Saturday, March 19, 2016

Lea Shaver said: "The central mistake made by Howells and Katznelson is to treat judicial opinions and patent claims as reliable evidence of who really did what."

IPBiz notes the humor within Lea Shaver's statement in 69 Wash & Lee L. Rev. 1891, 1922:

The central mistake made by Howells and Katznelson is to treat judicial opinions and patent claims as reliable evidence of who really did what.(footnote 115)

Footnote 115 states --See Howells & Katznelson, supra note 112, at 4-7 (describing the reasons that Edison's patent for the incandescent light was superior to his competitors). --

Footnote 112 states --See John Howells & Ron D. Katznelson, A Critique of Mark Lemley's "A Myth of the Sole Inventor" 4-5 (Sept. 15, 2011) (unpublished manuscript), available at (on file with author). --

One might ask "why" a person should NOT -- treat judicial opinions and patent claims as reliable evidence of who really did what --

The body of Shaver's law review mentions the word "resistance" only once:

As companies in the field of incandescent light technology negotiated cross- licensing deals and takeovers, patents on many aspects of the electrical lighting system played important roles. n144 But in U.S. litigation one of Edison's many patents on the light bulb would ultimately play the most important role. Issued on January 27, 1880, U.S. Patent No. 223,898 ('898 Patent) recognized Thomas Alva Edison's "improvement in electric lamps," including a claim on "[a]n electric lamp for giving light by incandescence, consisting of a filament of carbon of high resistance, made as described, and secured to metallic wires, as set forth." n145 The '898 Patent was just one among dozens of patents that Edison sought on the light bulb technology, and it was not initially clear that it would prove so central. n146 Competitors in the industry strongly doubted the validity of its claims. n147 That changed crucially when a Pennsylvania court, in the course of invalidating a rival patent held by Sawyer and Man, and in dicta, gave Edison's '898 Patent a new interpretation so broad as to render virtually every incandescent light bulb infringing. n148 Subsequent litigation produced a stunning consolidation of the previously very competitive American electric industry. n149 After the Supreme [p. 1930] Court's 1895 decision, all U.S. producers either purchased licenses from General Electric or merged with it. n150

In the law review, Shaver does NOT state, imply, or suggest that Edison's competitors came up with, or recognized, the value of a high resistance light bulb filament. Were other workers talking about "light bulbs"? Yes. Did they make the significant step forward to make light bulbs an innovation? No.

As to the relationship of this to Lemley's "Myth of the Sole Inventor," one first notes that Edison was not in any way a "sole inventor" in 1878 or 1880. Second, as to "who" thinks Edison was a "sole" inventor, other than certain law professors, one suspects myths perpetrated in newspapers and movies and other mass media, all of which are generally considered NOT to provide -- reliable evidence of who really did what -- One need only look to a sarcastic comment
in the "Silence of the Slams" episode of GRIMM on March 18, 2016: "And the newspapers say so, so it must be true."

As to the value of experts, one need go no further than experts opining on Michigan State's future in the NCAA basketball tournament of 2016:

Kansas is America's favorite, but experts like Michigan State to win NCAA tournament

**Some footnotes from Shaver law review article:

n146 See Bazerman, supra note 81, at 86-89 (explaining that, despite the large number of Edison patents, only the '898 Patent was deemed "crucial").

n147 See Passer, The Electrical Manufacturers, supra note 42, at 153- 54.

n148 See Consol. Elec. Light Co. v. McKeesport Light Co., 40 F. 21 (C.C.W.D. Pa. 1889), aff'd, 159 U.S. 465 (1895) (invalidating the Sawyer-Man Patent); Passer, The Electrical Manufacturers, supra note 42, at 155 ("The meaning of the decision seemed to be that the Edison patent could be the basis for an absolute monopoly of incandescent-lamp manufacture in the United States."); see also Bazerman, supra note 81, at 250-57 (offering an insightful account of the McKeesport trial).

**Some links of interest
[As to the machine gun, but NOT the light, Maxim was a sole inventor.]

***In passing, note the paper -- Chemistry and palynology of carbon seams and associated rocks from the Witwatersrand goldfields, South Africa -- L. B. Ebert, et al., Ore Geology Reviews, Volume 5, pages 423-444

***A relevant point, taken from

The basic filament patent granted to Thomas Edison that was at issue in much litigation, was No 223,898, dated Jan 27, 1880. Ordinarily such a patent would have been in effect for 17 years but a ruling existed which stated that a patent would expire at an earlier time if a foreign patent on the same invention were to expire before the normal period of 17 years passed. As it happened, a similar patent was granted in Canada on Nov 19, 1879; that patent expired Nov 19, 1894. The Edison U.S. patent No 223,898 therefore expired on that same date, Nov 19, 1894.

One notes that the Westinghouse "stopper" bulbs, which lit the Columbian Exhibition in Chicago in 1893, were used while Edison's
'898 patent was in force.

The frognet post also observes:

It was after the formation of the General Electric Company in 1892, when the Thomson-Houston Electric Company joined forces with the Edison General Electric Company, that courtroom activity increased significantly. For example, legal proceedings had been initiated against the Mather, Perkins, Sunbeam, Germania, Boston Incandescent Lamp and Sawyer-Man companies.

Thomas Edison had little activity with General Electric, having been "patent-jacked" by J. P. Morgan. And, the significant
patent litigation activity was at the end of life of the '898 patent.


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