Sunday, October 16, 2005

The concept of anticipation: before the USPTO and book buyers

Buyers of books, in common with patent examiners, frequently have to assess claims that something is new. The book buyer may contend with the assertions of novelty from some esteemed professor, just as the patent examiner may face declarations from professors, such as occurred in the recent Eolas re-examination. Such assertions are not always what they seem to be.

In the foreward to Tom Carhart's 2005 "Lost Triumph" [about the cavalry engagement at Gettysburg on July 3, 1863], we have Professor James M. McPherson of Princeton refer to the book as "innovative" and state "Most important, we have not previously comprehended Lee's full tactical plan for July 3 in which Stuart's cavalry was to have an essential part. No historian before Tom Carhart has pieced together the whole story from the scattered bits of evidence."

Within the book itself, in the Aftermath chapter (page 253), there is a bit of a caveat: "A few other historians have also mentioned almost in passing that Stuart may have been trying to reach and attack the Union rear. But none of these authors has presented convincing arguments or even any evidence to support these claims, nor have they researched or developed that theme in any detail whatever." The citations for "other historians" are to Wellman, Longacre and Coddington.

There is no mention of the book by Paul D. Walker, THE CAVALRY BATTLE THAT SAVED THE UNION: Custer vs. Stuart at Gettysburg (Pelican, 2002). In the language of patent law, the Walker book looks like an anticipation of the Carhart book under 35 USC 102.

However, assessments of books frequently are considered to be beyond objective verification [see below]. In examining patent applications, the Patent Office has to make tough decisions about "what is new" in the face of perhaps less-than-straightforward discussion. There is no rubber-stamp "Objectively unverifiable. Hold for Action."

From Lane v. Random House, 985 F. Supp. 141 (DDC 1995) [a case involving a lawsuit filed by Mark Lane against Random House, for an ad including a photo of Lane with the caption: "GUILTY OF MISLEADING THE AMERICAN PUBLIC."]:

It is quite simply untenable that someone espousing Lane's views would take umbrage at the rather reserved assessment that he misled the American public. (...) Under Lane's lopsided rules of engagement, he gets his choice of weaponry and tactics; Random
House must do battle unarmed and march openly in a straight line. A
conspiracy theory warrior outfitted with Lane's acerbic tongue and pen should not expect immunity from an occasional, constrained chastisement.

Of the libel issue -->

There is, however, a very real risk in sanctioning recovery for
libel under these circumstances. Debate about one of our important historical events could be stifled by threats of costly litigation. As Random House remarked in their motion for summary judgment, "To allow conspiracy theorists to haul book authors into court in an effort to punish written criticism is contrary to our tradition of arriving at truth through a robust exchange of views in
the marketplace of ideas."
Lane is certainly entitled to his beliefs; but it is not defamatory to criticize him. Books, editorials and talk shows are more appropriate forums than courts for this type of polemic.

prototype of a statement that conforms to the Milkovich-Haynes model. It is rhetorical hyperbole; it does not state actual facts about an individual; it cannot be proven true or false.

Gerald Posner's evaluation in Case Closed is that Lane
misled the public. That evaluation cannot be objectively verified without resolving thirty years of controversy surrounding the Kennedy assassination. To the extent that Posner's opinion rests on underlying facts, those facts are lodged in his and Lane's books. Events discussed in the two books have resisted objective verification for more than three decades. Readers may believe one book, the other, or neither; but there is no indication that Lane's theories have acquired the imprimatur of received wisdom.

***posted at>


Thank you for the reply. I understand your point about the Walker book.

Of the theory priority issue, the question in good scholarship is whether one acknowledges previous work, even if the previous work is considered faulty. Here, Walker advanced the theory prior to Carhart. It seems Carhart might have commented on deficiencies in Walker's theory or underlying factual support, rather than ignoring the book completely. Curiously, a similar issue has been presented in patent law, in the case of Eolas v. Microsoft, of some relevance to everyone who uses browsers. The inventor of the patent at issue (then a professor at University of California at Berkeley) was told about a different browser (Wei's Viola browser) but chose not to mention this work to the Patent Office. The case is not over. However, it may turn out that the failure to mention the prior work will be more detrimental to the inventor than was the relevance of the prior work.

Of the allegation that the cavalry engagement was underreported, one notes that details of the cavalry engagement were published in Gettysburg!, a special issue of Civil War Times Illustrated, in an article by Wilbur S. Nye. Nye's map, appearing on page 29 of Gettysburg!, is arguably better than Carhart's map on page 219. I believe the first publication of Gettysburg! was in 1963, although it has been re-published. As you know, many Civil War historians have not ignored the cavalry engagement.

Of the substantive issue of whether this was a coordinated plan in which Stuart would cause disruption by going down the Baltimore Pike while Pickett attacked, I have difficulty with Stuart's firing cannon before 12 noon, which basically assured that Stuart would be strongly opposed long before Pickett would be charging.

The artillery display between the Union forces along Cemetery Ridge and the Confederates ran roughly for one hour between roughly 1pm and 2pm. By 2pm, things were relatively quiet.

Porter Alexander wrote notes to George Pickett
at 1:25pm "If you are to advance at all you must come at once...
at 1:40pm "The 18 guns have been driven off. For God's sake come on quick...

BEFORE the artillery battle on Cemetery Ridge, the Louisiana Guard Artillery of Stuart had fired on the Low Dutch Road--Hanover Road intersection AND Pennington's horse artillerists of Custer had returned fire with three inch Ordnance rifles. McIntosh's troopers had arrived at the Low Dutch Road--Hanover Road intersection by 1pm. They were already in place when the bombardment on Cemetery Ridge had begun.

The initial fight between Stuart and Custer/Gregg was with artillery, and was won handily by the Union forces. The initial cavalry engagement was "on foot" with the dismouted 1st New Jersey and 5th Michigan (with their Spencer rifles) engaging Confederates at the Rummel farm. Rather than attacking the left flank of Gregg, Stuart decided on a cavalry charge. Gregg ordered Custer to counterattack with the 7th Michigan. There were approximately 700 men engaged in fierce hand-to-hand fighting. Things went back and forth.

The major attack of the Confederates was led by Wade Hampton and commenced at about 3:10 or 3:15pm. Union artillery played a key role in blunting the initial force. Gregg ordered Charles Town and the 1st Michigan to meet the Confederates. Custer joined Town. The fight was over in 30-45 minutes, before 4pm.

From a review by Mike Nugent at

Some of Carhart's other ideas fly directly in the face of hard evidence to the contrary. For example he proposes that Stuart's horse artillery was somehow signalling to Lee, again without any supporting evidence and in direct contradiction to the first person account of Stuart's own adjutant (who, by the way, mentions nothing about the attack from behind on the Union center, that Carhart implies was Stuart's real mission).

Despite his academic credentials, "Lost Triumph" lacks any real scholarship. Just check out the bibliography for yourself. Ooops - You can't! There is no bibliography! I cannot imagine why a historian of James McPherson's reputation would endorse this book (unless he is simply paying his due to another Princeton Phd.)

While I'm on a roll I'll mention that I posted a negative review of this book on (giving it 1 star since their system won't let you give any less). There were at least half a dozen other negative reviews as well, but mysteriously, all but a few of them have been deleted (although they did not violate any of Amazon's review policies). What's left are glowing 5-star reviews and the distinct impression that Amazon is only interested in selling books, integrity be damned.


Of the difficulty with determining whether or not something is new, in contexts OTHER THAN patents, note episode # 512 (New York Crab Shacks) of Colameco's Food Show wherein Mike Colameco acknowledges the impossibility of "who was the first" to invent the crab shack concept. The consuming public is far more interested in "who is doing it well" IN THE PRESENT than who thought of it first. The Carhart incident is the same. This is how the "take it and make it your own" concept of the Harvard Business Review takes hold.


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