Do simultanous inventors benefit society equally?
In the "Myth of the Sole Inventor" [ 110 Mich. L. Rev. 709 (2012) ] Mark Lemley suggested that most inventions were made by more than one inventive group at about the same time. Because of this, Lemley suggested certain revisions to patent law. However, an unstated, and untrue, assumption, was that the "simultaneous" inventors possessed the same invention, and thus that the "simultaneous" inventions were fungible.
As to simultaneous inventions, Lemley writes:
The point can be made more generally: surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. Inventors build on the work of those who came before, and new ideas are often either "in the air" or result from changes in market demand or the availability of new or cheaper starting materials. And in the few circumstances where that is not true - where inventions truly are "singletons" - it is often because of an accident or error in the experiment rather than a conscious effort to invent. n2
This result is a real problem for classic theories of patent law. If we are supposed to be encouraging only inventions that others in the field couldn't have made, we should be paying much more attention than we currently do to simultaneous invention.
I offer some suggestions for reforming patent law to take account of patent races given the prevalence of simultaneous invention.
Part I discusses the remarkable prevalence of simultaneous invention throughout history.
There are various reasons for the prevalence of simultaneous invention. First, many inventions arise in response to consumer demand. If, suddenly, the world wants to participate in online social networks, many people will seek to fill that need, and - absent some large technical barrier - they will likely do so at roughly the same time.
Donald Campbell compares simultaneous inventors to rats in a maze, each independently discovering the same path because it is the path that is there to be discovered
**One notes that Lemley does not discuss the story of Gary Kildall (CP/M) and Bill Gates (QDOS; MSDOS) anywhere in Myth of the Sole Inventor. As wikipedia writes: Kildall was one of the first people to see microprocessors as fully capable computers rather than equipment controllers and to organize a company around this concept. (...) in 1973, he developed the first high-level programming language for microprocessors, called PL/M. He created CP/M the same year to enable the 8080 to control a floppy drive,
Kildall was the first person to create a disk-based operating system.
But things did not turn out well for Kildall, who had the so-called "first mover" advantage, well in advance of Bill Gates and Tim Paterson. Further, Harold Evans in the book "They Made America," makes a case that the IBM decision to go with Gates on an operating system made society worse off for about ten years.
Lemley's idea of "simultaneous invention" does not establish "equal invention," mainly because Lemley is a little fuzzy on what "invention" is. One example that Lemley goes through is Edison, wherein Lemley seems to believe everyone working on the light bulb was doing about the same thing, and achieving about the same results.
** Mark Lemley wrote of Edison in the "Myth of the Sole Inventor"
It seems clear, however, that Edison did not "invent" the lightbulb in any meaningful sense. Electric lighting had a long history by the time Edison entered the field, starting with the arc lighting work of Sir Humphrey Davy. n69 Even incandescent lightbulbs - glass vacuum tubes through which a poor conductor of electricity was looped, giving off heat and light as an electric current was passed through it - were known before Edison entered the field. Sawyer and Man patented the incandescent lightbulb; indeed, when Edison built his improved incandescent lightbulb, Sawyer and Man sued for patent infringement. n70 They weren't the only ones; Joseph Swan owned the patent rights in England, and his enforcement of that patent persuaded Edison to merge his operations with Swan's rather than risk a suit. n71 All in all, as the Supreme Court noted, "[a] large number of persons, in various countries" were working on incandescent lighting in the 1870s. n72
Edison's particular inventive contribution was the discovery of a new filament - a particular species of bamboo - that worked better than Sawyer [p. 723] and Man's carbonized paper because it had a higher resistance to electricity and so turned more of the power routed through the bulb into light. Higher resistance was a useful contribution, though it is worth noting that Edison's core patent, U.S. Patent No. 223,898, was filed in a rush to beat known competitors to market and included elements like a spiral filament that he himself soon abandoned.
Back in 2012 during the time of discussion of Lemley's "Myth of the Sole Inventor", Martin Griswold wrote:
Thomas Edison invented the light bulb in 1879. What if he had never been born, Would we still have light bulbs? And would they still have been invented in 1879? It turns out that this is not just a philosophical question and the answer is yes, the light bulb would have been invented at roughly the same time. We know this because at least 23 other people built prototype light bulbs before Edison1, including two groups who filed patents and fought legal battles with him over the rights (Sawyer and Mann in the U.S. and Swan in England)
In the case of the light bulb, Edison’s main contribution was a new filament made out of a certain species of bamboo that worked better than the carbonized paper used by Sawyer and Mann before him. The incandescent bulb — a resistive filament looped inside an evacuated glass bulb — had already been developed. Filament material continued to be improved upon by others after Edison’s work.
As Lemley puts it, “An isolated flash of genius could strike at any time, while the thirteenth step in a multistage inventive process is likely to come after the twelfth.”
Griswold (and Lemley) misidentified Edison's invention as related to bamboo. In fact, bamboo is NOT mentioned in Edison's key '898 patent, because Edison had not even tried it at the time of filing. Edison's invention was about high resistance filaments, which no one else was trying at the time, so the idea that Edison's bulb would have been invented by others in 1879 is highly unlikely.
***Gary Kildall is quoted in the law review article by Alan L. Durham, "Useful Arts" in the Information Age,1999 B.Y.U.L. Rev. 1419 :
On the other hand, significant parallels can be drawn between the design of a computer program and the design of a steam engine or a clock or any of the kinds of physical tools that were familiar to the Framers. In the words of software designer Gary Kildall, "[A] lot of programming is invention and engineering. It's much like a carpenter who has a mental picture of a cabinet he's trying to build. He has to wrestle with the design and construction to get it into a physical form. That's very much what I do in programming." n226 Like the cabinet builder, the programmer turns an idea into a useful product. The builder's task is to transform physical materials into useful objects within the constraints imposed by nature; "the programmer's [p. 1464] task is to set logic to work in the world, and to do so he must mediate between the problem to be solved and the rigorous and curiously unnatural brand of logic by which the computer operates." n227 The programmer and the builder are each highly skilled, n228 and each turns out a product that, at least in some cases, is practical and valuable.
Kildall argues that programs are "like mechanical devices; the way one piece of code works with another is very similar to the way one gear meshes with another gear. Building code is a little like building a transmission." n229 In fact, logical structures can often substitute for physical structures and vice versa. Computer users are familiar with "virtual" substitutes for a wide variety of useful things - clocks, calendars, notepads, typewriters, artist's pallets, and film editors among them. Conversely, Hillis built the logic necessary to play tic-tac-toe out of Tinker Toys and string. Designers of computerized systems often have a choice as to whether certain functions should be embodied in a program or "hard wired" as electronic circuitry. n230 Consequently, any "useful arts" distinction based on [p. 1465] physicality is disturbingly superficial. n231
Kildall is also mentioned in 9 Mich. Telecomm. Tech. L. Rev. 313 (2003) :
Mass-market software really dates from the emergence of small, relatively inexpensive personal computers in the late 1970s and early 1980s. Someone who wrote a useful program could now hope to sell copies to a large number of less sophisticated computer users. n83 As a result, this era saw an explosion of proprietary software. In 1974, Gary Kildall created what was probably the first commercial operating system for personal computers, CP/M, and licensed it to many computer manufacturers. n84
Note: Ken Polsson, Chronology of Events in the History of Microcomputers, at http://web.archive.org/web/19990427035916/http://www.islandnet.com/