Monday, January 23, 2017

More on "myths" surrounding simultaneous independent invention

Further to the IPBiz post
The theme of independent invention, and whether the same thing was invented
, which in part discussed Mark Lemley's
Myth of the Sole Inventor, a previous post on IPBiz had noted:

Separately, some commentary from Lisa Larrimore Ouellette related to Lemley's Myth of the Sole Inventor, and "review" of law review articles:

Lemley isn't making any claims about the scope of the patents these inventors received, so whether "bamboo" appears in Edison's patent is irrelevant. Rather, his claim is a historical one: that while society thinks of Edison as stepping into vacuum and independently creating this pioneering invention, he was really building on others' ideas much more than the canonical myth suggests. I don't think Lemley did original research on this - he relied on peer-reviewed articles like this one - and it is possible that the scholars he relies on got the history wrong. But I don't think your post on ezinearticles about whether Edison was a patent troll really addresses this historical claim.

Relevant text in Lemley's article [110 Mich. L.R. 709 (2012) ] includes:

Edison's particular inventive contribution was the discovery of a new filament - a particular species of bamboo -
that worked better than Sawyer [p. 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.

As to "bamboo," Lemley did not rely on any "peer-reviewed articles" in his law review. Edison's inventive contribution was the concept of a high resistance filament, recited in US 223,898, and was not a bamboo filament, not recited in US '898 or even known to Edison at the time of filing the application for US '898. Lemley presented no evidence that others were working on this inventive contribution prior to, or simultaneously, with Edison or Edison's people. Edison did NOT find commercial success with the bamboo filament.

The idea that Edison "invented" the light bulb had been questioned long before Lemley's 2012 law review article. For example, note the 1992 book "They All Laughed" by Ira Flatlow. [See
More on Edison and the light bulb and ethical norms in intellectual property scholarship

Within "Myth," Lemley also discusses the corset as an example of multiple independent invention, wherein he states

The corset, itself the subject of one of the best-known Supreme Court patent cases, Egbert v. Lippmann, 104 U.S. 333 (1881), was itself the result of independent invention by multiple parties and a web of patent litigation. See Kara W. Swanson, Getting a Grip on the Corset: Gender, Sexuality and Patent Law, 23 Yale J.L. & Feminism 57 (2011).

Samuel Barnes made the invention in 1855. Eight years later, in 1863, Samuel Barnes and Frances (who became his wife in 1863) showed the invention to his friend Joseph Sturgis; and in March 1866 Samuel applied for a patent. Samuel died a month after the patent issued in July 1866. By 1870, Frances, remarried and with name Egbert, sued others with similar corset designs, for patent infringement. The duration 1855 to 1870 hardly qualifies as an example of simultaneous independent invention.

Details taken from .

**As footnotes

Ouellette's blog discussed the Swanson article at

At page 743 of Myth, Lemley states --The transistor was originally conceived as primarily useful in
hearing aids. n201 -- with the reference tracking to a "news release" [ News Release, Stanford University, Humans Not Great at Assessing New Technology, Economist Says (June 1, 1994), available at ], which is not a peer-reviewed article.

The "news release" states in pertinent part: The invention of the transistor was not front-page news but a tiny item in a weekly column on "News of Radio" buried inside a 1947 edition of The New York Times. The device, the article predicted, "might be used to develop be tter hearing aids for the deaf."

As noted many times (including in 2008, four years before Myth), there was no article in the New York Times in 1947 about the transistor. The reference is non-existent.

The release also states: Ten to 15 orders was all IBM envisioned for the computer in 1949. Even by 1956, a Harvard physicist involved in developing the machine for solving differential equations said he would be surprised if the billing departments o f department stores could ever make use of such a number cruncher. The fact that early machines relied on 18,000 vacuum tubes, and that the semiconductor had yet to be invented, probably limited everyone's imagination, Rosenberg said.

Myth also notes: -- William Shockley's invention of the transistor at Bell Labs -- writing out Bardeen and Brattain, who
disclosed the point contact transistor before Shockley unveiled the planar transistor (Shockley was their group leader at Bell Labs).


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