Lemley recounts the true stories of these and other inventors in Part I, which is a much more entertaining read than the typical law review article. Lemley is not the first legal scholar to discuss the true stories of these "lone inventors"—for example, Lea Shaver examined Edison's contribution to the light bulb, and Merges and Nelson looked at the light bulb, automobiles, airplanes, and radio in their classic 1990 article—but I don't know of anyone who has gone through all these stories (including the "exceptions" like penicillin and the photocopier) so systematically. And Lemley goes beyond anecdotal evidence by discussing a number of studies indicating that incremental progress and simultaneous invention is the norm, not the exception.
In Part II, Lemley examines the problems that these inventor stories cause for the dominant theories of patent law:
- Incentive theory (that patents are needed to incentivize innovation): "The overwhelming prevalence of both independent invention and incremental contribution calls this basic incentive story into serious question." (Or does this just mean that patent incentives are too strong?)
- Commercialization and prospect theories (that patents are needed for development ex post): For "structural reasons monopolists are actually poor managers of an invention" and in the exceptional "singleton invention" cases of penicillin and the photocopier, there was "substantial delay between invention and commercialization." The inventor stories also show that inventors often hinder the development of new uses.
- Disclosure theory (that patents are needed to disclose technical information): This theory cannot justify the patent system because "inventors don't learn their science from patents." Based on my survey of nanotechnology researchers, I have argued that scientists actually learn more from patents than most legal scholars think, but that disclosure still isn't a justification for the patent system. So I agree with this section's overall conclusion, but it is not clear that the inventor stories from Part I can teach us anything about disclosure.
Part III contains the most novel aspect of Lemley's argument: not only might races have some benefits (which has been suggested by others like John Duffy, Michael Abramowicz, and Suzanne Scotchmer), but racing might be the dominant normative justification for the patent system. "In some . . . of the examples . . . in Part I [like the telephone and cotton gin], the inventors were acutely aware of the possibility of patent rights and of the risk that others might obtain the core patents," and even where there's no evidence of a race, "[i]t is possible that these inventors knew they were racing against identifiable [or unknown] others working on the same thing." And these races are not necessarily wasteful: they can result in faster invention, different solutions, or higher quality ideas under pressure. Under a racing theory, "the 'incentive' offered by the patent system is not the promise of a payoff, but the threat of being taxed or even excluded from the market entirely if they lose the race"—a stick, not a carrot.
As Lemley acknowledges, this paper is far from a defense of the patent system on racing theory grounds: "patent races may have specific social costs," and we need to determine "whether the innovation benefits of granting patent rights exceed their costs." (For a concise listing of the costs "in terms of static inefficiency and in lost opportunities for future improvement," see p. 36 of the current draft.) Rather than concluding that racing theory justifies patents, this paper is a call for future research, and Part III concludes with a useful bulleted list of research directions from which to investigate racing. I would love to see this conclusion loop back to the inventor stories from Part I: with all the discussion of patents hindering future innovation in those cases, is it plausible that the gains from patent races outweighed the efficiency losses for those inventions? Of course, this can't be answered definitively (and even guessing at the answer is difficult), but teeing up this question might be helpful for thinking about this theory.
See if you can find the word "bamboo" in Edison's fundamental patent.ReplyDelete
And of -- the Wright brothers' airplane was soon surpassed by others --, the Wright Brothers' patent was on three-dimensional control, not on an airplane, and the application was filed months before Dec. 17, 1903.
More Lemley-isms, like Gary Boone inventing the IC.
I suggest picking up a copy of "What Technology Wants" by Kevin Kelly. In the book, he describes many examples of simultaneous inventorship, and also describes a theory of why it happens. To Kelly, the discovery process of technology is just an extension of evolutionary forces which continue to drive the development of the human species.ReplyDelete
If he is to believed, the patent system simply serves to optimize and encourage this process, which would otherwise still occur naturally.
** Of the text --Edison merely "found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Mann, --ReplyDelete
Although the Supreme Court did not address the issue, there were allegations by Edison at trial that Sawyer/Man had amended their application to conform to Edison's work: "no such invention
was set forth in the original application, but was introduced for the first time more than four years after it was filed, and after the same material had been used by Edison, and claimed by
him in an application for a patent." The trial court agreed, saying "after Edison's inventions on this subject had been published to the world, there was an entire change of base on the part of Sawyer and Man, and that the application was amended to give it an entirely different direction and purpose from what it had in its original form ...."
**Of simultaneous inventorship, Carlson's xerography is anything but a simultaneous invention. Carlson was in fact told by the likes of Kodak and IBM that the invention would not work and had no value. The invention by the Wrights of three-dimensional control was only after the repeated failure of others as to flight. The competitors didn't understand the problem, much less the solution. Of the patent system, the Wrights were clearly incentivized by the availability of a patent system. Langley got government money, but his plane landed in the Potomac. A resurrected version, with significant modifications, was used by Curtiss in an attempt to defeat the patent of the Wrights.
**Of lack of understanding by inventors, Lemley repeats the discredited "transistor as hearing aid" urban legend. But see 8 JMRIPL 80 (2008).
Thanking you for 'stepping forward' into the fray and rebutting one false premise after another.
The sad thing about the internet is that it sports one site after the next, all making assertions that are clearly false and yet no one can police them all.
At least here, and for those who stumble across this one, you've set part of the record straight.
@Lawrence: Lemley isn't making any claims about the scope of the patents these inventors received, so whether "bamboo" appears in Edison's patent is irrelevant. Rather, his claim is a historical one: that while society thinks of Edison as stepping into vacuum and independently creating this pioneering invention, he was really building on others' ideas much more than the canonical myth suggests. I don't think Lemley did original research on this - he relied on peer-reviewed articles like this one - and it is possible that the scholars he relies on got the history wrong. But I don't think your post on ezinearticles about whether Edison was a patent troll really addresses this historical claim.ReplyDelete
Thanks for citing your article about Lemley's claim that "[t]he transistor was originally conceived primarily as useful in hearing aids" (to make it easier for others reading these comments, here is a link to your article on Hein, and the relevant page is 86). I haven't carefully checked your sources (just as I don't carefully check the sources of articles I blog about, since this is a blog, not a law review), but it looks like you are right that this is as much a myth as the other myths Lemley debunks!
As for the photocopier, I noted in my post that Lemley listed it among the exceptions to the rule that most invention is simultaneous. So he would surely agree with your claim that it "is anything but a simultaneous invention."
@Sean: Thanks for the suggestion. I'm not familiar with the book, but here is a relevant quote from it about the prevalence of simultaneous invention on Google Books. (Readers can find more by searching the book for "simultaneous.")
Harold Evans, author of They Made America, provides an interesting explanation as to why historians give Edison credit for inventing the light bulb and similarly why they give the Wright brothers credit for inventing the airplane. He explains that historians tend to give credit to the inventor who makes the key advance that makes an invention commercially feasible. While this is very inexact by the standards of patent attorneys and has allowed no end of nonsense by academic hacks like Lemley, if understood in this light then it makes sense why historians have given Edison credit for inventing the light bulb. What he really invented was the first high resistance, long lasting, incandescent light bulb. This made the light bulb a commercially feasible product.ReplyDelete
Lemley’s argument that great inventions are created by multiple people simultaneously has been examined by numerous scholars and found to be incorrect. For instance, see Jacob Schmookler and his ground breaking book, Invention and Economic Growth, which examined this issue. People like Lemley attempt to smear together multiple inventions as being the same invention. For instance, they see Swan’s light bulb and Edison’s light bulb as simultaneous inventions of the light bulb. Lemley may have made this mistake because he does not have the technical background necessary to understand the issues surrounding the invention of the light bulb.
As for the value of the “race” to the patent office of a first-to-file system, Canada’s experience shows that this system inhibits invention by the type of inventors who are most likely to create revolutionary or disruptive technologies http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1394833. Mr. Lemley failed to even undertake the most basic research into his hypothesis. He is good at propaganda, but this paper is not scholarship.
BTW: Gary Boone never claimed to invent the IC or the microprocessor. What he claimed was the first microcontroller – for more information see http://hallingblog.com/2009/09/09/what-the-inventor-of-microcontroller-has-to-say-on-innovation-and-patents/
Rather than repeating, I'll merely link to my post at Dale's site on same topic:
Basically, Lemley's paper would have you believe in an inverted demographic pyramid where the base population is populated by billions of "inventors" all simultaneously inventing away while only the rare few don't invent.
The real world is the flip of that fantastical imagery.
Thanks for the comments.ReplyDelete
Of the light bulb, your post began:
Edison invented the light bulb, right? No, explains Mark Lemley (Stanford Law) in his newly posted article, The Myth of the Sole Inventor. Edison merely "found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Mann, who in turn built on lighting work done by others."
But Edison's invention related to incandescent heating of a filament. Sawyer and Mann's patent as-filed was not about filaments. As a historical matter, bamboo is not mentioned as a filament material in the fundamental Edison patent. Thus, from a historical perspective, the initial statements in your post are incorrect. Was Edison really building on Sawyer and Mann's invention as it was initially disclosed? In turn, however, note that there were no "Edison" light bulbs at the Chicago Worlds Fair in 1893.
Of -- I haven't carefully checked your sources (just as I don't carefully check the sources of articles I blog about --, the source you might check is Lemley's reference to the Stanford Observer (a now defunct periodical for Stanford alums, like Lemley and myself), which in turn cited a non-existent 1947 article in the New York Times as a basis for the hearing aid assertion. The non-existence of the 1947 article was pointed out in 2008, suggesting its use in 2011 might be sub-blogworthy.
Of the integrated circuit [IC], Gary Boone never claimed to be the inventor of the IC, but Mark Lemley did make Boone the inventor within the pages of the Stanford Law Review.
Mark A. Lemley, Patenting Nanotechnology, 58 Stan. L. Rev. 601, 611-612 (2005):
The integrated circuit was itself an improvement in the field of computing, a way of building transistors (an invention discussed above) [p. 612] directly into a computer chip by using charged silicon, a semiconductor. The invention opened up not just computing but also calculators, cell phones, and a host of other portable electronic devices. But because two different inventors working independently developed the integrated circuit at about the same time (1971), the patents were put into interference. Gary Boone was ultimately declared the winner, but not until 1999, twenty-eight years after the first patent application was filed.
To follow up to your text -- Lemley isn't making any claims about the scope of the patents these inventors received, so whether "bamboo" appears in Edison's patent is irrelevant. Rather, his claim is a historical one: that while society thinks of Edison as stepping into vacuum and independently creating this pioneering invention, he was really building on others' ideas much more than the canonical myth suggests. -- my responses WERE as to points of history, not as to claim scope of the patents:ReplyDelete
#1. Edison's fundamental patent doesn't mention the word bamboo ANYWHERE, because at the time of filing, he had not discovered the useful bamboo. The fact that bamboo isn't mentioned in the patent is HIGHLY relevant to understanding the history of Edison's light bulb.
#2. The Wright's patent application (leading to a patent in 1906) was filed months before the flight of December 17, 1903 and had nothing to do with a powered airplane. In fact, the Wrights wasted time at the patent office trying to explicitly include such language later. This is a point of history, not of claim scope.
#3. As to the "transistor as hearing aid" urban legend, by the time Lemley had circulated the story from the Stanford Observer, Shockley and Bardeen (both of whom I have talked to in the past) were dead and unavailable for comment. I directly communicated with Bardeen's first grad student at the University of Illinois, who thoroughly repudiated Lemley's legend, with the remarks directly published in 8 JMRIPL 80 for all to review. As to history, it is important to note that the Stanford Observer piece relies on a non-existent 1947 article in the New York Times. Of your text -- he relied on peer-reviewed articles --, please note that the Stanford Observer was a newsletter for Stanford alums, and was not "peer reviewed," and more importantly as to the transistor, has no basis in fact.
**Of --most invention is simultaneous --, the Wright Brothers made an invention in a field populated by many competitors, including Langley, but viewed the problem in a way not visualized by any of the competitors. Curtiss derivatized the work and in later years went into the real estate business. How is the Wrights' work evidence for simultaneous invention? There is no dispute that Carlson's work evolved independently, and, as to the transistor, Lilienfeld's work preceded the Bell Labs work by more than 15 years, again hardly evidence for "simultaneous" invention.
What happens after a patent is granted? Perhaps the grantee then slows down the pace of innovation because they have a monopolyReplyDelete
If society's goal is to encourage the fastest sustainable continuous innovation, the patent system might not actually achieve this. It might instead encourage 1-3 years of racing followed by 10-20 years of relative lethargy during the patent term.
Obviously, it depends on the market--some grantees will race continually to minimize the threat of being "designed around" or "gated" from further innovations. But what do statistics show to be the actual result of patents in terms of the speed of innovation?
@Lawrence B. EbertReplyDelete
You are so knowledgeable. It it is unfortunate that your knowledge is used to refine and clarify the details of the facts supporting Lemley's arguments rather than to address the arguments themselves.
@ Michael F. MartinReplyDelete
I'm not sure what you mean Michael. Lemley's conclusion began:
The history of significant innovation in this country is, contrary to popular myth, a history of incremental improvements generally made by a number of different inventors at roughly the same time. Our patent system, by contrast, is designed for a world in which one inventor of extraordinary skill does something no one else could have done.
We all seem to agree that Chester Carlson's xerography was not an incremental improvement. Nor was the transistor. Nor was the Wrights' wing warping. Edison's work didn't follow from Sawyer and Mann. Seems like Lemley's first "conclusion" is factually wrong. Our patent system does require an inventor be of extraordinary skill. It does require inventions that are novel and not obvious.
The "not" got dropped. The US patent system does not require an inventor be of ordinary skill.ReplyDelete
or extraordinary skill.ReplyDelete