Thursday, April 03, 2008

If multiple groups are working on everything at the same time, why have patents?

On March 30, MATT RICHTEL had a story in the New York Times titled: Edison ...Wasn’t He the Guy Who Invented Everything?. On April 1, IPBiz mentioned text of Mark Lemley from this piece:

“It’s rare that you’ve got a major breakthrough that wasn’t developed by multiple people at about the same time,” said Mark Lemley, professor of intellectual property at Stanford Law School.

Separately, Lemley was also quoted about the telephone:

“It’s not that we wouldn’t have had the telephone. Not only would we have had it, we would have had it the same day,” Mr. Lemley said, adding: “The people who aren’t the winners in the historical dispute sort of fade into obscurity.”

Lemley also discussed the Wright Brothers:

The Wright Brothers held a critical patent for an early airplane, and history rewards them for it. But lots of other innovators were making significant advances in the technology, Mr. Lemley noted.

Patent Docs has a post titled War is Peace, Freedom is Slavery, Ignorance is Strength which begins

And all patent rights are theft, according to The New York Times. In but one small story on its business pages, the "newspaper of record" misstates the facts, impugns the law, and slanders one of the greatest American inventors who ever lived.

Strong stuff. Patent Docs specifically mentions Lemley:

This conclusion is supported by purported "intellectual property expert" Stanford Law School professor Mark Lemley, who states that "[i]t's rare that you've got a major breakthrough that wasn't developed by multiple people at about the same time." According to Professor Lemley, history is thus indifferent to the creativity of Bell, since we would have had the telephone "the same day" if Bell was never born.

The Times article, with the input of Lemley, can easily be viewed as a propaganda piece for patent reform advocates. If
it were true that --multiple people at about the same time-- were working on each invention, why give one of them a patent premium? This sounds especially enticing with text --Not only would we have had it, we would have had it the same day--.

A problem with Professor Lemley, who is not a registered patent attorney, is that he does not have a good grasp of history.
He certainly will not bring up Chester Carlson and xerography, the story of which does not fit his mold at all. In the past, Lemley has minimized the inventors of the transistor by suggesting that they thought it was only good for use as a hearing aid, an allegation with no basis in fact. Lemley is totally foggy on the invention of the integrated circuit, having written in the Stanford Law Review:

Mark A. Lemley, Patenting Nanotechnology, 58 Stan. L. Rev. 601, 611-612 (2005):

The integrated circuit was itself an improvement in the field of computing, a way of building transistors (an invention discussed above) [p. 612] directly into a computer chip by using charged silicon, a semiconductor. The invention opened up not just computing but also calculators, cell phones, and a host of other portable electronic devices. But because two different inventors working independently developed the integrated circuit at about the same time (1971), the patents were put into interference. Gary Boone was ultimately declared the winner, but not until 1999, twenty-eight years after the first patent application was filed.

See also


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