Tuesday, January 31, 2017

If we can't agree on Edison's light bulb in 2017, how can we do patent policy based on conflicting factual understandings?

In "Myth of the Sole Inventor," [110 Mich. L. Rev. 709 (2012) ] Mark Lemley wrote:

Edison didn't invent the lightbulb; he found a bamboo fiber that worked better as a filament in the lightbulb developed by Sawyer and Man, who in turn built on lighting work done by others.
Edison's particular inventive contribution was the discovery of a new filament - a particular species of bamboo - that worked better than Sawyer [*723] and Man's carbonized paper because it had a higher resistance to electricity and so turned more of the power routed through the bulb into light. Higher resistance was a useful contribution, though it is worth noting that Edison's core patent, U.S. Patent No. 223,898, was filed in a rush to beat known competitors to market and included elements like a spiral filament that he himself soon abandoned.

Edison found commercial success with his bamboo filament, which lasted much longer than other carbonized vegetable materials. But bamboo didn't turn out to be the future; subsequent inventors came up with still better filaments in short order, n73 and modern incandescent lightbulbs operate on the high-resistance filament principle and use filaments that none of the inventors would have thought possible or feasible.
What Edison really did well was commercialize the invention. His lightbulbs worked better than Sawyer and Man's, not only because he used a better filament but also because he was better at manufacturing them, creating a vacuum seal that significantly extended the life of a lightbulb and made it a commercial success. And like Bell, he succeeded in the marketplace. There is no doubt that Edison added value. But his contribution to the development of the lightbulb was an incremental one in a long chain of improvements.
Edison's lightbulb was somewhat better than the ones that came before it, but his patents were sufficiently broad that they shut down any further efforts to innovate by others until the core patent expired. n194
Edison was aware of the work of others on the lightbulb, and it is plausible that his knowledge of that other work not only shaped his invention but caused him to move more quickly.
And Aylsworth discovered chemical vapor deposition in the course of trying to design a lightbulb with a noncarbon filament in an effort to avoid Edison's patents.

Sandrik [91 Tul. L. Rev. 99 (2016) ] considers the light bulb an example of simultaneous invention:

Simultaneous invention has long been a part of history. For example, we often learn only about the Italian astronomer Galileo as the one responsible for remarkably observing that there are spots on the sun, yet at least three other astronomers working independently in three different countries made this same observation in the same year. n198 Similar stories of simultaneous invention and improvements can be told about Thomas Edison (light bulb), Alexander Graham Bell (telephone), Orville and Wilbur Wright (airplane), Samuel Morse (telegraph), and Eli Whitney (cotton gin). n199

Yes, footnote 199 is to Lemley's "Myth": See Lemley, Myth of the Sole Inventor, supra note 139, at 710-11.

On the other side of the coin, Howells and Katznelson placed a paper -- A Critique of Mark Lemley’s 'The Myth of the Sole Inventor' -- on SSRN in 2011 (responding to an SSRN placement by Lemley). These authors observed:

We show that Lemley has many of his facts wrong, misstates the holdings of several court cases, and mischaracterizes the commercial realities that surrounded implementation of these technologies. His inferences and conclusions regarding patent law are therefore highly questionable.

These authors pointed to Edison's inventive aspect of "high resistance" filaments:

Edison‘s thin carbon filament of high resistance was a departure from the direction every other inventor was pursuing and had critical advantages in a practical electrical illumination system over the prior art lamps employing thicker low resistance carbon rods such as that of Sawyer & Man. First, the Edison filament‘s relatively small current draw permitted use of small diameter (less costly) powering wires and enabled networks of many lamps to be electrically connected in parallel, making the continuous operation of each lamp independent of the others. Second, a collateral advantage not immediately appreciated by Edison‘s contemporaries, was that the very low current draw by Edison‘s high-resistance filaments placed much less critical demands on the conductive interface and contact integrity of the bond between the carbon filament and the platinum leading-in wires. The practical significance of these advantages were apparently missed by many lamp developers including Sawyer & Man, even years after Edison‘s patent issued, as they persisted in futile attempts to solve problems inherent only to thick carbon incandescent rods of low resistance that drew high currents and incurred high rate of erosion.26 A few years after Edison‘s patent issued Sawyer continued to insist that the resistance of the carbon incandescent rod must be kept as low as possible and so he confined his attention to short, thick carbon rods.27
Lemley is misinformed when he asserts that “modern incandescent light bulbs operate on Sawyer and Man‗s principle‖.31 All incandescent lamps today use Edison‘s high-resistance filament principle; none use Sawyer‘s and Man‘s low resistance spring-loaded carbon rods principle; Lemley appears equally in the dark (pun intended) when he contends that Edison‘s advance was merely the first use of bamboo filaments;32 when he summarily concludes without any support that ―Edison did not invent the light bulb in any meaningful sense‖;33 and that ―Sawyer and Man invented … the incandescent light bulb‖.34

Footnote 32 of the authors observes that the word "bamboo" does not appear in Edison's fundamental '898 patent: Bamboo filaments were nowhere mentioned in Edison‘s pioneer 223,898 patent. Edison‘s first claim to bamboo filaments were made in Pat. No. 251,540, which he filed in August 6, 1880. There is no record of this latter patent having been asserted against any party. LBE had pointed this out in 2005, years before Lemley made the incorrect assertion about bamboo. In fact, at the time of filing of the application for what became the '898 patent, Edison had not even tried a bamboo filament. Separately, LBE has pointed out that there were no Edison light bulbs at the Chicago World's Fair in 1893, which was lit by Westinghouse bulbs.

Link to the critique of Mark Lemley: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2123208

**Bechtold, Buccafusco and Sprigman [91 Ind. L.J. 1251 (2016) ] view Edison's work on the light bulb as pioneering:

Before we discuss the implications of our findings for IP law, we should keep two important points in mind. First, when we think about "creativity," we tend to think about the kinds of ideas that represent substantial advancements from existing knowledge: Edison and the light bulb, Picasso and cubism, Perry and "Firework." This kind of pioneering creativity is obviously important; it is the source of Nobel prizes and MacArthur genius grants. Yet despite all of the attention that it receives, it represents a relatively small percentage of human creative endeavor. n146 At least as important are the innumerable tinkerers and tweakers whose only goal is to refine and adapt existing ideas. n147 Quantitatively, and perhaps qualitatively, this kind of creativity is responsible for at least as much scientific and artistic progress as the pioneering kind. For every Edison, Picasso, and Perry, there are dozens, hundreds, or thousands of others who have continued to develop, interpret, and repurpose their ideas. n148

Lesser [24 Tex. Intell. Prop. L.J. 245 (2016) ] wrote: So was the development of the light bulb invention or mere slogging? The Patent Office in the 1880s clearly saw it as the former.

**An intriguing question arises out of this disagreement about "what" Edison invented. If we can't agree on what it was, and the significance thereof, in 2017, about 140 years after the invention, how can we draw lessons about what patent policy should be?

**See also

More on Edison and the light bulb and ethical norms in intellectual property scholarship

But Edison had not solved the problem, and he hired Francis Upton.

Upton was a physicist who had been to school at Bowdoin and Princeton, and had done patent searches for Edison.

See for example, Randall Stross, "The Wizard of Menlo Park," Crown Publishers, 2007.


Post a Comment

<< Home