But in the case before us, the knob is not new, nor the metallic shank and spindle, nor the dovetail form of the cavity in the knob, nor the means by which the metallic shank is securely fastened therein. All these were well known, and in common use, and the only thing new is the substitution of a knob of a different material from that heretofore used in connection with this arrangement.

Every invention in the history of the world is a combination of known elements/steps.  The reason for this is Conservation of Matter and Energy – you cannot create something from nothing.  This idea is implicit in 35 USC 112, which requires the inventor explain their invention so that one skilled in the art can practice the invention.

Back to Hotchkiss, the ruling states the well known idea that for an invention to be patentable, it must be more than just the work of a skillful mechanic.  Today this is stated as the invention must have taken more than just the work of “one skilled in the art.”  For a very interesting discussion of the history of the nonobviousness requirement see Novelty and the Hotchkiss Standard.

Note that Justice Woodberry ‘s dissent in the Hotchkiss case argued that the statute only required the invention be new and did not say anything about the work of a skillful mechanic.  Was there any justification in the statute for the Supreme Court’s ruling in Hotchkiss?  The 1790 Patent Act stated that the Patent Board was only to grant a patent if the invention was “sufficiently useful and important.”  The patent statute of 1836 also contained a clause that said the Patent Office could deny a patent to an invention the Commissioner deemed to be “insufficiently useful and important.” However, it appears that this part of the statute was almost never invoked.  Either way, the statute did not give this power to the Supreme Court or any other Court.  As a result, Hotchkiss was a clear case of judicial activism.  The Court just made up a requirement that was not in the statute and could not be considered just an interpretation of the law.

Why the Non-obviousness Standard is Unworkable

Words have meaning.  Let’s examine the meaning of the words NOVEL and OBVIOUS in the context of statute.  The key portion of the non-obviousness statute states:

A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.  (underlining added)

Based on the wording and the fact that section 103 was added later than the novelty requirement, logically 103 is intended to be an additional requirement above the novelty requirement.  According to Dictionary.com, novelty means “of a new kind; different from anything seen or known before: a novel idea.”  The non-obviousness requirement logically requires something more than an invention be novel.  According to Dictionary.com, obvious means, “easily seen, recognized, or understood; open to view or knowledge; evident.”  It is axiomatic to patent law that whether an invention is non-obvious, has to be determined at the time the invention was made or in other words before the invention was known.  How can an invention that has not been created, be easily seen, recognized, or understood; open to view or knowledge or evident (obvious)?  Clearly, an invention that has not been made cannot be open to view and how can you have knowledge of something that does not yet exist?  Evident means, according to Dictionary.com, “plain or clear to the sight or understanding.”  Is it any wonder that non-patent attorney judges cannot make sense of Patent Law?  The law is contradictory on its face.

Is Section 103 Constitutional?

The Constitution states at Article I, Section 8, Clause 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

The drafters of the Constitution only defined ONE RIGHT in the Constitution and that was the Right of inventors and authors.  When the founders talked about ‘the right’ they meant a Natural Right.  A natural right is a right that exists, whether government exists or not – of course enforcing that right is another story, which is why governments are instituted among men, see Declaration of Independence.

If the Constitution says that inventors have a right in their discoveries, the first question should be: what is an invention?  Some people have suggested that an ‘invention’ can be anything that Congress decides it is.  But this is clearly nonsense.  If that were the case, then the Constitution would be meaningless.  This is not ‘Alice in Wonderland,’ words have meaning.  So what is an invention?  Inventions belong to the genus or class of human creations.  However, not all human creations are inventions.  For instance, a painting or a musical score is a human creation, but it is not an invention.  Reproduction or making another copy of something is not invention and not a creation in the sense used herein.

We need to differentiate inventions from other human creations.  Inventions belong to the species of human creations that have an objective result.  What do I mean by an objective result?  Examples will probably be the best way to examine this.  A painting is a human creation, but it is not an invention.  A painting has a subjective result – namely the viewer’s reaction.  Logically, all human creations either have an objective or a subjective result or goal, there is no other choice.  This point can appear confusing with respect to mathematics.  Does a Fourier Transform have an objective result?  For patent attorneys, the requirement is commonly referred to as the invention must be ‘useful’ under 101.  The synthesis of a new chemical is not patentable if the inventor cannot describe a practical use (industrial applicability) for the chemical.  The same is true of mathematical formulas.  The definition of an invention requires that it be useful or have, what I call, an objective result, which explains the basis of 101.  A mathematical formula by itself is not useful or does not have an objective result.

An invention is a human creation, which means that a human was the creator of the invention.  That person is called the inventor.  Because we are discussing creation, not reproduction, to be the inventor you have to be first.  That is where the Novelty (102) requirement comes from.  There is nothing in the definition of Invention that implies any sort of non-obviousness requirement or ‘more than a skilled mechanic.’  Neither the Supreme Court nor Congress have the power to ignore the Constitution, which requires that The Exclusive Rights of inventors be secured.  Therefore, 35 USC 103 is unconstitutional.

Conclusion

The origin of Section 103 was a Supreme Court case that failed to follow the law.  The more than a skilled mechanic grew into the nonsense of requiring a flash of genius.  The codification of this bit of judicial activism results in the non-obviousness requirement for patents.  This terminology was double speak: requiring something that was unknown to be apparent.  The definition of invention does not include any sort of non-obviousness requirement and the Constitution requires Congress and the Courts to uphold the exclusive rights of inventors.  As a result, section 103 is unconstitutional.

Words have meanings and judicial activism has consequences.  The non-obviousness standard has inhibited the creation and introduction of new technologies and therefore made us all poorer.  As just one example of this see Robert Kerns, inventor of the intermittent windshield wiper.  Because of the non-obviousness standard, automobile manufacturers were able to steal his invention and drag out court cases for years.  Robert Kerns had a PhD. in electrical engineering and was an intelligence officer in the armed forces as a teenager.  Instead of inventing or teaching, Dr. Kearns spent his life litigating against an auto industry that felt no shame in stealing his invention.  Another tragic example is that of Edwin Armstrong, inventor of the superheterodyne receiver and FM.  RCA’s theft of FM radio destroyed this genius to the determent of all mankind.

But the ignorance does not stop with this statement, the article goes on to state that:

 “The patent explosion began in the mid-1990s, when the U.S. Court of Appeals for the Federal Circuit ended the requirement that patents specifically define inventions.”

First of all the U.S. Court of Appeals for the Federal Circuit never did any such thing.  The requirement for specifically defining one’s invention in a patent has not changed since at least the 1952 patent act.  Second there has been no explosion in the number of issued patents in the US to US based inventors.  The numbers of patent issue to US based inventors has been flat for at least a decade, see chart below

and by every objective measure (GDP/patent, R&D/Patent, Population/patent) the quality of patents is increasing – see Patent Quality Nonsense.

The article then quotes a forthcoming article from the CATO Institute that it is impossible for a software company to determine if they are infringing an existing patent.

 They estimate that there are 600,000 firms producing patent-eligible software and 40,000 software patents granted each year. They say this comes to “24 billion new patent-firm pairs each year that could produce accidental infringement.

Since the total number of issued patents since 1836 is just over eight million this is complete nonsense and academic fraud.  The exaggeration of the authors from the CATO Institute and Yale Law School is criminal.  Both of the authors of this study should be fired and never given another academic job.  But so low is the state of our academic research no one will question their outrageous assertions.

Companies do market research on competitors in the software space and clearly do not feel overwhelmed by the “24 billion” new pairs of potential products.  Most software companies I know are very good at narrowing down their market research and the same applies to patents.  Companies spend huge sums on market research, but complain about spending a little money to determine if they are violating someone’s property rights.  In fact, most companies never do check to see if their products are likely to infringe a patent.  This is like starting construction on a building without checking that you have clear title to the land.  We would not tolerate or glorify the stupidity in the case of real property, so why should we do so in the case of patents?

Finally, to the point that Morse could have patented the Internet this again shows the author’s ignorance of patent law.  Patents cover an invention.  Anything that incorporates that invention infringes the patent.  For instance, if I have a patent on a microprocessor and you incorporate a microprocessor into your cell phone you infringe my patent.  I am not asserting that I invented the cell phone, I am asserting that I invented the microprocessor and you are infringing my patent by incorporating it into your cell phone.  According the Supreme Court’s decision Morse did invent a system for repeating electromagnetic signals so they could be sent over long distances.  Repeaters are still used to amplify electronic signals, including signals sent over the Internet.  So if Morse’s patent were still valid (they expired around 150 years ago), then yes the Internet would likely have infringed his patent – according to the Supreme Court’s characterization.  This would not mean that Morse was asserting he invented the Internet.  Note that the inventor of the transistor, the inventors of error correction codes, the inventor of microprocessors, the inventor of electronic amplifier circuits, and many, many more would be in the same hypothetical situation – but of course this is meaningless since their patents expired years ago.  All this proves is that all inventions build on earlier inventions and the author of this article’s ignorance of how patents work, knows no bounds.

Could Morse Have Patented the Web? Under today’s loose standards, the telegraph inventor might own the Internet” , dated March 26, 2012, the Wall Street Journal

 The steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. P. 4

And adds:

 The three steps (of the claim) as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.  P. 10

Logically, the Supreme Court is saying that known steps or elements in combination with a law of nature is not patent eligible.  First every invention ever made involves steps (elements) that were known individually before the invention, and laws of nature.  You cannot create something out of nothing.  Section 112 means that you have to be able to describe your invention in terms known to those skilled in the art.  Thus the Supreme Court’s holding means that any invention that satisfies 112 is unpatentable under 101.  The only inventions that will satisfy 101 are those that violate laws of nature or involve creating something out of nothing – or magic.

Get out your cauldrons-

For the lawyers in the audience this case reintroduces the point of novelty test nonsense.

I have written extensively about this case in the following posts and will not reiterate my earlier points.

Justice Breyer: Patent Ignorance 

Mayo v. Prometheus: An Update

Mayo v. Prometheus – Supreme Court Grants Cert (Again) 

But for those not familiar with the case here is a little background

The patents (6,355,623 and 6,680,302) claim methods for determining the optimal dosage of thiopurine drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases. Thus, the questions in this case are whether determining optimal dosages of thiopurine drugs to treat autoimmune diseases exists in nature separate from man and whether this solves an objective problem? Clearly, determining optimal dosages does not exist in nature for any drug and the patent solves the objective problem of determining the optimal dosages of thiopurine drugs for autoimmune diseases.

Ayn Rand discussed this exact issue in Atlas Shrugged.  James Taggart is discussing Rearden Metal with his wife:

”…’he didn’t invent smelting and chemistry and air compression.  He couldn’t have invented HIS metal but for thousands and thousands of other people. HIS Metal! Why does he think it’s his? Why does he think it’s his invention?  Everybody uses the work of everybody else. Nobody ever invents anything.’ (Jim Taggart)  She(Jim Taggart’s Wife) said, puzzled, ‘But the iron ore and all those other things were there all the time. Why didn’t anybody else make that Metal, but Mr. Rearden did?’”  Kindle Location 5796-5802

These exact questions could be asked of the Supreme Court.  All these other steps were available to other people, but no one else discovered how to use thiopurine to safely treat Crohn’s disease.  In fact, the Supreme Court admits as much.

 . . . and it has been difficult for doctors to determine whether for a particular patient a given dose is too high, risking harmful side effects, or too low, and so likely ineffective.  p. 4

The reality is that this Supreme Court is anti-patent and anti-property rights.  The opinion states patents are monopolies in three spots and mentions rent seeking in one spot, but it does not mention that the Constitution clearly states that inventors have a RIGHT to their invention and it does not state that patents are property rights.  This case is just another example that the anti-property rights and anti-Natural Rights crowd is in control of our government.  This case will have long term negative ramifications for the US economy.  The US is losing its technological advantage because it believes that inventors should work for free.  Note that Singapore is taking another path and trying to figure out how to strengthen their patent laws (see Singapore and the US Divergent Patent Policies)

This lack of understanding of property rights causes multiple errors in both the paper and CATO’s and Reason’s analysis of this issue.  For instance, once you understand that patents are property rights you understand the purchase of patents by investors is not different that the purchase of a building from the builder.  The profits by the subsequent purchaser of the building are not “DEAD WEIGHT” costs and neither would a lawsuit by the purchaser to demand rent for someone squatting in their building.  When the (paying) occupancy rate for buildings is high this encourages the building of new structures.  The same is true for patents – when owners of patents receive good returns on their assets then inventors create more of these assets.

Unfortunately, the CATO Institute has become hopelessly lost on the issue of property rights.  They have adopted the Utilitarian point of view that property rights are just an efficient way of allocating scarce resources.  Professor Adam Mossoff has commented on this nonsense.  Mossoff states that Jeremy Bentham’s ideas are at the root of Libertarian’s attack on IP.  Bentham basic philosophy was Utilitarianism – the greatest good for the greatest number. Bentham stated that the reason for property rights was because of scarcity and conflict resolution not natural rights.  Mossoff then points out that the followers of Bentham argue that there is no conflict between people using the same ideas like there is with land.  Ideas can be copied and used endlessly.  This argument fails for because there is a conflict when a physical embodiment of the idea (invention) is created. The copier has clearly limited the return for the inventor and patent law only prohibits the physical embodiment.  I discuss the fallacies behind the scarcity theory of property at my post Scarcity: Does it Prove Intellectual Property is Unjustified and Scarcity -2 and Scarcity -3.  Mossoff points out that this is the philosophical point of view used by the Cato Institute and the Von Mises Institute to attack patents (IP).

Utilitarianism’s “greatest good for the greatest number” always leads to totalitarianism.  It also never leads to the purported goal.  The reason for this is that utilitarianism is merely a justification for short term actions.  Once something has been produced, it always looks like the greatest good is to redistribute the creation.  However, this is clearly only true in the short term.  In the long term it is clear that this always destroys the economy.  This is the theory behind the USSR, North Korea, and all socialist states.  As Ayn Rand pointed out you only need open your eyes to see that these countries do not produce the greatest good for the greatest number.  This is because stealing the product of one’s mind (mental labor is labor) is no different than banning free speech.  It stifles the mind, which source of all economic progress (values).

The CATO Institute’s article is under the header “Regulation.”  This again demonstrates that the CATO Institute does not know the difference between property rights and regulations.  Here are three easy questions for Libertarians, Socialists, and Economists to determine if a right is a monopoly (rent seeking) or a property right.

1) Does the right arise because the person created something?

2) If someone else was the creator would they have received the right in the creation?

3) Is the right freely alienable?

Patents meet all the tests of property rights.  They are not a regulation.  Enforcing property rights does not result in dead weight costs.

Another great article on this issue can be found at Gametimeip entitled Myopic Patent Cynicism.

Wherever this moral goal has been tried it has resulted in human suffering, misery, disease, famine, death, and torture.  North Korea is the country that most encapsulates this moral goal today and it is a living hell.  The Soviet Union and Communist China also tried to implement this moral imperative and it resulted in the largest genocides in the 20^th century, resulting in the death of over 100 million people.  Attempting to following this moral code also resulted in the Dark Ages under the direction of the Catholic Church.  It is also why the Christian right is often ineffective at countering socialists arguments, since they accept the same moral goal.  These bad outcomes do not occur because the wrong people are in charge, they occur because slavery is immoral and this is the logical result of following an immoral goal.

The opposite moral imperative to ‘I am my brother’s keeper’ can be found in our Declaration of Independence – namely the RIGHT to Pursue One’s Own Happiness.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

This right to pursue your own happiness is the exact opposite of slavery.  It states that no one has the right to enslave you (or anyone) morally or legally.  Wherever this moral ideal has been tried it has always resulted in human happiness, abundance, technological innovation, increasing life spans, increase health care, and yes fewer environmental problems.  There is no contradiction between what is moral and economic abundance and human happiness.  This has not occurred because the right people have been in charge, it is the result of pursuing that which moral, namely FREEDOM.

Why should a blog directed to patents and inventions care about such a subject?  Because this idea of ‘I am my brother’s keeper’ has been raised in the cases Association of Molecular Pathology v. USPTO (which was original called ACLU v. Myriad) and in Mayo v. Prometheus and it is used by opponents of patents.  They all argue that the inventor has no right to his invention and the only reason we allow them to invent is to serve their fellow man.  In the ACLU case this argument was re-crafted as property rights should not stand in the way of science.

Slavery is immoral and a moral goal of slavery, even if it is suppose to be voluntary, is immoral.  Those who push the moral goal of slavery are advocating human misery, death, famine, and genocide.

MERRY CHRISTMAS

The Popes have long been the patrons and preservers of art, just as our new, practical Republic is the encourager and upholder of mechanics.  In their Vatican is stored up all that is curious and beautiful in art; in our Patent Office is hoarded all that is curious or useful in mechanics.  When a man invents a new style of horse-collar or discovers a new and superior method of telegraphing, our government issues a patent to him that is worth a fortune; when a man digs up an ancient statue in the Campagna, the Pope gives him a fortune in gold coin.  We can make something of a guess at a man’s character by the style of nose he carries on his face.  The Vatican and the Patent Office are governmental noses, and they bear a deal of character about them. (Emphasis added)

In the last fifteen years we have extended the copyright term to be almost infinite, we have criminalize willful copyright infringement and we have had numerous government programs to protect intellectual property, which always means copyrights and perhaps trademarks, but not patents.  Alternatively, we have spent the last fifteen years stealing the fees inventors pay to the patent office, we have forced the publication of U.S. inventors’ patent applications for the world to see and steal, we have vilified the actions of our greatest inventors such as Edison, calling them trolls and some have even suggested that Edison really made incremental improvements on other people’s inventions, and called inventor’s monopolists.  Twain would be horrified by our capitulation to Europe.  It says something about our character that we are following in the Popes footsteps.

There have been several books suggesting that you can patent human genes or parts of humans.  The latest is entitled Deadly Monopolies, which appears to be a rehash of David Koepsell’s Who Owns You?: The Corporate Gold-Rush to Patent Your Genes.  The first person to raise this issue was Michael Crichton.  None of these people are patent attorneys and they all misinterpret the claims of patents to be broader than they are.  We know Ms. Washington does not understand patents, because she mislabels them as a monopoly in the title of her book.  Ms. Washington also does not understand property rights.  Patent are property rights and you obtain title to your invention because you created something.  Monopolies are granted based on political decisions.

In Washington’s blog, she suggests that Myriad Genetics has patented a part of John Moore’s body.  This is clearly incorrect on its face.  The patent is for an isolated form of a gene that is an indicator of breast cancer.  The critics of gene patents have made this outrageous accusation that a patent covers a part of your body.  With the implication that just by being alive you are violating their patent.  This is complete nonsense, but great propaganda.  It appears that Ms. Washington really adds nothing to the discussion, but is just rehashing points that have already been made and proven wrong.

The Court of Appeals for the Federal Circuit when ruling on the Myriad case provided the following insights “Isolation of a DNA sequence is more than separating out impurities: the isolated DNA is a distinct molecule with different physical characteristics than the naturally occurring polymer containing the corresponding sequence in nature.” (P. 11 Slip Opinion – Judge Moore) He further states, “I decline to extend the laws of nature exception to reach entirely manmade sequences of isolated DNA, even if those sequences are inspired by a natural template.” P. 14 Moore.  He further explains the difference between this case and purified vanadium or uranium as, “Given the chemical differences highlighted by Judge Lourie’s opinion and discussed supra, the mere fact that the larger chromosomal polymer includes the same sequence of nucleotides as the smaller isolated DNA is not enough to make it per se a law of nature and remove it from the scope of patentable subject matter.  The actual molecules claimed in this case are therefore not squarely analogous to unpatentable minerals, created by nature without the assistance of man.” P. 15 Moore.  Harriet Washington, seems to have ignored all this information or simple does not understand the science and certainly does not understand the patent law.  I attempted to find out about Washington’s background to determine if she had a scientific background.  The only information I could find was that she had been a medical ethicist at Harvard, but nothing about her education.

While I have not read the book, Deadly Monopolies: The Shocking Corporate Takeover of Life Itself–And the Consequences for Your Health and Our Medical Future, by Harriet A. Washington, all indications are that the author does not understand the science or the law involved in this topic.  Her statements on her blog that gene patents spur profits not cures is example of the shallowness of her research.  See David E. Adelman & Kathryn L. DeAngelis, Patent Metrics: The Mismeasure of Innovation in the Biotech Patent Debate, 85 Tex. L. Rev. 1677, 1681 (2007), as clearly showing biotech patents have resulted in increase innovation.  Washington’s book is not about science, the law, or the truth, it is a propaganda attack on patents, property rights, and the pharmaceutical industry.

In the abstract of the paper, they conclude:

Our results have important implications for public policy. One is that patent laws and their enforcement matter for economic growth. However, our findings also suggest that patent rights vary by country and industry. We show that patent rights have a smaller impact on economic growth in poorer countries and in less patent-intensive industries. Since patent intensive industries account for a smaller share of the economies of the poorer countries, our results imply that the welfare gain in terms of economic growth for these countries is more likely to be outweighed by the welfare loss due to lower end-usage, and hence, tip the balance towards weaker rights being socially optimal.  Abstract

The paper’s conclusion with respect to “poorer” countries being better off with a weak patent system is pure conjecture and was not part of their study.  The reason that poor countries do not see a big boost by having stronger patent laws is: 1) poor countries are technologically backward and can advance economically by copying (purchasing) existing non-patented technologies, and 2) poor countries have poor property rights systems diminishing the effectiveness of their patent systems.  A poor country is poor because of its low level of technology.  Just raising a poor countries level of technology to the same level as the United States twenty years ago would result in huge economic gains.  The reason poor countries have a lower level of technology is because they have weak property right systems that results in under investment in technology (Capital Spending).  The paper hints at this point:

Our patent rights index depended on an assumption that enforcement of patent rights was correlated with enforcement of property rights in general, as measured by the Fraser index (The Fraser Institute does a study of economic freedom for all countries once a year). P. 10

In Figure 1, we plotted the Fraser index against the GP index (Patent Strength) scaled up by a factor of two.  The two indices were highly correlated. P. 10

In other words, there is a strong correlation between the strength of property rights in general with the strength of a patent system in a country. This should not be surprising since patents are property rights in inventions.  If you did a study of arbitrary government grants or monopolies versus the strength of patents in countries, you would find they are highly uncorrelated.  Despite the nonsense that suggests that patents are monopolies.

Another interesting point in the paper:

Among 15 Western countries over several centuries, enactment of patent law was associated with higher rates of scientific discoveries, inventions, and innovations.

Hu , Albert G.Z. and Png , I.P.L., Patent Rights and Economic Growth: Evidence from Cross-Country Panels of Manufacturing Industries, August, 2010.

Howells and Katznelson explain, “that Lemley has most of his facts wrong, misstates the holdings of several court cases, and misunderstands the commercial realities that surrounded implementation of these technologies.”  They show the Lemley does not clearly define each invention.  As the paper explains “under patent law‘s formal definition, the word invention refers to a single idea—Edison‘s high resistance filament, the Wright brothers’ wing-warping, Watt‘s steam engine condenser, etc.”  Anyone with even an elementary familiarity of patents knows that simultaneous inventions are very rare.  The Patent Office has a procedure (soon to be extinct) to determine which of two or more people are the true inventors of an invention.  These cases are extremely rare involving around 0.01% of all patent application filed.

As an example of Lemley’s gross negligence of the facts, with respect to Edison’s invention of the high resistance incandescent light bulb, the authors show that a court found:

It is very clear to us that, in the original application for the patent sued on, the applicants had no such object in view as that of claiming all carbon made from fibrous and textile substances as a conductor for an incandescing electric lamp. Nothing on which to base any such claim is disclosed in the original application. We have carefully compared it with the amended application, on which the patent was issued, and are fully satisfied that, after Edison’s inventions on this subject had been published to the world, there was an entire change of base on the part of Sawyer and Man, and that the application was amended to give it an entirely different direction and purpose from what it had in its original form. (emphasis added)

But Lemley ignores this part of the history and asserts that this is a case of simultaneous invention.

The actual invention of Sawyer and Man was:

improvements were directed at having a lamp filled with an absorbent of carbonic acid gas, a spring-loaded feeder feeding a vertical carbon pencil upwards as it was consumed and a design for cheap carbon pencil renewal with easy sealing and exhausting of air. Lemley neglects to tell us that despite these improvements, and even after Edison’s invention, many of the [Sawyer & Man] lamps failed to last more than a few hours.

Lemley also ignores that :

the electrical resistance of these (pre-Edison) lamps was typically only a few Ohms and thus required large currents to power them, rendering power losses through long distribution wires prohibitive. Lemley also neglects to tell us that Sawyer & Man‘s light bulbs could not be used effectively more than a few feet away from a generator, and therefore had little commercial practicality

Please read the whole paper, A Critique of Mark Lemley’s “The Myth of the Sole Inventor” http://bit.ly/Lemley-Critique.  I will leave you one final quote from the paper.

One can only speculate how much longer it would have taken someone else to come up with Edison‘s idea had it not been for Edison‘s reliance on the patent system and the revenue it protected to support his research and development over the two years that he spent on inventing his incandescent electric lamp.