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Posts Tagged ‘Edison’


Edison was a Patent Troll

The excellent book Great Again by Henry R. Nothhaft with David Kline points out that in the middle 19th century:

Foreign observers attributed much of the country’s (U.S.) rapid technological progress to its distinctive patent system.  Quite revolutionary  in design at inception, the U.S.patent system came to be much admired for providing broad access to property rights in new technological knowledge and for facilitating trade in patented technologies.  These features attracted the technologically creative, even those who lacked the capital to directly exploit their invention  . . . and also fostered a division of labor between the conduct of inventive activity and the application of technical discoveries to actual production.  It is no coincidence that Britain and many other European countries [later] began to modify their patent institutions to make them more like those of the Americans. (emphasis added)

They point out that in the U.S 85% of all patents were licensed by their inventors, while only 30% of patents in Britain were licensed.  In the late 19th centuryU.S. inventors were increasingly operating as independent inventors who extracted returns from their discoveries by licensing or selling their patent rights.  Among these inventors were Edison, Bell, Tesla, etc.  “An astonishing two thirds of all America’s great inventors in the nineteenth century were actually NPEs” (Non-Practicing Entities).  But today’s modern Luddites would call these great inventors trolls.  They claim all value is created by production and marketing or if they are economists they claim all value is create by manipulating monetary instruments and deny the source of all human values, the mind.  They denigrate inventors who demand a return on their efforts as imposing a tax on innovation.  Invention is the only source of per capita increases in wealth.

The book asks:

 Does it really make sense to consider Edison a “patent troll” just because he licensed most of his inventions rather than commercializing them himself?  As the inventor of electric light and power, the phonograph, and many other world-changing new technologies, his contributions toAmerica’s economic progress are beyond dispute.

Is there any evidence of a patent litigation (troll) explosion?

Judge Michel former head of the CAFC, the court which hears all patent appeals, points out that the number of patent suits filed each year has remained constant at less than three thousand.  Only about 100 of these suits ever go to trial.  In a technology based economy with over 300 million people and 1 million active patents this is trivial.

The reality is the Patent troll/ litigation crises is a very clever marketing ploy by large multinational companies that want to be able to steal U.S.inventors’ technology.  The America Invents Act will put the final nail in the coffin of U.S.innovation if it passes, by making it even easier to steal U.S. innovation.  It is a product of these same multinational companies that are not interested in vitality of the U.S.economy, but in their short term profits.

 
“Mr. Watson. Come here. I need you.”

March 7 is the anniversary of Alexander Graham Bell’s patent on the telephone.  There is a common misconception that Bell received the patent over Elisha Gray because he was first to the patent office by several hours.  This is incorrect.  The United States has always had a first-to-invent patent system not a first-to-file system.  Let’s hope it stays that way.  (Congress is considering changing our patent laws to a first-to-file system, which would be disastrous for independent inventors and small companies.)  As a result, it was irrelevant who filed their patent application first. 

 Eventually a number of patents related to the telephone were all involved in an interference, which is a proceeding to determine who was the first true inventor.  According to an article in the New York Times dated October 24, 1884, there were originally fourteen parties involved in the interference but only six remained:  William L. Voelker (two patent applications), Thomas A. Edison (five applications), Elisha Gray (four applications), John H. Irwin & James W. McDonough (one application), and Alexander Graham Bell (two applications).  These patents appear to have covered eleven patentably distinct aspects (counts) of the telephone.  One count was directed to the speaker diaphragm, another count was directed to transmitting reproducing sound by increasing and decreasing the strength of an electric current.  Bell did not win on all counts. 

There are number of things that are interesting about this article in the New York Times.  For instance, the writer did not feel compelled to explain to his audience what an interference was or what a count in an interference was.  I cannot image this being the case in any general interest publication today.  Only in a publication specifically directed to patent attorneys would this be true today.  It is unlikely that any generally interest publication or even industry specific publication would carry an article on a patent interference.  Clearly, inventors and patents were held in higher regard in the late 1800s than today.

Another interesting point: there were many patents involved in the invention of the telephone.  These overlapping rights had to be resolved to create a functioning telephone system.  Any  number of patent critics today seem believe we are unique in having multiple patents that apply to a product or system; but at least since the invention of the steam engine it was common to have these overlapping rights.  Despite today’s critics , our ancestors were able to deal with these issues and move technology forward.  Why is this such a hard concept to reconcile?

 
National Inventors’ Day

Ronald Reagan proposed National Inventors Day at February 11 in 1983.  February 11 was chosen because it is Thomas Alva Edison’s birthday.  Reagan’s proclamation was

Almost two hundred years ago, President George Washington recognized that invention and innovation were fundamental to the welfare and strength of the United States. He successfully urged the First Congress to enact a patent statute as expressly authorized by the U.S. Constitution and wisely advised that “there is nothing which can better deserve your patronage than the promotion of science . . .” In 1790, the first patent statute initiated the transformation of the United States from an importer of technology to a world leader in technological innovation.

Today, just as in George Washington’s day, inventors are the keystone of the technological progress that is so vital to the economic, environmental, and social well-being of this country. Individual ingenuity and perseverance, spurred by the incentives of the patent system, begin the process that results in improved standards of living, increased public and private productivity, creation of new industries, improved public services, and enhanced competitiveness of American products in world markets.

In recognition of the enormous contribution inventors make to the nation and the world, the Congress, pursuant to Senate Joint Resolution 140 (Public Law 97 – 198), has designated February 11, 1983, the anniversary of the birth of Thomas Alva Edison, one of America’s most famous and prolific inventors, as National Inventors’ Day. Such recognition is especially appropriate at a time when our country is striving to maintain its global position as a leader in innovation and technology. Key to our future success will be the dedication and creativity of inventors.

Now, Therefore, I, Ronald Reagan, President of the United States of America, do hereby proclaim February 11, 1983, as National Inventors’ Day and call upon the people of the United States to observe this day with appropriate ceremonies and activities.

In Witness Whereof, I have hereunto set my hand this 12th day of Jan., in the year of our Lord nineteen hundred and eighty-three, and of the Independence of the United States of America the two hundred and seventh.

Ronald Reagan

While Reagan’s economic plan is generally thought of as just reducing taxes, he was a strong supporter of policies that encourage invention.  He strengthened the patent system by creating the Court of Appeals for the Federal Circuit.  All patent appeals were consolidated into the (CAFC) created in 1982. A number of the initial Judges on the CAFC were former patent attorneys and the court brought consistency to patent appeals.  The court also took seriously the idea that issued patents are presumed to be valid.  These changes signaled a more favorable atmosphere for patents in the 1980’s.  Before the CAFC patents were treated differently in each of the federal court circuits.  Some circuits had not upheld the validity of a patent in decades.  The new court brought a sense of stability to patent law.  The 1980’s saw a restoration of America’s economic and technological dominance in the world.

As Reagan’s quote above shows, he understood the connection between a strong patent system and a strong economy and more generally a strong U.S.  Today 96% of Americans believe innovation is critical to the success of the US as a world economic leader.  Zogby Poll, January 2010.  If America wants to be great again, then we have to protect the rights of our inventors.

 
Obviousness – Flow Chart

Novel2This is my second post on the nonobviousness standard for patents (35 USC 103).  The earlier post focused on the practical questions that an inventor and his attorney face when negotiating with the Patent Office (PTO).  This post attempts to provide a rational approach to the nonobviousness requirement.

Once it has been determined that a patent claim is novel, step 10 in the flow chart, there are only two things that can make the invention nonobvious.  One is a new result and the other is a new combination that has provides same result in the prior art.  At step 12, we determine if the invention has a new result.  For instance, Edison’s light bulb had a new result of a high resistance filament.  This result is important because it makes it possible to build an economically

 

The first step in build a market dominating patent portfolio is to undertake a survey of the patent landscape in your marketplace.  For more information on how to perform a prior art survey please see Competitive Analysis and Patent Portfolios .  This analysis will show you where there are gaps in the prior art that can be exploited and also help stimulate your thinking about design options.  Gary Boone, the inventor of the microcontroller, explains the advantage of surveying the prior art this way.  “Most engineering design groups do not feel there is much to learn by reading patents.  I feel that’s unfortunate, because there is a huge amount to learn from the accumulated five million issued patents, just picking up the U.S. patents alone.”

 

What do we mean by innovation?  We mean the creation of something new.  Because of conservation of matter (and energy), new does not mean creating something out of nothing.  As used here innovation means a new combination of elements and connections that has positive value to a human being.  Combinations of elements and connections that are new but have no value to any human being are generally noise.  However, in the case of failed attempts to solve a problem the new combination may have value in what does not work.  For instance, Edison considered his attempts to create a light bulb as having negative value.  He told a reporter, “I now know definitively over 9,000 ways that an electric light bulb will not work.” 

 

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