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.