Lemley on patenting nanotechnology
He finds the area significant:
First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. [Query: what about transistors, among other things?]
A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the
patentees are largely actual or at least potential participants in the
market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well.
Finally, a large number of the basic nanotechnology patents have been
issued to universities, which have become far more active in patenting in the last twenty-five years. [i.e., post Bayh-Dole]
One does find mention of the transistor:
AT&T did obtain basic patents on the transistor, an important component of later computers, n27 but licensed them broadly at low royalty rates under an antitrust consent decree that also precluded it from entering the market for transistors itself. n28 [Query: Wasn't AT&T/Bell Labs having meetings disclosing transistor technology to third parties and licensing said technology BEFORE any consent decree?]
Lemley's footnote 27: Circuit Element Utilizing Semiconductive Material, U.S. Patent No. 2,569,347 (filed June 26, 1948). Lemley's footnote 28: United States v. AT&T, 552 F. Supp. 131, 136 (D.D.C. 1982). For this argument, see Robert P. Merges & Richard R. Nelson, On the Complex Economics of Patent Scope, 90 Colum. L. Rev. 839, 896 (1990); Sabety, 1 Nanotechnology L. & Bus. 262, at 269.
Of the integrated circuit [IC]:
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. n49 [Gary Boone the inventor of the IC????]
Lemley's footnote 49: Gary W. Boone first filed a patent application disclosing an integrated circuit on July 19, 1971. See U.S. Patent No. H1970 (filed July 19, 1971). Interference No. 102,598 was declared on March 27, 1991, and the Board of Patent Appeals and Interferences (BPAI) finally reconsidered its earlier decision of priority on May 10, 1996. See Hyatt v. Boone, 146 F.3d 1348, 1351 n.1 (Fed. Cir. 1998). An opinion in the last appeal of the BPAI's decision awarding priority to Boone was issued on August 26, 1998. See id.
Those inhabiting a universe different from Lemley's might recall two fellows by the names of Kilby and Noyce. They had a patent interference that was decided by the CCPA years ago. One of the fellows even won a Nobel Prize.
Lemley's conclusion: The sum of all these stories is rather remarkable: for one reason or another, the basic building blocks of what might be called the enabling technologies of the twentieth century - including the computer, software, the Internet, and biotechnology - all ended up in the public domain. Whether through a policy decision, a personal belief, shortsightedness, government regulation, or invalidation of the patent, no one ended up owning the core building blocks of these technologies during their formative years.
[Gee, TI and Fairchild made a bundle licensing the IC patent. And Bell Labs did get royalties, hardly the equivalent of "public domain."]
Lemley's conclusion: Nanotechnology patents bear watching. They have characteristics that may well make them fundamentally different than patents in any other industry in the last eighty years.
How could Stanford's Lemley have made such an awful error about the invention of the integrated circuit?
Of "historians" at Stanford and Berkeley
In a footnote, Wineburg notes that even professional historians do poorly outside their research specialization. In a 1991 study, Wineburg found that when historians trained at Stanford, Berkeley and Harvard answered questions from a leading high school textbook, they scored a mere 35 percent, in some cases lower than a comparison group of high school students taking Advanced Placement U.S. History. "Technology may have changed since 1917, but the capacity of the human mind to retain information has not," he writes.