Wednesday, February 08, 2017

Does the patent system view innovation as individual endeavor?

Within the law review article titled THE EMERGENCE OF THE INNOVATIVE ENTITY: IS THE PATENT SYSTEM LEFT BEHIND? [16 J. Marshall Rev. Intell. Prop. L. 65 (2016) ] , one has text

Despite the changes the patent system has undergone over the years, one main attribute remains constant: the patent system views innovation as an individual endeavor. The innovator is the intellectual genius: "an individual who creates new ideas though his intellectual capacities." n15 American culture loves its individual innovators: Thomas Edison, Alexander Graham Bell, Henry Ford, David Packard, Steve Jobs, and Bill Gates were all given a place in the hall of fame of individual inventors. n16 The problem is however that innovation production theories do not share this view.

with footnote 16 stating:

Michael J. Meurer, Inventors, Entrepreneurs and Intellectual Property Law, 45 HOUS. L. REV. 1201, 1202-03 (2008); See, e.g., Christopher A. Cotropia, The Individual Inventor Motif in the Age of the Patent Troll, 12 YALE J.L. & TECH. 52, 54 (2009); Edward G. Greive, The Doctrine of Inventorship: Its Ramifications in Patent Law, 17 W. RES. L. REV. 1342, 1342 (1966) ("The traditional inventors were usually individuals like Thomas Edison, who alone had 1039 patents issued to him."). But c.f., Mark A. Lemley, The Myth of the Sole Inventor, 110 MICH. L. REV. 709, 745 (2012) (claiming that the canonical story of the lone genius inventor is largely a myth, since almost all the great inventions, which were invented by individuals, were in fact invented simultaneously or nearly simultaneously by two or more people working independently of each other); and John Lienhard, Reflections on Information, Biology, and Community, 32 HOUS. L. REV. 303, 309 (1995) ("We all recite the myth of the lonely intellectual. Yet, creativity, with all its need for retreat and isolation, is not a lonely act after all. If great inventors like Edison or Bell had one overriding form of genius, it was a genius for forming communities of open and inventive collaborators around themselves. These scholars, too, treasured community.").

One might question the use of "individual," given that the patent system allows "joint" inventors. One might also question the use of "innovation" by the author. The patent system is about invention, with the issuance of patents facilitating innovation in some cases.

Separately, from 69 SMU L. Rev. 37 (2016) ,

The final argument pertains to the considerable recognition individual inventors have achieved, especially before the Second World War. As children have been taught in elementary schools--whether entirely correct or not n47--Samuel Morse invented the telegraph, Alexander Graham Bell the telephone, Thomas Edison the gramophone and the light bulb, Guglielmo Marconi the radio, and the Wright Brothers the airplane. n48 The more we focus on individual inventors and the human dimension of their inventions, the more we are ready to recognize their human rights.

with footnote 47

As Mark Lemley declared:

The canonical story of the lone genius inventor is largely a myth. Edison didn't invent the lightbulb; he found a bamboo fiber that worked better as a filament in the lightbulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of the United States Reports resolving the question of whether Bell could have a patent despite the fact that he hadn't actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk as a result of an improvement they made to a basic wing structure designed by others, but their plane didn't work very well. It was quickly surpassed by aircraft built by Glenn Curtiss and others--planes that the Wrights delayed by over a decade with patent lawsuits. And on and on.

Mark A. Lemley, The Myth of the Sole Inventor, 110 MICH. L. REV. 709, 710-11 (2012) [hereinafter Lemley, Myth of the Sole Inventor]; see also Susan Scafidi, Digital Property / Analog History, 38 LOY. L.A. L. REV. 245, 251-58 (2004) (discussing whether Guglielmo Marconi should be heralded as the "Father of Radio").


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