What Gettysburg teaches us about KSR v. Teleflex
The blog civilwarcavalry noted my discussion of Carhart's book about Gettysburg, which discussion has reached such intellectual property issues as novelty, obviousness, and plagiarism.
Of the last point, IPBiz needs to clarify one point made at civilwarcavalry: The gist, therefore, is that Mr. Ebert appears to believe that Tom Carhart is a plagiarist who has claimed a novel theory as his own when it’s something that has been around for decades and is nothing new at all. As pointed out on IPBiz, there is no federal law concerning plagiarism (which is an activity distinct from copyright infringement.) Further, unlike the case with the Andersonville/University of Tennessee Press matter, no one has suggested that Carhart copied text from an earlier book (such as Walker's), so that no one has a basis for the conventional allegation of plagiarism. Thus, IPBiz (and LBE) do not believe, with the evidence presented, that Dr. Carhart is a plagiarist. Additionally, in the world of copyright law, there is the defense of "independent creation" to a claim of infringement.
The Carhart matter brings up one ambiguity in the concept of plagiarism, which had previously been illustrated in the Minneapolis Star-Tribune matter and more recently in the "Cheney as Iranian Mole" matter. Does unintentional insufficient attribution amount to plagiarism? Opinions clearly differ. Does plagiarism require intent? Recall in the Laurence Tribe matter (unlike with Carhart), there was a bibliography which did refer to the source for the material copied by Tribe, even though there was no explicit footnote and no quotation marks in the Tribe work. [In passing, another ambiguity in the concept of plagiarism is whether one can plagiarize oneself, which came up in the SIU problem and in the Cha/Kim/Fertility & Sterility matter. The former suggested that unattributed copying of one's own prior work was a bad thing.]
IPBiz does believe that the Carhart matter presents important teachings in the patent law concepts of novelty and obviousness.
Of novelty, the majority of initial reviews of Carhart's book accepted the premise that Carhart's "master plan" theory was novel. LBE contacted several of these reviewers and determined that they had no idea of what had been written before, and merely repeated what they had found in the book, including certain remarks by a professor from Princeton University. There were a few experts, such as D. Scott Hartwig, who explicitly stated that this theory had been presented before, but their viewpoint was in the minority and created no backlash against the book (unlike what happened in the Andersonville matter, which involved explicit plagiarism.)
With the release of the Supreme Court opinion in KSR v. Teleflex, the obviousness angle of the Carhart matter is even more intriguing, and timely. Thus, in 1878, William Brooke-Rawle wrote: “It was obvious that he [Stuart] intended to accomplish this by way of the Baltimore Pike and the roads hereafter described, simultaneously with Pickett’s attack in front.” Rawle, who was a participant in the battle and thus likely "one of ordinary skill in the art," didn't marshall any facts for this "theory" beyond what he had observed, so that one has basically what lawyers term "res ipsa loquitor." This evokes, in spades, the Supreme Court's repeated reference to "common sense" in KSR v. Teleflex. You can just look at the thing and see what the obvious "next step" would be. Rawle did not mention the cannon shots, which would qualify as "teaching away" from a SURPRISE attack by Stuart. Carhart did mention the cannon shots, but the idea of "shots as a signal" doesn't pass the straight-face test. If he signalled Lee by the shots, he also signalled the Union forces. We know for a fact the latter happened. What may have been "obvious" to Rawle may indeed follow from a "common sense" look at what appeared to be happening on July 3, but it also may be wrong. Wrong as to Rawle, to Walker, and to Carhart. Apart from the merits of the proposal, one can't help but note the time sequence: in 1878 the theory was "obvious" but more than 100 years later in 2005 the theory was passed off as "novel."
The Supreme Court in KSR v. Teleflex was opening the "public domain" to include incremental innovations. If "common sense" tells one of ordinary skill to go from X to Y, then Y is in the public domain, not subject to patent. There is a lot of text in KSR, which echoes complaints from the IT industry, that allowing patenting of things like Y harms innovation. The Carhart matter illustrates that the consuming public does not pay much attention to the X's and Y's. The issue of novelty really did not come up here. Most of the consuming public does not even care that, as civilwarcavalry noted, Carhart simply made stuff up. The issue of reality didn't matter.
Returning to the patent angle, the Patent Office [USPTO] does not have the resources to evaluate the validity of inventions. They do attempt to see whether something has been done before. Studying the Carhart matter, one observes that the USPTO would not be evaluating "whether Carhart was right" as much as they would be checking "whether what Carhart did had been done before." In the patent business, the consuming public cares little about whether something has been done before, but they do care about whether something works and is useful (for example, the BlackBerry).
***
Highly relevant to Judge Posner's comment about recognizing plagiarism, please note that if one believes the content of the post above (and/or text at civilwarcavalry), then the list of reviewers identified at roberteleecwrt simply did not recognize prior work to that of Carhart. This example illustrates why Posner's point on plagiarism is problematic. From the list:
John Keegan:
“Tom Carhart sheds new light on the grandest battle of the Civil War, a remarkable achievement by any military historian”
Rick Atkinson:
"A lively and innovative interpretation of the greatest battle ever waged on American soil."
Gus Lee:
“With Lost Triumph, West Pointer Tom Carhart swats a stupendous, historical, out-of-the-park four-bagger. History is seldom page-turning; here, the true events of Gettysburg compose a thriller. Dr. Carhart makes the case for revolutionizing our understanding of the decisive engagement of the Civil War; elevates the renown of Robert E. Lee; improbably reanimates the reputation of George Armstrong Custer; and shows us how history should be analyzed, challenged, proven and taught.
On the way, he condenses the complexities of the military art into entertainingly digestible bites.”
Bruce Lee:
“Lost Triumph is an exciting, wonderful book rivaling anything yet written about the battle of Gettysburg. It is mandatory reading for Civil War buffs. I have always wondered why General Lee ordered that fateful attack when and where he did. Now I know. Thanks to Tom Carhart's exemplary new research and his knowledge of military matters, Lost Triumph presents the first comprehensive view of Lee's previously unknown plan to win the battle.”
Jay Winik:
“Few generals were as brilliant as Robert E. Lee and few battles as titanic -- and puzzling -- as Gettysburg. Why did Lee fail? In Lost Triumph, Tom Carhart offers a bold and provocative new assessment. Agree or disagree, it is sure to stimulate debate among even the most seasoned Civil War buffs.”
Dan Cragg:
“A mark of true genius is a writer’s ability to show us the familiar in a new light. Tom Carhart does just that in Lost Triumph, an original and refreshing look at Lee's strategic thinking at Gettysburg that is sure to set the standard view of that battle on its head. But the genuinely breathtaking aspect of this book is the way Carhart takes his brush to the tarnished image of George Armstrong Custer. Lost Triumph is truly a ground-breaking contribution to American military history.”
Gil Dorland:
"After 142 years of common belief that Robert E. Lee’s battlefield brilliance had somehow failed him in the decisive battle of Gettysburg, Tom Carhart, a West Pointer and noted historian who knows firsthand the blood and guts and chaos of war as a combat soldier in Viet Nam, has remarkably broken the code and now rewrites history so that we might finally understand what really happened there. Stunning. Brilliant."
Michael D. Mahler:
“Tom Carhart brings a soldier’s perspective to his analysis of Lee’s tactical thinking at Gettysburg. Whether or not you accept Carhart’s conclusions about JEB Stuart’s role in Pickett’s disastrous charge, his command of the principles of mounted combat are superb, and his descriptions of the actions of Stuart’s Confederate cavalry and Custer’s Union cavalry are filled with new insights. Carhart convincingly shows that Custer was at the right place at the right time at Gettysburg, even if that were not the case 13 years later on that grassy hillside overlooking the Little Bighorn in Montana.”
Ronald H. Griffith:
"Tom Carhart offers a fresh and compelling explanation for Lee’s decision in Lost Triumph...These unique insights come through in Lost Triumph ... "
***
As a separate matter, this confusion over the novelty/nonobviousness of Carhart's theory illustrates why the "common sense" approach of KSR v. Teleflex is apt to introduce a reign of subjective conjecture into the realm of obviousness determinations under 35 USC 103.
Of the last point, IPBiz needs to clarify one point made at civilwarcavalry: The gist, therefore, is that Mr. Ebert appears to believe that Tom Carhart is a plagiarist who has claimed a novel theory as his own when it’s something that has been around for decades and is nothing new at all. As pointed out on IPBiz, there is no federal law concerning plagiarism (which is an activity distinct from copyright infringement.) Further, unlike the case with the Andersonville/University of Tennessee Press matter, no one has suggested that Carhart copied text from an earlier book (such as Walker's), so that no one has a basis for the conventional allegation of plagiarism. Thus, IPBiz (and LBE) do not believe, with the evidence presented, that Dr. Carhart is a plagiarist. Additionally, in the world of copyright law, there is the defense of "independent creation" to a claim of infringement.
The Carhart matter brings up one ambiguity in the concept of plagiarism, which had previously been illustrated in the Minneapolis Star-Tribune matter and more recently in the "Cheney as Iranian Mole" matter. Does unintentional insufficient attribution amount to plagiarism? Opinions clearly differ. Does plagiarism require intent? Recall in the Laurence Tribe matter (unlike with Carhart), there was a bibliography which did refer to the source for the material copied by Tribe, even though there was no explicit footnote and no quotation marks in the Tribe work. [In passing, another ambiguity in the concept of plagiarism is whether one can plagiarize oneself, which came up in the SIU problem and in the Cha/Kim/Fertility & Sterility matter. The former suggested that unattributed copying of one's own prior work was a bad thing.]
IPBiz does believe that the Carhart matter presents important teachings in the patent law concepts of novelty and obviousness.
Of novelty, the majority of initial reviews of Carhart's book accepted the premise that Carhart's "master plan" theory was novel. LBE contacted several of these reviewers and determined that they had no idea of what had been written before, and merely repeated what they had found in the book, including certain remarks by a professor from Princeton University. There were a few experts, such as D. Scott Hartwig, who explicitly stated that this theory had been presented before, but their viewpoint was in the minority and created no backlash against the book (unlike what happened in the Andersonville matter, which involved explicit plagiarism.)
With the release of the Supreme Court opinion in KSR v. Teleflex, the obviousness angle of the Carhart matter is even more intriguing, and timely. Thus, in 1878, William Brooke-Rawle wrote: “It was obvious that he [Stuart] intended to accomplish this by way of the Baltimore Pike and the roads hereafter described, simultaneously with Pickett’s attack in front.” Rawle, who was a participant in the battle and thus likely "one of ordinary skill in the art," didn't marshall any facts for this "theory" beyond what he had observed, so that one has basically what lawyers term "res ipsa loquitor." This evokes, in spades, the Supreme Court's repeated reference to "common sense" in KSR v. Teleflex. You can just look at the thing and see what the obvious "next step" would be. Rawle did not mention the cannon shots, which would qualify as "teaching away" from a SURPRISE attack by Stuart. Carhart did mention the cannon shots, but the idea of "shots as a signal" doesn't pass the straight-face test. If he signalled Lee by the shots, he also signalled the Union forces. We know for a fact the latter happened. What may have been "obvious" to Rawle may indeed follow from a "common sense" look at what appeared to be happening on July 3, but it also may be wrong. Wrong as to Rawle, to Walker, and to Carhart. Apart from the merits of the proposal, one can't help but note the time sequence: in 1878 the theory was "obvious" but more than 100 years later in 2005 the theory was passed off as "novel."
The Supreme Court in KSR v. Teleflex was opening the "public domain" to include incremental innovations. If "common sense" tells one of ordinary skill to go from X to Y, then Y is in the public domain, not subject to patent. There is a lot of text in KSR, which echoes complaints from the IT industry, that allowing patenting of things like Y harms innovation. The Carhart matter illustrates that the consuming public does not pay much attention to the X's and Y's. The issue of novelty really did not come up here. Most of the consuming public does not even care that, as civilwarcavalry noted, Carhart simply made stuff up. The issue of reality didn't matter.
Returning to the patent angle, the Patent Office [USPTO] does not have the resources to evaluate the validity of inventions. They do attempt to see whether something has been done before. Studying the Carhart matter, one observes that the USPTO would not be evaluating "whether Carhart was right" as much as they would be checking "whether what Carhart did had been done before." In the patent business, the consuming public cares little about whether something has been done before, but they do care about whether something works and is useful (for example, the BlackBerry).
***
Highly relevant to Judge Posner's comment about recognizing plagiarism, please note that if one believes the content of the post above (and/or text at civilwarcavalry), then the list of reviewers identified at roberteleecwrt simply did not recognize prior work to that of Carhart. This example illustrates why Posner's point on plagiarism is problematic. From the list:
John Keegan:
“Tom Carhart sheds new light on the grandest battle of the Civil War, a remarkable achievement by any military historian”
Rick Atkinson:
"A lively and innovative interpretation of the greatest battle ever waged on American soil."
Gus Lee:
“With Lost Triumph, West Pointer Tom Carhart swats a stupendous, historical, out-of-the-park four-bagger. History is seldom page-turning; here, the true events of Gettysburg compose a thriller. Dr. Carhart makes the case for revolutionizing our understanding of the decisive engagement of the Civil War; elevates the renown of Robert E. Lee; improbably reanimates the reputation of George Armstrong Custer; and shows us how history should be analyzed, challenged, proven and taught.
On the way, he condenses the complexities of the military art into entertainingly digestible bites.”
Bruce Lee:
“Lost Triumph is an exciting, wonderful book rivaling anything yet written about the battle of Gettysburg. It is mandatory reading for Civil War buffs. I have always wondered why General Lee ordered that fateful attack when and where he did. Now I know. Thanks to Tom Carhart's exemplary new research and his knowledge of military matters, Lost Triumph presents the first comprehensive view of Lee's previously unknown plan to win the battle.”
Jay Winik:
“Few generals were as brilliant as Robert E. Lee and few battles as titanic -- and puzzling -- as Gettysburg. Why did Lee fail? In Lost Triumph, Tom Carhart offers a bold and provocative new assessment. Agree or disagree, it is sure to stimulate debate among even the most seasoned Civil War buffs.”
Dan Cragg:
“A mark of true genius is a writer’s ability to show us the familiar in a new light. Tom Carhart does just that in Lost Triumph, an original and refreshing look at Lee's strategic thinking at Gettysburg that is sure to set the standard view of that battle on its head. But the genuinely breathtaking aspect of this book is the way Carhart takes his brush to the tarnished image of George Armstrong Custer. Lost Triumph is truly a ground-breaking contribution to American military history.”
Gil Dorland:
"After 142 years of common belief that Robert E. Lee’s battlefield brilliance had somehow failed him in the decisive battle of Gettysburg, Tom Carhart, a West Pointer and noted historian who knows firsthand the blood and guts and chaos of war as a combat soldier in Viet Nam, has remarkably broken the code and now rewrites history so that we might finally understand what really happened there. Stunning. Brilliant."
Michael D. Mahler:
“Tom Carhart brings a soldier’s perspective to his analysis of Lee’s tactical thinking at Gettysburg. Whether or not you accept Carhart’s conclusions about JEB Stuart’s role in Pickett’s disastrous charge, his command of the principles of mounted combat are superb, and his descriptions of the actions of Stuart’s Confederate cavalry and Custer’s Union cavalry are filled with new insights. Carhart convincingly shows that Custer was at the right place at the right time at Gettysburg, even if that were not the case 13 years later on that grassy hillside overlooking the Little Bighorn in Montana.”
Ronald H. Griffith:
"Tom Carhart offers a fresh and compelling explanation for Lee’s decision in Lost Triumph...These unique insights come through in Lost Triumph ... "
***
As a separate matter, this confusion over the novelty/nonobviousness of Carhart's theory illustrates why the "common sense" approach of KSR v. Teleflex is apt to introduce a reign of subjective conjecture into the realm of obviousness determinations under 35 USC 103.
posted by Lawrence B. Ebert at 4:08 AM
1 Comments:
You quote the historian Jay Winik re the plariarism issue, but Winik has his own - and to date un-acknowledged problems in this regard. Jay Winik, in his 2001 book April 1865, (Harper Collins) makes important and unacknowledged use of critical and moving passages, especially from the preamble of The Last Lion, (Little Brown & Company, 1988) by the distinguished historian William Manchester.
Here is how Manchester begins and concludes his preamble:
"The French had collapsed. The Dutch had been overwhelmed. The Belgians had surrendered. The British army, trapped, fought free and fell back toward the Channel ports, converging on a fishing town whose name was then spelled Dunkerque.
Behind them lay the sea.
It was England's greatest crisis since the Norman conquest, vaster than those precipitated by Phillip II's Spanish Armada, Louis XIV's triumphant armies, or Napoleon's invasion barges massed at Boulogne. This time Britain stood alone….
Now in this new exigency, confronted by the mightiest conqueror Europe had ever known, England looked for another Alfred, a figure cast in a mold which, by the time of the Dunkirk deliverance, seemed to have been forever lost…. Such a man, if he existed, would be England's last chance.
In London there was such a man."
And here is how Winik starts and builds his preamble:
" Atlanta had been overwhelmed. Columbia had been surrendered - and burned. Charlston had been abandoned. … The Army of Northern Virginia… had wriggled free of the enemies clutches and fallen back, converging on a defensive position around Petersburg and Richmond.
Across the slim divide of the battered landscape lay Grant's swelling Army of the Potomac.
It was the Confederacy's direst crisis since the start of the war, vaster than the fall of Vicksburg, more terrible than the failure at Gettysburg, and more traumatic than the toll of Sharpsburg. This time, the South stood irrevocably alone…
Now, confronted by the prospect of losing all, they looked to their leadership, for another George Washington, a figure who could rescue the South. In these desperate times, after al the suffering and death, after the multitude of exhaustion and despair, such a man - or such men - was the Confederacy's final chance.
In the trenches of Petersburg, there was such a man…"
It is difficult to avoid the conclusion that the tempo, structure and specific language of Winik's critical preamble are largely drawn from Manchester’s work.
Later in his work Winik again mirrors Manchester’s same preamble.
Manchester had written:
"(A) tribune for honor, loyalty, duty, and the supreme virtue of action: one who would never compromise with iniquity, who could create a sublime mood and thus give men heroic visions of what they were and might become…. a great tragedian who understood the appeal of martyrdom and could tell his followers the worst…"
Here is Winik:
" Lee had a sublimely romantic quality about him: he was a figure who gave men heroic visions of what they were and what they could become, was a testament to sweet humor and loyalty and duty and the ultimate virtue of action, and was true tragedian who understood his own appeal to his followers." (p. 174)
Ironicially, this blog quotes Winik re the plariarism issue, but Winik clearly has his own - to date unacknowldeged problems in this regard.
Best,
GHK
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