Thursday, August 07, 2008

The origins of "truly innovative inventions"?

Of two comments to the IPBiz post titled PREVENTING THE ISSUANCE OF "BAD" PATENTS , IPBiz notes that the words truly innovative inventions appeared in a law review article titled Pioneers in Technology: A Proposed System for Classifying and Rewarding Extraordinary Inventions in 45 Ariz. L. Rev. 445
(2003)[author Ted Baker] in the text:

Looking back at the history of technology, pioneer inventions have always stood out from the rest. n76 Examples of great pioneer inventions include the sewing machine, the telephone, and the transistor. Vast economic empires have been built upon a few truly innovative inventions. With this potential in mind, the implementation of a system that may hasten the arrival of the next technical revolution is a worthwhile endeavor.

Mr. Baker, unlike numerous law professors in the intellectual property area, understood that not all inventions are innovative, and certainly that invention and innovation are not synonyms. The patent system is about invention.

Such point was misunderstood by CRISTIN SCHMITZ in writing in INSIDE COUNSEL:

Nine days after the Supreme Court slammed the Federal Circuit's track record of upholding too many patents on inventions that aren't truly innovative, the Court of Appeals dutifully applied a more "flexible and expansive" approach to evaluating obviousness, as the High Court mandated in its April 30 landmark decision in KSR v. Teleflex.

Of the idea of having an "innovative invention," note text by Francis X. Clines and Bernard Weinraub in the New York Times from October 14, 1981:

A kind word about the Moog Synthesizer, rating it right up there with the zipper and the ice cream cone, was inserted in the Congressional Record the other day by Representative Jack F. Kemp of upstate New York, a clear partisan, since the electronic Moog music makers are manufactured near Buffalo. Mr. Kemp contended that the Moog was ''easily the most popular'' item in a special Eureka Exhibit of small businesses's ''12 most innovative inventions of the past 200 years,'' an exhibit now wending its way across America and heading for permanent display at the Smithsonian Institution. Others who have seen the exhibit say the five-foot-long working zipper with wooden teeth rivals the Moog. Beyond the ice cream cone, the rest of the Eureka inventions, selected by the Association of Science Technology Centers of Washington, are the bifocal, the steam engine lubricant, the safety razor, the surgical heart valve, the telephone, xerography, the phonograph, light polarizing film that led to instant photography, and Bakelite, the first commercial plastic.

One presumes that the "12 most innovative inventions" were "truly innovative inventions."

Returning to the "plagiarism" issue raised by the commenter, it's a tough sell on three words that are expressing a known generic concept (see for example my article in the December 2006 issue of JPTOS, Lawrence B. Ebert, On Patent Quality and Patent Reform, 88 J. Pat. & Trademark Off. Soc'y 1068, 1074-75 (2006))

Note text from the Narell case, 872 F.2d 907 (CA9 1989):

Most of the phrases Freeman copied from Narell are commonly-used expressions, such as describing a group of family relationships as a "staggering network," a muddy street as a "cow path" or a river bank populated by sluggish, broad-headed loricates as "crawling with alligators." Although one may conclude that Freeman appropriated Narell's historical research, the appropriation of expressive elements is minimal. The more numerous paraphrasings cited by Narell cannot be said to take the expressive elements of her work; instead, unprotected factual details are taken, although in some cases commonly-used expressions are echoed, such as "mosquitos ravished his flesh" versus "mosquitos feasted on his flesh." Cf. F. Zappa & the Mothers of Invention, Weasels Ripped My Flesh (1970) (sound recording title) (example of original and hence protected phrase). Freeman's borrowings did not take a "sequence of creative expression," as opposed to an ordinary phrase, and therefore were not infringing. See Salinger, 811 F.2d at 98.

In this example, the mothers of invention were "inventors."


Blogger Step Back said...

Thanks Lawrence.
Good analysis.
I'm more interested in the subliminal messages sent by the phrase "truly innovative".

The phraseology, "12 most innovative inventions" implicitly admits to there having been an inventive step and just addresses the relative leap taken by the step. Which were the 12 longest leaps?

On the other hand, "truly" implicitly raises its antonym, falsely, and thus subliminally questions whether there is any inventive step at all.

No wonder the anti-patent coalition likes this phraseology. It's truly deep FUD flinging.

BTW, have now traced "truly innovative invention" back to 1997 here

1:37 PM  

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