War is Peace, Freedom is Slavery, Ignorance is Strength

    By Kevin E. Noonan --

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 (see "Edison . . . Wasn't He the Guy Who Invented Everything?").

The occasion for this infamy is the news report from France last week of the discovery of a visual recording of a woman singing "Au Clair de la Lune" in April 1860 in Paris, made by Édouard-Léon Scott de Martinville.  This recording, if accurately dated, was made 17 years before Thomas Edison (at left) received a patent for the phonograph; it took another eleven years for Edison's technology to be used to record and play back a section of a Handel oratorio.

Also mentioned is Edwin Howard Armstrong, who "invented" FM radio and "much more besides."  Mr. Armstrong eventually committed suicide, attributed by the Times to "a patent fight with industry giants."  The article also cites the competition between Alexander Graham Bell and Elisha Gray over the telephone, who filed their patents on the same day, February 14, 1876 (as well as Antonio Meucci, who had devised an earlier version of the telephone but, according to the article, "ultimately couldn't afford to patent his invention).

The lesson from these incidents:  that

the "Aha" moments of industrial creation are preceded by critical moments far less heralded.  Behind and beside every big-name inventor are typically lots of others whom history forgot, or never knew.  And it's unusual that an innovation is created in a vacuum (including the vacuum, which itself claims several progenitors).

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 modicum of reason in the piece comes from Jack Russo (at right), an intellectual property lawyer from Silicon Valley, who cites the vagaries of commercial success, not the patent process, as the reason that some inventions lead to products and others do not.

But the Times is not interested with the messy details of history, but rather with its thesis that the patent system creates winners and losers, and that the "winners" are often times undeserving.  Edison, Bell, the Wright Brothers, Steve Jobs, and Bill Gates are all cited as having prevailed over other "now forgotten" inventors.

Besides the dishonesty of making its argument by conflating commercial success with invention, the article wrongly implies that inventions are common.  Like the late-night commercials from invention promotion companies that scream "I should have had a patent," "[g]arages and laboratories, workbenches and scribbled napkins are filled with brilliant ideas" that their creators have not had the wherewithal to pursue.

But as anyone who works with creative scientists and engineers who are also inventors well knows, it isn't that easy.  For every example of an invention (typically one about a century old) that has had competing claimants for priority, dozens of other instances of inventions having little direct antecedents and no counterclaimants are known.  These include the polymerase chain reaction, monoclonal antibodies, restriction enzymes, most pharmaceutical compounds and drugs, and most of the genes that have been patented.  [Ed.:  see "Unlikely Places Where Wired Pioneers Had Their Eureka! Moments" in the April issue of WIRED.]  The Times is wrong to think, and even more wrong to assert, that inventions are common and easy to create.

The Times is also wrong to imply that patents are used to frustrate the legitimate rights of the "true" inventor.  The U.S., unlike most countries, rewards the first inventor who invents, not who happens to file first, in those instances where the claimed invention is sufficiently similar that it satisfies the rule that one invention would be not novel or obvious over the other, and vice versa.  The proceedings used to make these determinations, called interferences, are exceedingly rare (compared with the number of granted patents), another fact not mentioned by the Times that refutes its thesis of multiple claimants to each invention.

The Times also cites a living "inventor" that the article implies was "cheated" out of the credit, and patent, for (of all things) the Internet as well as computer technology.  Dennis Allison, a lecturer in electrical engineering at Stanford (one wonders whether Mr. Allison knows Professor Lemley) claims that in the 1970's he was co-founder of a company – the People's Computer Company – that "published papers and magazines describing essential early design and technology" responsible for computers and the Internet.  Mr. Allison is not shy about his "invention:"  "[m]aybe I have a little claim – I and the people I was working with – to having invented the personal computer."  According to Mr. Allison, "[p]eople come out of the woodwork and get a patent for something fundamental that the others in the field will think is trivial, understood and expected."

This is not how it really happens, of course.  Patent examiners are aware of "published papers and magazine articles" that constitute prior art, and if they are not, then litigants certainly are:  a major part of any defendant's patent litigation strategy is to find invalidating prior art.  (Ironically, the "patent reform" that the Times has supported on its editorial page would eliminate the right of the first inventor to obtain a patent, and convert the U.S. to a "first-to-file" country.)  But rather than questioning Mr. Allison's claims, the Times is happy just to allege that it was the "entrepreneurial zeal, marketing genius [and] a capacity and desire to translate the language of geeks into the products of common people" that was the reason why Steve Jobs, Bill Gates, and "to a lesser extent" Steve Wozniak are remembered as the true inventors of the personal computer.  These attributes may be why Microsoft and Apple were commercially successful, but has little to do with inventorship of the personal computer.

In addition to misstating the facts and the law with regard to how inventions are made and patents are granted, the Times also slanders Thomas Edison, a true American technology hero and the founder of the technology that created the Twentieth Century.  Edison held 1,093 patents in the U.S. and other countries around the world, and was the creator of the incandescent lightbulb and the phonograph (notably, not a phonaurograph), as well as inventions that have been supplanted by technology, like the stock ticker, the quadruplex telegraph, and the automatic repeater for the telegraph.  Even those inventions of Edison's that support the Times thesis were ones where Edison made substantial improvements, such as making practical the incandescent lightbulb.  Before Edison, attempts to produce working incandescent lightbulbs were thwarted by unreliability, short lifetimes, and high current requirements.  In addition to his own pioneering inventions, Edison worked on improving inventions of others, such as the carbon microphone used in telephone receivers until the 1980's.  He also revolutionized the process of invention, by "inventing" in Menlo Park the prototype for the modern research lab.  Edison's achievements are legend, and none of this is negated by Monsieur de Martinville's 1860 phonaurograph.  His memory, and his achievements, deserve better treatment by the Times.

Comments

[Duke]

How surprising that the "paper of record" had a biased, unresearched article. Must be the first time that has happened.

[Sean]

You'd think the mention of "Bill Gates" as an inventor would have failed the laugh test with the editors. Bill Gates' MO has always been to steal the creative works of others, not to innovate. Microsoft is not exactly known for being respectful of inventors or of patent rights.

Will you be submitting this post as a Letter to the Editor?

[Kevin E. Noonan]

Dear Sean:

I have submitted these in the past, to no effect. I don't waste my time.

I also think it humorous that Bill Gates is touted as an inventor, but on the other hand his Pirate King style is the Times' point: it isn't the "true" inventor that makes the commercial product. I just think that he is an exception (and exceptional) example, so I didn't go down that road.

Thanks for the comment.

[David]

Kevin,

I urge you to keep submitting, as letters or perhaps op eds to the Tims and other good papers. There is a real need for such information to be published to counter the anti-patent press.

[anonymousAgent]

Kevin,
Do you think the anti-patent stance of the business press is related to advertising dollars received from CPF companies?

[Kevin E. Noonan]

Dear Anon Agent:

Perhaps in part, but I think it is enough that they are a big company that wants to do what it wants to do without having to worry about intellectual property rights of others including their reporters, contributors, etc.

Thanks for the comment.

[lizzie]

:P