Marconi, Tesla, and the invention of radio
In Lemley's "Myth of the Solo Inventor," there is reference to Marconi, Tesla and the invention of radio:
Interestingly, Marconi originally viewed his invention as a niche improvement in telegraphy, primarily of use in allowing ships at sea to communicate with each other. n106 He did not see his invention as a medium for one-to-many communication, the primary use that was made of the technology for the next hundred years. That did not prevent him from claiming broad patents covering radio, however. The Marconi Company sued the United States for infringing its patents in 1916. The case lasted nearly thirty years and went to the Supreme Court, which held that Marconi's patents were invalid based on prior work by Nikola Tesla. n107
from Mark A. Lemley, The Myth of the Sole Inventor, 110 MICH. L. REV. 709, 710 (2012)
Reference 107 is to 320 U.S. 1; 63 S. Ct. 1393; 87 L. Ed. 1731 (1943). The 1943 case was an appeal from the Court of Claims:
The Marconi Company brought this suit in the Court of Claims pursuant to 35 U. S. C. § 68, to recover damages for infringement of four United States patents. Two, No. 763,772, and reissue No. 11,913, were issued to Marconi, a third, No. 609,154, to Lodge, and a fourth, No. 803,684, to Fleming. The court held that the Marconi reissue patent was not infringed. It held also that the claims in suit, other than Claim 16, of the Marconi patent No. 763,772, are invalid; and that Claim 16 of the patent is valid and was infringed. It gave judgment for petitioner on this claim in the sum of $ 42,984.93 with interest. It held that the Lodge patent was valid and infringed, and that the Fleming patent was not infringed and was rendered void by an improper disclaimer. The case comes here on certiorari, 317 U.S. 620, 28 U. S. C. § 288 (b), [*4] on petition of the Marconi Company in No. 369, to review the judgment of the Court of Claims holding invalid the claims in suit, other than Claim 16, of the Marconi patent, and holding the Fleming patent invalid and not infringed, and on petition of the Government in No. 373, to review the decision allowing recovery for infringement of Claim 16 of the Marconi patent. No review was sought by either party of so much of the court's judgment as sustained the Lodge patent and held the first Marconi reissue patent not infringed.
This was a case to a claim to a combination, wherein all elements of the combination were known:
Long before Marconi's application for this patent the scientific principles of which he made use were well understood and the particular appliances constituting elements in the apparatus combination which he claimed were well known. About seventy years ago Clerk Maxwell described the scientific theory of wireless communication through the transmission of electrical energy by ether waves. 6 Between 1878 and 1890 Hertz devised apparatus for achieving that result which was described by de Tunzelmann in a series of articles published in the London Electrician in 1888. One, of September 21, 1888, showed a transmitter comprising a closed circuit inductively coupled with an open circuit. The closed circuit included a switch or circuit breaker capable of use for sending signals, and an automatic circuit breaker capable, when the switch was closed, of setting up an intermittent current in the closed circuit which in turn induced through a transformer an intermittent current of higher voltage in the open circuit. The open circuit included a spark gap across which a succession of sparks were caused to leap whenever the signal switch was closed, each spark producing a series of high frequency oscillations in the open circuit.
Tesla's name appears 24 times, including:
In 1892, Crookes published an article in the Fortnightly Review in which he definitely suggested the use of Hertzian waves for wireless telegraphy and pointed out that the method of achieving that result was to be found in the use and improvement of then known means of generating electrical waves of any desired wave length, to be transmitted through the ether to a receiver, both sending and receiving instruments being attuned to a definite wave length. 9 A year later Tesla, who was then preoccupied with the wireless transmission of power for use in lighting or for the operation of dynamos, proposed, in a lecture before the Franklin Institute in Philadelphia, the use of adjustable high frequency oscillations for wireless transmission of signals. 10
**Of solo inventors, see also
Jasjit Singh & Lee Fleming, Lone Inventors as Sources of Breakthroughs: Myth or Reality?, 56 MGMT. SCI. 41, 41 (2010) (noting the history of famous inventors extolling the virtues of lone inventors)
Stefan Wuchty et al., The Increasing Dominance of Teams in Production of Knowledge, 316 SCI. 1036, 1037-38 (2007) (showing that patents by teams of inventors have greater impact than those by solo inventors)
**See also
A Critique of Mark Lemley’s 'The Myth of the Sole Inventor' with abstract:
Professor Mark Lemley advances a thesis that “the canonical story of the lone genius inventor is largely a myth” and describes a selection of pioneer inventions to support his thesis. We show that Lemley has many of his facts wrong. We examine his assertions and set the record straight in the pioneer invention cases of Edison, the Wright brothers, the Selden automobile patent vis a vis Ford, Watt and the steam engine and Fleming and penicillin. We are concerned with the errors in alleged historical and legal facts in what Lemley calls “lessons of history” and “realities of innovation” because these are used to argue that the patent system does not work as patent theory suggests. We show that Lemley’s major thesis that these inventions were made “near-simultaneously” by others has no basis in fact and show that patent law inherently ensures that patent protection is not extended to near simultaneous inventions. We illustrate that the lessons of history, when informed by consultation of relevant patents, legal decisions and patent law not only do not support Lemley’s central thesis, but offer valuable insights into how America’s historical patent system and innovation work together to foster development.
This criticism of Lemley does not mention Marconi, but does discuss Edison:
First, although Lemley cites a Supreme Court case in 189519 as a source for this statement, he
neglects to inform us of the decision reported in that case: it affirmed a lower court‘s 1889 decision
holding the Sawyer & Man patent invalid.20
Second, Lemley does not mention that Sawyer & Man asserted in this case against Edison their
patent No. 317,676, filed on January 9, 1880, more than two months after Edison applied for his
key patent No. 223,898. And Lemley neglects to tell us that Sawyer & Man never got a fibrous
carbon filament light bulb to work before Edison‘s invention.
Third, Sawyer & Man‘s patent was invalid for overreaching what they actually invented (which we
call § 112 ¶ 1 ―written description‖ today). The lower court observed that Sawyer & Man
unsuccessfully attempted to capture features of Edison‘s lamp:
―It is very clear to us that, in the original application for the patent sued on, the applicants had no
such object in view as that of claiming all carbon made from fibrous and textile substances as a
conductor for an incandescing electric lamp. Nothing on which to base any such claim is disclosed
in the original application. We have carefully compared it with the amended application, on which
the patent was issued, and are fully satisfied that, 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.
Fourth, Sawyer & Man stood on essentially the same ground as Edison vis-à-vis the prior art: lamps
by electric incandescence were known since 1845 – years before Sawyer & Man or Edison‘s
inventions. Technology advances then were insufficient to make electric incandescent lighting
commercially feasible. The lamps experimented with at that time had operating life of only a few
hours as the carbon incandescent rods were consumed or had to be reattached often. Sawyer &
Man‘s improvements were directed at having a lamp filled with an absorbent of carbonic acid gas, a
spring-loaded feeder feeding a vertical carbon pencil upwards as it was consumed and a design for
cheap carbon pencil renewal with easy sealing and exhausting of air.23
Despite these improvements, and even after Edison‘s invention, ―many of the [Sawyer & Man] lamps failed to last more than a
few hours‖.
Fifth, the electrical resistance of these lamps was typically only a few Ohms and thus required large
currents to power them, rendering power losses through long distribution wires prohibitive. Lemley
also neglects to tell us that Sawyer & Man‘s light bulbs could not be used effectively more than a
few feet away from a generator, and therefore had little commercial practicality.
Edison‘s invention was directed at solving these problems in a context of a full system for electric
lighting, as he was the first to recognize that lamp resistance must be made much larger – several
hundred Ohms – for it to have a chance of commercial success. He achieved this by finding ways
for making extremely thin high resistance carbon filaments, which could only operate in extreme
vacuum. And that, in turn, required Edison to invent a new way of constructing the bulb, to have
all components sealed inside a single glass vessel, and to mold the vessel around leading-in wires
that had to pass through the glass. The results were spectacular as his lamps had an operational life
span of about 1000 hours,25 about one hundred times longer than that of Sawyer & Man‘s or any
other prior art lamp.
IPBiz does disagree with the premise that Edison was a solo or sole inventor of the high resistance
invention, even though the critique of Lemley states:
Thomas A. Edison is the sole inventor named on U.S.
Patent 223,898 – the pioneer patent of electric incandescent lighting; his invention was not a ―social
phenomenon‖ and Lemley adduces no evidence that others conceived the critical combination of
high-resistance low current filament principle and high-vacuum, sealed bulb design. The ―social‖
trend around Edison of inventing electric incandescent lighting by the brute force of high currents
led nowhere for 35 years. One can only speculate how much longer it would have taken someone
else to come up with Edison‘s idea had it not been for Edison‘s reliance on the patent system and
the revenue it protected to support his research and development over the two years that he spent
on inventing his incandescent electric lamp.
The critique concludes:
While we cannot fault Lemley for not having the technical background on the specific inventions
that he writes about, his work is the demonstrable result of the absence of such knowledge,
knowledge that could be obtained by consultation with competent technical sources on the subject
or simply by reading the reliable sources among Lemley‘s cited sources. Throughout his essay
Lemley retains the straw-man model of the naïve view of invention that serves only to muddle his
analysis. His historical evidence is often self-contradicting and at times plain wrong in its facts.
Interestingly, Marconi originally viewed his invention as a niche improvement in telegraphy, primarily of use in allowing ships at sea to communicate with each other. n106 He did not see his invention as a medium for one-to-many communication, the primary use that was made of the technology for the next hundred years. That did not prevent him from claiming broad patents covering radio, however. The Marconi Company sued the United States for infringing its patents in 1916. The case lasted nearly thirty years and went to the Supreme Court, which held that Marconi's patents were invalid based on prior work by Nikola Tesla. n107
from Mark A. Lemley, The Myth of the Sole Inventor, 110 MICH. L. REV. 709, 710 (2012)
Reference 107 is to 320 U.S. 1; 63 S. Ct. 1393; 87 L. Ed. 1731 (1943). The 1943 case was an appeal from the Court of Claims:
The Marconi Company brought this suit in the Court of Claims pursuant to 35 U. S. C. § 68, to recover damages for infringement of four United States patents. Two, No. 763,772, and reissue No. 11,913, were issued to Marconi, a third, No. 609,154, to Lodge, and a fourth, No. 803,684, to Fleming. The court held that the Marconi reissue patent was not infringed. It held also that the claims in suit, other than Claim 16, of the Marconi patent No. 763,772, are invalid; and that Claim 16 of the patent is valid and was infringed. It gave judgment for petitioner on this claim in the sum of $ 42,984.93 with interest. It held that the Lodge patent was valid and infringed, and that the Fleming patent was not infringed and was rendered void by an improper disclaimer. The case comes here on certiorari, 317 U.S. 620, 28 U. S. C. § 288 (b), [*4] on petition of the Marconi Company in No. 369, to review the judgment of the Court of Claims holding invalid the claims in suit, other than Claim 16, of the Marconi patent, and holding the Fleming patent invalid and not infringed, and on petition of the Government in No. 373, to review the decision allowing recovery for infringement of Claim 16 of the Marconi patent. No review was sought by either party of so much of the court's judgment as sustained the Lodge patent and held the first Marconi reissue patent not infringed.
This was a case to a claim to a combination, wherein all elements of the combination were known:
Long before Marconi's application for this patent the scientific principles of which he made use were well understood and the particular appliances constituting elements in the apparatus combination which he claimed were well known. About seventy years ago Clerk Maxwell described the scientific theory of wireless communication through the transmission of electrical energy by ether waves. 6 Between 1878 and 1890 Hertz devised apparatus for achieving that result which was described by de Tunzelmann in a series of articles published in the London Electrician in 1888. One, of September 21, 1888, showed a transmitter comprising a closed circuit inductively coupled with an open circuit. The closed circuit included a switch or circuit breaker capable of use for sending signals, and an automatic circuit breaker capable, when the switch was closed, of setting up an intermittent current in the closed circuit which in turn induced through a transformer an intermittent current of higher voltage in the open circuit. The open circuit included a spark gap across which a succession of sparks were caused to leap whenever the signal switch was closed, each spark producing a series of high frequency oscillations in the open circuit.
Tesla's name appears 24 times, including:
In 1892, Crookes published an article in the Fortnightly Review in which he definitely suggested the use of Hertzian waves for wireless telegraphy and pointed out that the method of achieving that result was to be found in the use and improvement of then known means of generating electrical waves of any desired wave length, to be transmitted through the ether to a receiver, both sending and receiving instruments being attuned to a definite wave length. 9 A year later Tesla, who was then preoccupied with the wireless transmission of power for use in lighting or for the operation of dynamos, proposed, in a lecture before the Franklin Institute in Philadelphia, the use of adjustable high frequency oscillations for wireless transmission of signals. 10
**Of solo inventors, see also
Jasjit Singh & Lee Fleming, Lone Inventors as Sources of Breakthroughs: Myth or Reality?, 56 MGMT. SCI. 41, 41 (2010) (noting the history of famous inventors extolling the virtues of lone inventors)
Stefan Wuchty et al., The Increasing Dominance of Teams in Production of Knowledge, 316 SCI. 1036, 1037-38 (2007) (showing that patents by teams of inventors have greater impact than those by solo inventors)
**See also
A Critique of Mark Lemley’s 'The Myth of the Sole Inventor' with abstract:
Professor Mark Lemley advances a thesis that “the canonical story of the lone genius inventor is largely a myth” and describes a selection of pioneer inventions to support his thesis. We show that Lemley has many of his facts wrong. We examine his assertions and set the record straight in the pioneer invention cases of Edison, the Wright brothers, the Selden automobile patent vis a vis Ford, Watt and the steam engine and Fleming and penicillin. We are concerned with the errors in alleged historical and legal facts in what Lemley calls “lessons of history” and “realities of innovation” because these are used to argue that the patent system does not work as patent theory suggests. We show that Lemley’s major thesis that these inventions were made “near-simultaneously” by others has no basis in fact and show that patent law inherently ensures that patent protection is not extended to near simultaneous inventions. We illustrate that the lessons of history, when informed by consultation of relevant patents, legal decisions and patent law not only do not support Lemley’s central thesis, but offer valuable insights into how America’s historical patent system and innovation work together to foster development.
This criticism of Lemley does not mention Marconi, but does discuss Edison:
First, although Lemley cites a Supreme Court case in 189519 as a source for this statement, he
neglects to inform us of the decision reported in that case: it affirmed a lower court‘s 1889 decision
holding the Sawyer & Man patent invalid.20
Second, Lemley does not mention that Sawyer & Man asserted in this case against Edison their
patent No. 317,676, filed on January 9, 1880, more than two months after Edison applied for his
key patent No. 223,898. And Lemley neglects to tell us that Sawyer & Man never got a fibrous
carbon filament light bulb to work before Edison‘s invention.
Third, Sawyer & Man‘s patent was invalid for overreaching what they actually invented (which we
call § 112 ¶ 1 ―written description‖ today). The lower court observed that Sawyer & Man
unsuccessfully attempted to capture features of Edison‘s lamp:
―It is very clear to us that, in the original application for the patent sued on, the applicants had no
such object in view as that of claiming all carbon made from fibrous and textile substances as a
conductor for an incandescing electric lamp. Nothing on which to base any such claim is disclosed
in the original application. We have carefully compared it with the amended application, on which
the patent was issued, and are fully satisfied that, 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.
Fourth, Sawyer & Man stood on essentially the same ground as Edison vis-à-vis the prior art: lamps
by electric incandescence were known since 1845 – years before Sawyer & Man or Edison‘s
inventions. Technology advances then were insufficient to make electric incandescent lighting
commercially feasible. The lamps experimented with at that time had operating life of only a few
hours as the carbon incandescent rods were consumed or had to be reattached often. Sawyer &
Man‘s improvements were directed at having a lamp filled with an absorbent of carbonic acid gas, a
spring-loaded feeder feeding a vertical carbon pencil upwards as it was consumed and a design for
cheap carbon pencil renewal with easy sealing and exhausting of air.23
Despite these improvements, and even after Edison‘s invention, ―many of the [Sawyer & Man] lamps failed to last more than a
few hours‖.
Fifth, the electrical resistance of these lamps was typically only a few Ohms and thus required large
currents to power them, rendering power losses through long distribution wires prohibitive. Lemley
also neglects to tell us that Sawyer & Man‘s light bulbs could not be used effectively more than a
few feet away from a generator, and therefore had little commercial practicality.
Edison‘s invention was directed at solving these problems in a context of a full system for electric
lighting, as he was the first to recognize that lamp resistance must be made much larger – several
hundred Ohms – for it to have a chance of commercial success. He achieved this by finding ways
for making extremely thin high resistance carbon filaments, which could only operate in extreme
vacuum. And that, in turn, required Edison to invent a new way of constructing the bulb, to have
all components sealed inside a single glass vessel, and to mold the vessel around leading-in wires
that had to pass through the glass. The results were spectacular as his lamps had an operational life
span of about 1000 hours,25 about one hundred times longer than that of Sawyer & Man‘s or any
other prior art lamp.
IPBiz does disagree with the premise that Edison was a solo or sole inventor of the high resistance
invention, even though the critique of Lemley states:
Thomas A. Edison is the sole inventor named on U.S.
Patent 223,898 – the pioneer patent of electric incandescent lighting; his invention was not a ―social
phenomenon‖ and Lemley adduces no evidence that others conceived the critical combination of
high-resistance low current filament principle and high-vacuum, sealed bulb design. The ―social‖
trend around Edison of inventing electric incandescent lighting by the brute force of high currents
led nowhere for 35 years. One can only speculate how much longer it would have taken someone
else to come up with Edison‘s idea had it not been for Edison‘s reliance on the patent system and
the revenue it protected to support his research and development over the two years that he spent
on inventing his incandescent electric lamp.
The critique concludes:
While we cannot fault Lemley for not having the technical background on the specific inventions
that he writes about, his work is the demonstrable result of the absence of such knowledge,
knowledge that could be obtained by consultation with competent technical sources on the subject
or simply by reading the reliable sources among Lemley‘s cited sources. Throughout his essay
Lemley retains the straw-man model of the naïve view of invention that serves only to muddle his
analysis. His historical evidence is often self-contradicting and at times plain wrong in its facts.
posted by Lawrence B. Ebert at 9:57 AM
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