Patent law: a subject of marginal interest?
In reviewing the film "Flash of Genius" about inventor Robert Kearns and the intermittent windshield wiper, Nathan Lerner concludes: "Flash of Genius" ends up being a lackluster film about a subject of marginal interest.
One thing that bothered him was the title of the movie:
"Flash of Genius" takes its title from a phrase written by Justice William O. Douglas in his majority opinion in the landmark 1941 Supreme Court case of Cuno Engineering Corp. v. Automatic Devices Corp. It defined the criteria for what was necessary to obtain a valid patent. If you're a patent attorney, then you'd certainly be familiar with the case. Of course, you'd also know that the resulting doctrine was subsequently repudiated in a 1952 revision to the U.S. Patent Code.
Admittedly, this egregious historical oversight might not impact the dramatic merits of the film. However, it certainly raises an immediate red flag about the film's verisimilitude. This is particularly true since the case depicted in "Flash of Genius" was litigated in the decade after the criteria had already been rejected.
One notes that the statutory language in question from 35 USC 103(a) is Patentability shall not be negatived by the manner in which the invention was made. Thus, the ABSENCE of a flash of genius does NOT preclude patentability ["shall not be negatived"]. The statute doesn't say anything about the significance of the PRESENCE of a flash of genius. After KSR v. Teleflex, patent attorneys might, in telling a good story, be talking about things like a flash of genius to argue patentability.
Some other lines from Lerner's review:
Kearns is fearful that Ford Motors will steal his brainchild, and tries to take precautions to prevent them from doing so.
Nowhere does it provide a clear explanation of why Ford and the giant firms are so vulnerable to litigation. [IPBiz: Kearns as a patent troll?]
***Autoblog points to an interesting omission in a Ford press release about the movie, given below-->
PRESS RELEASE
The film "Flash of Genius" chronicles the life story of Bob Kearns, who asserted that he invented the intermittent windshield wiper and sued Ford, Chrysler and other automakers for patent infringement. While films like "Flash of Genius" are made for entertainment purposes, the facts are often less dramatic.
Bob Kearns as well as hundreds of engineers from many companies, including Ford, helped develop the intermittent wiper as part of an evolution of existing automotive and electronic components.
While there are inaccuracies in the film, Ford sees no value in re-hashing the history of a legal case that was resolved in court almost 20 years ago, when a jury ruled that Ford did not willfully violate Mr. Kearns' patent.
Today, Ford continues to make engineering and design breakthroughs in areas such as fuel efficiency, safety and smart technology, and is proud of its 100-year legacy of innovation in automotive technology.
As the blog points out, Ford was found to have infringed the claims of Kearns' patent, just not willfully.
**The LA Times mentions the namesake of LBE in its review-->
Ford doesn’t exactly come off as a model of corporate rectitude. (Indeed, the movie's depiction of the automaker's behavior launched Roger Ebert of the Chicago Sun-Times on a rant against Wall Street, the Bush administration and general capitalist chicanery that reads more like an op-ed piece than a film review.)
Director Marc Abraham has said in interviews that he actually sympathized with the automaker a bit in its attempts to deal with Kearns, who by most accounts could be quirky and hard to handle. But Abraham also said he thinks his hero did indeed come up with the idea on his own and Ford was “denying him his dignity.”
One thing that bothered him was the title of the movie:
"Flash of Genius" takes its title from a phrase written by Justice William O. Douglas in his majority opinion in the landmark 1941 Supreme Court case of Cuno Engineering Corp. v. Automatic Devices Corp. It defined the criteria for what was necessary to obtain a valid patent. If you're a patent attorney, then you'd certainly be familiar with the case. Of course, you'd also know that the resulting doctrine was subsequently repudiated in a 1952 revision to the U.S. Patent Code.
Admittedly, this egregious historical oversight might not impact the dramatic merits of the film. However, it certainly raises an immediate red flag about the film's verisimilitude. This is particularly true since the case depicted in "Flash of Genius" was litigated in the decade after the criteria had already been rejected.
One notes that the statutory language in question from 35 USC 103(a) is Patentability shall not be negatived by the manner in which the invention was made. Thus, the ABSENCE of a flash of genius does NOT preclude patentability ["shall not be negatived"]. The statute doesn't say anything about the significance of the PRESENCE of a flash of genius. After KSR v. Teleflex, patent attorneys might, in telling a good story, be talking about things like a flash of genius to argue patentability.
Some other lines from Lerner's review:
Kearns is fearful that Ford Motors will steal his brainchild, and tries to take precautions to prevent them from doing so.
Nowhere does it provide a clear explanation of why Ford and the giant firms are so vulnerable to litigation. [IPBiz: Kearns as a patent troll?]
***Autoblog points to an interesting omission in a Ford press release about the movie, given below-->
PRESS RELEASE
The film "Flash of Genius" chronicles the life story of Bob Kearns, who asserted that he invented the intermittent windshield wiper and sued Ford, Chrysler and other automakers for patent infringement. While films like "Flash of Genius" are made for entertainment purposes, the facts are often less dramatic.
Bob Kearns as well as hundreds of engineers from many companies, including Ford, helped develop the intermittent wiper as part of an evolution of existing automotive and electronic components.
While there are inaccuracies in the film, Ford sees no value in re-hashing the history of a legal case that was resolved in court almost 20 years ago, when a jury ruled that Ford did not willfully violate Mr. Kearns' patent.
Today, Ford continues to make engineering and design breakthroughs in areas such as fuel efficiency, safety and smart technology, and is proud of its 100-year legacy of innovation in automotive technology.
As the blog points out, Ford was found to have infringed the claims of Kearns' patent, just not willfully.
**The LA Times mentions the namesake of LBE in its review-->
Ford doesn’t exactly come off as a model of corporate rectitude. (Indeed, the movie's depiction of the automaker's behavior launched Roger Ebert of the Chicago Sun-Times on a rant against Wall Street, the Bush administration and general capitalist chicanery that reads more like an op-ed piece than a film review.)
Director Marc Abraham has said in interviews that he actually sympathized with the automaker a bit in its attempts to deal with Kearns, who by most accounts could be quirky and hard to handle. But Abraham also said he thinks his hero did indeed come up with the idea on his own and Ford was “denying him his dignity.”
posted by Lawrence B. Ebert at 5:23 AM
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