Patents, they are what they used to be

Frequently, technically interesting reading collides with professionally interesting reading, at least for patent attorneys. Such was the case for Jim Stogdill’s article at O’Reilly Radar entitled Patents, they’re not what they used to be. At the risk of complaining that someone was wrong on the internet, Mr. Stogdill made one small but important error in how he characterized the patent system.

Mr. Stogdill shares a remembrance of visiting his grandfather, who sounds like the kind of fellow we all imagine as what a grandfather should be. As a retired engineer, Mr. Stogdill’s grandfather had received a number of patents in conjunction with his work at Dow Chemical. The 16-year-old grandson was impressed with those patents, and understandably so, thinking of his grandfather “[h]e was smart, and the U.S. Government was acknowledging it in a most formal way.” Mr. Stogdill goes on to explain that his “relationship with patents is a lot more complicated now that it was then.” In particular, the recent issuance of a patent that he invented bothered him, even though the “16-year old version of [him] would have been stoked that the USPTO saw enough value in it to grant a patent.” Mr. Stogdill’s qualms about the issuance of the patent application that he had filed involves concerns around software patent policy and congressional efforts at patent reform. 

While discussions of the merits of patent reform proposals are best left to blogs not affiliated with a patent law firm, Mr. Stogdill did misapprehend the purpose of granting patents. Whatever changes are made to the patent system, changes made based on misunderstandings of how the system works are not likely to be for the better, so it is worth noting that the patent system has never been about recognizing the value of a contribution to a technology. Patent law has never been about acknowledging smart engineers. Marketing hype sometimes seeks to convince consumers that the grant of a patent is an indication of the importance or quality of an idea. The common American mythology of Edison and Bell and Whitney celebrate inventors as brilliant, but the proof of their brilliance is in the impact their ideas had, not in the patents that they obtained.

At least as taught at law school back in the 1990’s, the United States patent system has always been about granting limited monopolies to inventions that are new, useful, and non-obvious. Those inventions do not have to be important, valuable, smart, or even better than what had been done before. They only have to be new, useful, and non-obvious. After the Patent Office determines what is new, useful, and non-obvious, the marketplace will determine which inventions are valuable.

Congress will sort out what, if any, further changes should be made to the Patent Act. Groups on every side of the proposed changes can and should voice their opinions on those proposals. We should all be clear, however, that none of the proposals will - or should - change how important or smart an idea has to be in order to be patentable. Importance is not one of the criteria that the Patent Office considers. Patent examiners face a formidable challenge in merely determining whether a claimed invention is new and not an obvious extension of what is known; asking them to determine whether an invention is somehow valuable enough to justify awarding a patent is more than can be expected of them.

Impressive vs. Important

An impressive technology will get noticed, but getting noticed is a necessary but insufficient bar to clear for success in the marketplace. The incandescent light bulb was an impressive idea in its time - so impressive that an illuminated light bulb has become the symbol of a good idea. 

Everyone knows the story of Edison’s invention of the light bulb, but the problem with the story that everyone knows is that Edison did not invent the light bulb. As Edison’s first patent application filing on an electric light acknowledged, “[e]lectric lights have been produced by a coil or strip of platina or other metal that requires a high temperature to melt, the electric current rendering the same incandescent.” United States Patent No. 214,636, April 22, 1879 (note: this is not even the patent to Edison’s key light bulb technology - that came later). We do not remember the large number of researchers who developed light bulbs before Edison not because they lacked an impressive technology, but because they lacked the important technology to make the light bulb viable for commercial use.

Edison’s success came from realizing that the impressive invention - the light bulb itself - still needed an important invention to be practical, and then he set to work making the important invention. Actually, Edison made several important inventions to make a viable light bulb, but in particular he realized the need for a new material to use as a filament. The platinum filaments previously used were expensive and impractical. The new filament material needed to function well, of course. It needed to give off enough light. The material had to last long enough to be practical, but it also had to be available in a volume and at a price that allowed for the bulbs to be produced and sold at an affordable price. 

After trying hundreds of different options, Edison made the important discovery: carbon in the form of “lamp black” applied to a fiber was an ideal candidate for an incandescent bulb filament if (but only if) the bulb was at a very low pressure. This was the focus of Edison’s United States Patent Number 223,898 (January 27, 1880). Edison’s ‘898 Patent was “narrow” in the sense that it covered only one very specific concept for what a light bulb could be, rather than a broad range of possible light bulbs; fortunately for Edison, however, the ‘898 Patent covered precisely what a light bulb needed to be in order to be commercially successful in its day. 

If even Thomas Edison’s idea that became synonymous with invention was more about the important technology than the impressive technology, today’s R&D work and the patent attorneys charged with securing rights to that work should not get too hung up on chasing the impressive instead of the important. Filing patent applications on impressive technologies is great when it can be done, but often the impressive technology has already been shown to the world and can no longer be patented, as was the case with Edison and the incandescent light bulb. In that case, spotting what new piece of the technology is important and patenting it is the key. Even if you can’t patent the light bulb, patenting the best light bulb is not a bad day’s work.

Note: For anyone interested in Thomas Edison, there are, of course, numerous biographies available. Beyond the typical biographies, Rutgers University has made an extensive amount of materials relating to Edison and his work available online.