Sunday, September 12, 2004

Inventors of transistor foresaw only a hearing aid application?

In the September 2004 issue of Intellectual Property Today (FORESEEING A NOT OBVIOUS FUTURE, pp. 34-37), I address the frequently-repeated contention that the inventors of the transistor (who are Bardeen, Brattain, and Shockley) foresaw a use for the transistor only in hearing aids. From the text of the article in IPT:

In 2004, in footnote 29 of 71 U. Chi. L. Rev. 129, it was suggested that the inventors of the transistor anticipated a use for hearing aids and therein did not foresee the full scope of their invention. I believe that the motivation of the research project [at Bell Labs](replacing unreliable tubes by more reliable solid state devices in phone systems), the imposition of confidentiality on the research, the competition among the inventors, the concern over patents, and the briefing of the military all indicate that the inventors were aware that the impact of the transistor would be significant and extended far beyond hearing aids. Further, Bell Labs readily licensed its technology to companies in the consumer products area, so that uses beyond those contemplated by the inventors were readily developed.

An endnote in the Sept. 04 IPT article states:

I questioned the accuracy of footnote 29 and received a response from the law review: “The Law Review checks and proofs its articles very thoroughly before publication in order to ensure that no substantive errors are published. It is our policy not to issue corrections for stylistic or substantive disagreements.” One may also consider the following. 1. The citation within footnote 29 in the article in the University of Chicago Law Review to the article by Carol Haber in Electronic News has confused the issue number of Electronic News (2018) with the page number (46). Thus, the citation itself is mechanically wrong. 2. There is no support whatsoever in the Haber article for what the inventors of the transistor did, or did not, think of the uses for the transistor. The Haber article mentions discussion of the transistor in an article by the New York Times: "The invention of the transistor was not front page news but a tiny item in a weekly column "News of Radio" buried inside a 1947 edition of the New York Times. The device, the article predicted, 'might be used to develop better hearing aids for the deaf.'" Thus, there is no support in the cited reference for a lack of understanding of the scope of the invention by the inventors, the reason for which the reference was cited. The footnote should have failed cite-checking for both of these reasons. [Parenthetically, there is also a potential issue with the mention of the year 1947 in the Haber article as opposed to the year 1948; the transistor was not named until 1948 and there was a news blackout by Bell Labs until June 30, 1948.] As a related matter, one notes that academic commentators have recently been highly critical of behavior at the U.S. Patent Office (e.g., (e)stopping the madness at the PTO in 116 Harvard Law Review 2164 (2003)) yet the PTO of 50 years ago seems to have better understood transistors than some current academicians. One has to be careful about the accuracy of footnotes in law reviews. (also, L. B. Ebert, 4 CHI-K. J. INTELL. PROP. 129 (2004)).

For those interested, a copy of the article in the New York Times in 1948 (not 1947) is available on the internet. Hope you love Eve Arden and Our Miss Brooks! (Page 46 of July 1, 1948 issue of New York Times:]

A version of footnote 29 had appeared earlier in Matthew J. Conigliaro, Andrew C. Greenberg, and Mark A. Lemley, "Foreseeability in Patent Law," 16 Berkeley Tech. L.J. 1045 (Fall 2001), a law review article related to the IEEE amicus brief in the Festo case (535 U.S. 722 (2002)). It is somewhat ironic to note the connection in view of the confusion over what knowledge the inventors of the transistor possessed at the time of the invention of the transistor. A version of footnote 29 also appears in the Stanford Law Review; Shockley and Pearson were both at Stanford at one time.


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9:56 AM  

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