certain company he worked for. Kilby did not think up or build the first “monolithic” IC made of silicon and having aluminum interconnect monolithically integrated as part of the IC. Only Robert Noyce (of Intel) did that. This is why “Silicon” Valley is in California and no Germanium Glen grew up in Texas. All hat and no silicon/aluminum cattle.

  4. step back September 16, 2011 5:17 am

    P.S. Mark your calendars: Sept. 16, 2011; a day in patent infamy.
    President Obama is slated to appear in Alexandria Va. to add his no-we-won’t-anymore signature to the AIA of 2011.

    http://www2.dailyprogress.com/business/2011/sep/15/uva-official-stand-obama-patent-overhaul-signing-ar-1313187/

  5. EG September 16, 2011 7:27 am

    “no inventor prior to the Wrights had achieved manned flight .”

    Ron/John,

    Actually, others had achieved manned flight earlier (gliders), but not powered (motorized) manned flight as did the Wright brothers in 1903 at Kitty Hawk. Also, the genius of the Wright brothers (captured in their original U.S. Pat. No. 821,393 granted in 1906) was the ability to control flight in all three orientations (pitch, roll, and yaw).

    If Lemley didn’t read Tom Crouch’s excellent biography of the Wright Brothers (The Bishop’s Boys), then I understand why he got the history wrong on the Wright brothers’ the significant contribution to powered and controlled manned flight. May be Lemley read instead Seth Shulman’s “sensationalized” book (Unlocking the Sky) which ascribes unsavory motives (reminiscent of “conspiracy theories”) to the Wright brothers that are completely (and more logiically) explainable (in Crouch’s book) by the “ethical” (if somwhat inflexible) character of Wilbur and Orville Wright.

  6. Bruce September 16, 2011 8:03 am

    Reminds of the old but invalid doctrine-hindsight reconstruction.

  7. Vic Kley September 16, 2011 8:23 am

    Examples are very important. Lemley’s points deserve more general discussion. Two key points are:

    Sole Inventors:

    Mark would have you believe that there are few if any single or “sole” inventors (no, not the fish or the music style). Yet in both the scientific paper world (frequently related to core inventions) and the patent world the first person listed on a paper or patent is expected to be the principal author/inventor. It is only a small step to see that if the principal inventor is the initiator of the invention (and they commonly are gathering others in to participate) that there is also the case where they are the only inventor or sole inventor. Anyone who has participated in an invention knows in fact that it is more often then not that the principal inventor stands out by their creative role.

    The Myth is only that when one encounters a many person (5 or more) list of authors or inventors that the last participants even read the article or paper specification. I know from actual depositions and legal testimony that all to often many listed as authors don’t write or read the product. Fraudulent claimants to inventorship are more common then you might think but since such claims if prosecuted can result in jail time and professional embarrassment it is more difficult to get people to make an admission.

    Myth of Simultaneous Invention:

    The coincident invention in which essentially the same thing is invented at the same time for important inventions is anything but itself a Myth. For knowledgable people a simple, even verbal communication can be sufficient to give insight into a new concept. Such communications are only limited by the technology of the times. Today such transfer can happen in minutes and result in apparent “simultaneous invention” measured in a few weeks or less. Very bad news for those who disclose to unscrupulous parties under FTF.

    Secrecy is more important then ever.

  8. the dude September 16, 2011 8:46 am

    both Lemley and you guys are wrong on one thing:when you think or talk about innovation and patents you’re focused on the United States only.If you would focus on inventions(and patents ) on a worlwide basis you would (hopefully) agree that simultaneous (or quasi simultaneous ) inventions or discovery are made in different places of the world particularly when they answer to a non fullfilled need of the market(particularly to-day):this is my forty something years of practical experience in international innovation and patenting in various technical fields which led me(and hopefully many of my fellow patent attorneys) to this conclusion.(have you ever seen the differences in Physics books among usa, europe(or inside europe) japan on who invented or discovered what?)
    now the conclusion of M.Lemley “We should be issuing very few patents—surely not the 200,000 per year we do today. And we should be denying patents on the vast majority of the most important inventions, since most seem to involve near-simultaneous invention. (Lemley 2011, p5).” appears to me totally disconnected from reality, because he obviously tells us that ideas or concepts are patentable and one patent should be granted to one idea.Did you ever listen to an iventor’s idea and first reduction to practice and try to figure out how to claim this damned invention (in view of prior art you got) and compare your claims to those of your fellow patent attorney who did the job not necessarily with the same prior art in hands!!good luck! see how different the invention looks like.
    the real problem is not the number of granted patents but the claims interpretation.

  9. Singer September 16, 2011 9:41 am

    FYI–I would like to read your full critique, but the link to the paper above doesn’t seem to work. I will keep trying.

  10. EG September 16, 2011 11:37 am

    Ron/John,

    Well done expose of how the “reality” of the facts punctures an “overinflated” academic “theory” about how/why inventions are created, and why certain inventions are “pioneer” inventions. Lemley has no excuse for this disingenuous article. I had the benefit of getting a BA (liberal arts) degree in chemistry, so I had to learn quite a few other areas outside science, including history, English, economics, and political science (if you can really call it a “science”) to name a few, and had to frequently defend what I wrote. What Lemley did here would likely have been “trounced” at my undergraduate school as “bad” scholarship (if you can even call it “scholarship”).

    You also recognized the important genius of the Wright brothers’ invention (“It was the Wright‘s invention that secured three-dimensional stability in the air and so unlocked the field”), just phrased it differently from what I said in my comment above (control of the aircraft in all three dimensions: pitch, control, and yaw). As you correctly point out, without that ability to “control” aircraft (much less powered aircraft) in three dimensions” discovered by the Wright brothers, aircraft (especially powered aircraft) were highly dangerous to fly, In fact, I would suggest Lemley ask any pilot of a F-117 Stealth Fighter or B-2 Stealth Bomber how they would avoid (literally) “crashing and burning” their aircraft without the Wright brothers’ invention of “three dimensional control” (those aircraft are also inherently unstable in flight and require that invention often “demeaned” by Lemley called “software” to fly under “three dimensional control” without “crashing and burning”).

  11. Vic Kley September 16, 2011 12:21 pm

    US or International it just does not matter today. The speed with which someones ideas can traverse the globe is breath taking, while the pressurre to hint at a solution has never been greater.

    So “dude” prove your contention. Show us the “simultaneous” invention of some significant invention- by this we mean two physically separated inventors finding and recording a more or less identical solution within one day of each other.

  12. the dude September 16, 2011 12:35 pm

    “US or International it just does not matter today. The speed with which someones ideas can traverse the globe is breath taking, while the pressurre to hint at a solution has never been greater”
    which means there is a lot more chances to make simultaneous inventions when you consider a sample of one hundred compared to a sample of one .
    please note i could have answered to your statement :”So “vic kley” prove your contention”.
    my statement(based on real experience of non-Nobel prize inventors) and yours are just “horse sense” statements.

  13. Stan E. Delo September 16, 2011 11:03 pm

    Ron K and John-
    Thank you very much for taking Professor Lemley to task for his creative use of hyperbole in his *article*. Just because he includes literally hundreds of foot-notes, it will Not make it magically scientific by any stretch of even my imagination. As SB has mentioned, it is a very different thing to pontificate from an Ivory tower above the fray, and actually Invent something, or try to represent someone who has invented something truly *new and novel*. He and other academics of his ilk that have never tried to prosecute a patent or have never invented anything will always be intrinsically biased to dismiss inventors and their inventions out of hand, for reasons that only they can not really understand. Why not just say No to the whole concept of patents in their Ivory Tower world?

    As regards their depiction of what the Wright brothers did or did not invent, their analysis could not be much more wrong, even were I to try to surpass it with my very active imagination. The real *invention* was the use of wing warping to control and alter the roll of the aircraft, which had never been done before, as far as I am aware of. Before then, roll *control* was achieved by shifting the weight of the pilot, like Lilienthal in Germany was doing with his gliders in the 1890’s or so, and which is still used currently with hang gliders to this very day. That might be suitable for gliders that are going about 40 MPH or so, but when you add a motor, everything starts happening Much more quickly, and the mass of the aircraft is radically increased.

    The use of wing warping (IE Ailerons) to control roll resulted in at least 4 times as much force available to control or alter the roll of the aircraft, which is the definition of the difference of being in control of your instant destiny, or not being able to control things, and perhaps crashing and very easily being killed because you were not smart enough to *invent* rudimentary ailerons. I might also add that the Wright brothers also spent a lot of time discovering how to build reasonably efficient propellers, by using a small wind tunnel to investigate what worked, and what did not. That is probably why they succeeded, but it had nothing really to do with their *invention*, per se. They have their apparatus for measuring the efficiency of their propellers here in Seattle at the Boeing Museum of Flight, which I found to be fascinating.

    As regards Lemley’s assertion of simultaneous invention in many cases, I think he is dead wrong, outside of Open Source inventing, which Vic Kley and Ron K and Ron Reardon are very good testaments to. In my case, I started with a fairly simple concept, which evolved through a few dozen iterations into what I have determined is the best mode that I have been able to discover so far. Since I was unable to *prove* them on paper, I had to build models of them to see if or how they worked, or try to weed out the *losers* before I got even that far. The models could be built for 40 or 50 bucks to produce new model rotors, but they were very expensive of my time, which is really all we have at the end of the day, Nicht whar?

    After finally deciding that I had arrived at a suitable invention, I did a Very extensive search, checked by a Very clever patent agent whose initials are David A. Kiewit, and guess what? There was and is not currently anything like it, unless there is a patent pending somewhere that I am not able to see yet, The closest art that I have found is horribly complex and expensive to manufacture, which has dozens of parts to bend or break, or worse yet, hydraulic circuits to leak, or micro-processors to fry during a lightning strike. No joke with this latter, as Boeing found out during the mid 80’s with their 285 foot diameter rotors that they installed on the edge of the Columbia Gorge here in Washington state.

    Cheers,
    Stan~

    BTW Ron- At least we tried very hard to prevent Patent Reform when we had the chance, however slim it might have been.

  14. step back September 17, 2011 5:11 am

    Now that we have shot the so-called factual underpinnings or legs out from under Lemley’s fantasy Universe (his made up stories about what the Wright Brothers did, what Mr. Watt did, etc.) it’s time to excoriate his false definition of the word “invention”.

    Not only is sole-inventorship not a “myth”, it is an everyday occurrence for almost every human being on Earth, even for the good Professor Lemley. He himself is a sole inventor.

    The question is not whether people “invent” on their own, but rather what subject area they “invent” in.

    Each night when you go to sleep, your brain “invents” a full feature movie composed out of bits and pieces of the daily events that are unique to you and your own personal life. It’s called a “dream”. When you awaken in the morning, you realize it wasn’t “real”. But nonetheless it was novel and unobvious and sometimes enlightening or disturbing and no one gave you the blueprint, road map or recipe for inventing your personal dream world that night. You did it all on your own. You were the sole inventor of your own dream.

    So you see, dear Professor Lemley; sole inventorship does happen.
    It may not happen every day.
    But it happens every night.
    To almost everybody on this glorious planet of ours.

    The readers of IP-dog may not be able to ascertain whether you, Prof. Lemley invented your fantasy history about the Wright Bros., about James Watt, etc. on your own or whether you had help from other parties in coming up (inventing) those fantasy stories (in which case it would be joint inventorship), but we do have enough facts collected here thanks to the efforts of John Howells & Ron D. Katznelson to know that your so-called “myth” of a myth about the non-existence of sole-inventorship is based on a sloppy invention of a fantasy history that never happened in the first place.

    It’s time to wake up Professor Lemley and realize your theory was nothing more than a liquid dream that is now unspinning itself down the drain like so many other fantasies that have been flushed down that same toilet beforehand; after being exposed to the awakening forces of daylight reality.

    Good day, Prof. Lemley. And good night.

  15. Blind Dogma September 17, 2011 10:53 am

    Bravo to all. A free round of the finest Kool-Aid to everyone. Stan, break out the best (and most potent) from the deepest cellars.

    (in a devilish undertone, not to be heard… “bring out the most potent Kool-Aid so that these Truth Bringers become drunk and disoriented – we simply cannot allow such truth to muck up our Dogma, bwa-haha, bwa-hahahaha, bw-hahahahahahaha“).

  16. Stan E. Delo September 17, 2011 3:39 pm

    BD-
    I would suggest the Looney Lime varietal, that has been steeping with copious amounts of wormwood chips in it for several months now. All we have to do is fortify it generously with some absinthe given the current state of assairs and we should all be happy campers in a trice or two or three….

    Nostrovia!
    Stan`

  17. Stan E. Delo September 19, 2011 2:20 pm

    Step-

    One strategy I heard of during the Wolf Greenfield presentation if I recall it correctly is to file overlapping PPA’s until things become a little clearer, and then pull the trigger on the Formal when you are reasonably sure that you have everything adequately covered, and one filed just before the FTF pumpkin date of Sept. 16, 2012. That will keep everyone guessing for up to 2 years, but if I were to do that, I personally would include the evolving claims while keeping an eye on the competition, and write the PPA’s just like a formal app of course. http://event.on24.com/view/presentation/flash/EventConsoleMVC.html?titlecolor=000000&eventid=356193&sessionid=1&username=&partnerref=&format=fhaudio&mobile=false&flashsupportedmobiledevice=false&helpcenter=false&key=E14F988DF919F63A8926AE9E55394CBB&text_language_id=en&playerwidth=980&playerheight=650&eventuserid=54173024&contenttype=A&mediametricsessionid=45004821&mediametricid=764350&usercd=54173024&mode=launch#

    Cheers,
    Stan~

  18. Maurice Ross September 26, 2011 11:57 am

    With respect to all of you, as someone who has practiced in this field (primarily as a litigator) for more than 30 years, Professor Lemley is clearly right. While there are undoubtedly many solo inventors, the vast majority of patents are funded and owned by large corporate entities, and the “inventions” are the product of corporate research teams. Further, it is quite common for corporate research teams to be simultaneously working on the same problem, and to come up with identical or substantially similar solutions within a matter of weeks or months of each other.

    The simple truth is that too many patents are issued for technological improvements that are trivial and/or obvious. The impact of this is extraordinarily negative for the economic well-being of most nations, because allowing major corporate entities to own and enforce patents covering trivial inventions result in slower development of truly valuable new technologies and, ultimately, markets dominated by a few corporate giants rather than competitive markets which reward true innovation. Professor Lemley is commended for taking on the establishment and recognizing the debilitating link between unreasonable extension of patent protection for trivial technological advances and economic stagnation.

  19. Vic Kley September 26, 2011 1:16 pm

    Maurice,

    I can’t share your definition of simultaneous as being “months or weeks”. Help us by explaining why anything other then hours or minutes is simultaneous and how you would truly know? Occasionally you will see people reinvent things that are years old, surely you would agree that this is not simultaneous.

    Have you ever seen a case in which an inventor was either missing or falsely made in a team of two or more? Have you ever seen the actual initial core idea captured on emerging within a team as part of a litigation?

    I know how to add people to the inventor team by encouraging people to participate and corralling off some aspect of the invention they could actually and truly contribute. Socratic care can an inventors team build. Such team building is very useful and the apparent proliferation of many inventors certainly can fool a lawyer, a law professor or anyone else who does no more then make a shallow count of inventors on patents.

    I have also been pressured (particularly by egomaniacal CEO’s) to put them on the inventors list when no contribution was made to the invention. I know of a certain instance when a CEO not only pretended to invent but pretended to be the principal inventor. It happens. Point being that if you look at the core invention in most case it is the product of one person not a team.

    In the latter sense sole invention is norm not the exception.

    Unless you have participated in a team invention or know of a true set of cases proving the opposite, I maintain that you need to accept our word, the word of those who invent.

    Lemley is not an inventor are you?

  20. Stan E. Delo September 26, 2011 3:41 pm

    Maurice-

    Corporate R&D is a much different approach than that used by solo or small entity inventors. Most times corporate research is governed by a *committee* of sorts, that by it’s nature is averse to taking many risks, since they already have marketable products selling well generally. As you allude to, corporations will tend to take small, incremental, and otherwise *safe* steps. Sole or small entity inventors have no such constraints, so they tend to go where corporations might not, as they have little to lose by doing so, and perhaps much to gain if they are actually successful. As a litigator, I suppose you see a lot of the corporate perspective, where they can afford to spend large amounts to patent everything they want to, where small entities might have to choose between dozens of inventions to find the ones that might have a chance at being profitable and worthy of filing a patent application for. Hence their prediliction to arrive at disruptive new technologies.

    Regards,
    Stan~

  21. JNG October 9, 2011 6:52 pm

    I posted this on Lemley’s “defense” page as well:

    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.

  22. Gene Quinn October 9, 2011 7:51 pm

    JNG-

    So far I haven’t read anything you’ve written that has in any way disproved Lemley’s premise, which is that only in rare instances does a sole inventor create a pioneering invention. That seems to be a universal truth that is just descriptive of reality. That doesn’t mean that great people don’t make important improvements, such as Edison and the light bulb for example. In fact, if you research Edison you will find that after early failure he vowed never to invent again where there was not consumer demand, hence his lifelong pursuit to make any number of innovations better, frequently far better.

    So I guess I’d just like you to try and articulate factual problems rather than guessing what his motives may or may not be.

    I’ll also point out that earlier you were suggesting that Lemley ought not to opine because he doesn’t know what he is talking about and now you seem to be saying that he is engaging in subterfuge at the behest of his clients. So I guess I wonder which it is? Either he doesn’t know what he is talking about or he does. He cannot at one moment be an unknowledgeable buffoon and at another moment be an evil genius capable of twisting facts and law to suit his clients.

    Finally, I’d love for you to point out where Lemley’s article promotes an anti-patent agenda. His conclusion is exactly opposite; namely that we need a patent system because that leads to more innovation. That alone strikes directly at the heart of the core contention in the anti-patent community.

    Having said all of this, I can understand if people are worried about what he writes from an obviousness perspective. If many people could or would have ultimately come up with the same invention the next question could become — then why give the first a patent? I think Lemley’s race justification addresses that.

    The way I read his article is as quite patent friendly. The fact that he recognizes that there is a complex set of incentives and business/science rationales to justify the patent system doesn’t worry me in the least even if the narrative is not the traditional one.

    -Gene

  23. JNG October 10, 2011 12:38 pm

    Gene:

    “Lemley’s premise, which is that only in rare instances does a sole inventor create a pioneering invention.”

    To which the appropriate answer could be: SO WHAT

    The patent code does not distinguish quality of invention by the NUMBER of inventors.

    The second answer would be: where has he proven that patents with more inventors are in fact more “pioneering”? This is a vague, amorphous term. Show us the data.

    But all of this is secondary because you are confusing (or turning a blind eye to) what Lemley is REALLY saying, which is expressed all too well in the article: 1) He believes there are too many patents (b/c that is an inconvenience to his clients) ; 2) his magical, beloved doctrine of “simultaneous invention” should get rid of the patents he doesn’t like as it tries to denigrate the title of inventor given by the government.

    The patent law works just fine the way it is, b/c the real principle is the rapid dissemination of information to society. The government gives the patent grant to that entity that is FIRST to provide this information to the public, for the public good. Its the same reason why “secret” prior art is usually ineffective: it is counter to the patent system, which rewards the disseminator. “Simultaneous invention” is a red herring promoted now by Lemley and his ilk to try and suggest that, b/c 10 people thought of an idea in approximately the same time, the sole “inventor” (the guy who took the time to write it up, pay an attorney, and slug it out with the PTO) is undeserving of that title, b/c in Lemley’s world, the other 9 might have disclosed the idea AT SOME point, or, more commonly, did disclose, but were too late. Since it is usually clever, nimble individuals who find these problems and solve them quickly, this is counter to Lemley’s stable of large, slow moving institutional clients interests, and why they are usually on the other end of an NPE lawsuit.

    This is apparent to any of us who have to practice in this field and deal with companies like this. It can’t be that challenging for you to perceive as well.

    ——————
    “I’ll also point out that earlier you were suggesting that Lemley ought not to opine because he doesn’t know what he is talking about and now you seem to be saying that he is engaging in subterfuge at the behest of his clients. So I guess I wonder which it is?”
    —————–

    What makes you think that incompetence and mischief are incompatible?

    The issue here is that Lemley tries to masquerade himself – with his Stanford teaching position – as some kind of impartial academic scholar looking for answers, when, in fact, his agenda on behalf of his client is well-known. His “research” results are as predictable as the tobacco company sponsored “research” years ago that showed smoking was good for everyone.

    ————-
    “Finally, I’d love for you to point out where Lemley’s article promotes an anti-patent agenda. His conclusion is exactly opposite; namely that we need a patent system because that leads to more innovation. That alone strikes directly at the heart of the core contention in the anti-patent community.”
    ————

    See above. Lemley invents a definition of what should be patentable based on his own significant biases and interests which he disguises under the veil of academic research. If you extrapolated from his “conclusions” it would be that 90% of all patents should not be granted b/c, given enough $$ and motivation, Lemley and his legal minions will find some other guy out there on the planet who was thinking about the same idea at the same time.

    VOILA, that must mean no patent should have been granted your honor! Game over! We win!

    Its an inconvenient truth for him that the law does not work that way. Like other lawyers he may wish it were otherwise, but the bulk of them don’t try to dress it up as impartial academic research. His work is a transparent attempt to pander to the current anti-patent crowd with sleight of hand that masks his real agenda and corporate backing.

  24. Gene Quinn October 10, 2011 1:43 pm

    JNG-

    Now we are at the heart of the matter. I suppose it is fair to say that I am turning a blind eye to Lemley’s suggestion that fewer patents should be issued. I think that is incorrect. The suggestion that we should issue fewer patents seems to be undercut by his conclusion, which I do like. I like the fact that Lemley says that the patent system is justified if for no other reason than to encourage a race. That should mean that we want to be issuing more patents, not fewer. If there is a complex brew of rationales suggesting that we get more innovation out of a patent system when there is a race between inventing fractions then we should have more patents and set up more races.

    -Gene