Wednesday, March 16, 2016

More on the Myth of the Sole Inventor. Was Edison Patent Racing to the light bulb?

Back in 2011, IPBiz had commented on Lemley's response to Katznelson in the post
Mark Lemley strikes back
, related to issues expressed in Lemley's "Myth of the Sole Inventor."

IPBiz has made several followup comments, including
Patent jacking, sole inventors, Edison's light bulb and the upcoming patent interference on CRISPR

There is a law review article by Lea Shaver, Illuminating Innovation: From Patent Racing to Patent War, 69 Wash & Lee L. Rev. 1891 (2012) that sides with Lemley in the matter disputed with Howells and Katznelson.

As to set-up in the Shaver article:

In case after case, Lemley's article illustrates that multiple inventors working on the same technological problem have arrived at the same solution at nearly the same time. n70 The archetypal case here is the telephone: Alexander Graham Bell and Elisha Gray reportedly filed their competing  [p. 1914]  patent applications on the very same day. n71 Simultaneous invention may also take a less obvious form, wherein a single product builds on incremental inventive contributions by so many different parties that it truly has no identifiable inventor. n72

As to factual matters, Bell filed a patent application, which had been in the works for some time, while Gray filed a caveat, which had been recently created. Invited to file an application by the US Patent Office, Gray declined and left priority to Bell. Western Union (of which Gray was a co-founder), aligned with Thomas Edison, fought Bell in the courts.

Yes, Shaver mentions the light bulb:

The Myth of the Sole Inventor actually includes the light bulb among its historical examples of simultaneous invention, along the incremental model. n78 Lemley correctly characterizes Edison's  [p. 1915]  inventive contribution as "an incremental one: one in a long chain of improvements." n79 Indeed, the contributions of Edison's research team took the form of a chain of improvements as well, with multiple patents filed on various aspects of the light bulb and its related technology as they were developed, ultimately building a robust patent portfolio surrounding electric light technology. A closer look at the development of the incandescent light bulb reveals strong support for some aspects of patent racing theory, and also suggests ways in which the framework requires complication and revision.

Shaver mentions Sawyer and Man:

The leading American competition was the Sawyer-Man team. n94 William Sawyer was a journalist turned inventor funded primarily by New York lawyer Albon Man, who organized the Electro-Dynamic Light Company for this purpose.

As to Howells and Katznelson, Shaver writes:

My own examination of the light bulb case puts me on the side of Lemley rather than his critics. The central mistake made by Howells and Katznelson is to treat judicial opinions and patent claims as reliable evidence of who really did what. n115 These legal documents emphatically assert that Edison's inventive contributions were without peer. Such assertions, however, should be treated with great skepticism. The historical claims about Edison's contributions, which Howells and Katznelson present as fact, are better understood as a deeply mythologized "narrative of invention" that Edison himself forged in preparation for litigation. n116 The model of incremental innovation more accurately fits the true history of the light bulb's development.

Within the Supreme Court case, The Consolidated Electric Light Company, Appellant, v. The McKeesport Light Company
159 U.S. 465; 16 S. Ct. 75; 40 L. Ed. 221 (1895) ,

It is admitted that the lamp described in the Sawyer and Man patent is no longer in use, and was never a commercial success; that it does not embody the principle of high resistance with a small illuminating surface; that it does not have the filament burner of the modern incandescent lamp; that the lamp chamber is defective, and that the lamp manufactured by the complainant and put upon the market is substantially the Edison lamp; but it is said that, in the conductor used by Edison, (a particular part of the stem of the bamboo lying directly beneath the silicious cuticle, the peculiar fitness for which purpose was undoubtedly discovered by him,) he made use of a fibrous or textile material, covered by the patent to  [p. 472]  Sawyer and Man, and is, therefore, an infringer. It was admitted, however, that the third claim -- for a conductor of carbonized paper -- was not infringed.

The relevant Sawyer/Man claims were found indefinite, and the Supreme Court never explicitly established priority of invention. The key insight of Edison was of a high resistance filament, thereby allowing low current consumption, was never understood by Sawyer and Man.

In passing, platinum filaments had been tried before Edison, AND light bulbs came to be filled by inert gas, not vacuum. Although Edison is credited as discoverer of the "Edison effect," he missed out on the opportunity for the diode.



**In passing, as to university research at Rutgers:


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