Friday, November 14, 2008

Sometimes inventors do understand the significance of their invention!

In an upcoming article in the John Marshall Review of Intellectual Property , titled WHAT THE STORY OF THE INVENTION OF THE TRANSISTOR TEACHES US ABOUT 21ST CENTURY PATENT PRACTICE, LBE quotes Nick Holonyak, Jr.'s discussion of Mark Lemley's opinion that the inventors of the transistor foresaw uses only in the area of hearing aids.

Holonyak was John Bardeen's first grad student, and has direct knowledge of Bardeen's thoughts on the invention of the transistor.

It should be noted that Holonyak did some inventing on his own. The November 2008 issue of the Continental flight magazine has an article titled: Bright Idea. The inventor behind the light-emitting diode, Nick Holonyak Jr., devised a new way to light up the world. [page 79] Curiously, the article features a long-ago prediction by Holonyak that has come to pass:

In the February 1963 issue of Reader's Digest, Nick Holonyak Jr. made a bold prediction--that one day, light emitting diodes (LEDs) would replace the incandescent light bulb. "I knew it would happen," says the inventor of the first visible LED. "I just didn't know how and when." Forty-five years later, early adopters are finally switching from compact fluorescent lightbulbs to LED equivalents that can last 4,000 hours longer and use as little as half the energy.

Holonyak was inducted into the National Inventors Hall of Fame in May 2008.

The article also noted: In 1961, after rival inventors created LEDs that emitted infrared light, the race was on to develop an LED that gave off light in the visible spectrum. Holonyak was the first to make silicon glow with red light, while working at General Electric.

The Continental article is written by John Patrick Pullen.

As to Lemley's thoughts about inventors [ “They frequently misunderstand the significance of their own invention and the uses to which it can be put.” ], Nick Holonyak, Jr. is at least twice a counter-example:

**He directly negates what Lemley observed about the inventors of the transistor, through Holonyak's knowledge of Bardeen

**His own predictions about the LED separately negate Lemley's conjecture

*****Within the law review article by LBE, a footnote states-->

In the article by Lawrence B. Ebert, “Foreseeability and the Transistor,” Intellectual Property Today, p. 41 (Oct. 2004). Of the hearing aid story in the law reviews, Professor Holonyak wrote: "It is 'untrue' (not the least correct) that the originators of the transistor foresaw only hearing-aid applications. That is a totally naive thought-wrong to even contemplate that scientists so ingenious as to devise a totally new amplifying and switching element in a semiconductor, uncover an entirely new idea and device (in a solid substance!) and then would be so limited and think it might have only one application, only hearing aids. What a naive, ridiculous view! No first rate scientist, or patent attorney drawing up claims, is that one dimensional."

referring to the text “the inventors of the transistor, who anticipated its use in hearing aids;” appearing (among other places) in footnote 29 of Mark Lemley, Ex Ante versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129 (2004) , citing to Carol Haber, Electronic Breakthroughs: Big Picture Eludes Many, 40 Electronic News 2018 (June 13, 1994)

**It should be noted that Haber's article amounted to an interview with a Stanford professor of economics who was relying on an imperfect recollection of a New York Times article for the hearing aid assertion. The Times article did not say what the economics professor thought it did, but, the saga has evolved into a law professor urban legend. The reality of the thoughts of the transistor inventors is quite different from the Lemley assertion as repeated in several law review articles.

Apart from the factual problem as to what the inventors of the transistor thought about potential applications, this story illustrates at least two problems with cite-checking done at law reviews:

#1. The Haber article is at page 46, not at page 4018, so the University of Chicago cite checker didn't even bother to check the cite for accuracy of the citation reference.

#2. At best, it is true that Haber did make the assertion about hearing aids, but it is untrue that the primary reference (the New York Times) made the assertion. Thus, one can introduce COMPLETELY FALSE INFORMATION into the law review literature merely by citing someone else who made a false statement. Cite checkers do not evaluate the truthfulness of what is said; they merely check to see someone said it (and not even necessarily the correct page of the cite!). Given the legal system's general avoidance of hearsay evidence, it is rather humorous to look at this evidentiary chain:

Lemley citing Haber who quoted Rosenberg who mis-remembered the facts of an article in the New York Times (which article on July 1, 1948 did not even mention hearing aids!)


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