Back in September, Professor Mark Lemley began promoting his latest piece of scholarly work, entitled The Myth of the Sole Inventor. Lemley set out to discover the truth about a theory of patents he apparently considers relatively fundamental. His piece begins:
The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented.
Lemley states this theory more or less as a truism, despite the fact that the motivations behind creating a patent system are far too diverse to boil down to any single theory. Further, while a lone genius can solve problems that stump so-called “experts,” the lone genius’s motivations should hardly be presupposed. I also detect implicit ridicule in Lemley’s suggestion that an outsider working alone automatically fails to qualify as an “expert” who, presumably, works in university or corporate research.
Rhetoric aside, Lemely’s work actually demonstrated a point so mundane that, initially, I struggled to understand why it was worth making at all: invention is incremental. Lemley offers up examples of Edison, Bell and the Wright Brothers to demonstrate how neither “invented” the fundamental concepts with which they are associated, but rather contributed to a developing field to improve and advance their art.
I argued this very point more than six years ago in an amicus brief I co-authored on behalf of my then-mentor, Hal Milton. In that brief, Hal and I observed:
Technological change is generally incremental, usually by many investigators in the field, and it is not a sudden and revolutionary step forward. The public is usually not aware of the incremental progress and only learns of the last increment by a successful inventor who makes the technology usable.
At the time, we hoped to counsel the Supreme Court against adopting a patentability standard that would render novel combinations obvious through ad-hoc hindsight reasoning. But where the Supremes left off, Lemley carries on, claiming that the doctrine of “obviousness” prevents patenting of inventions that would have been obvious to “ordinarily innovative scientists” and that we should deny patentability to all but those inventions “we wouldn’t expect to get without the incentive of a patent.”
Lemley frames the inquiry as one of a hypothetical world without patents, and then asks whether a given invention would exist in that hypothetical world or not. But this is not the standard. Congress instructed that an invention should only be denied a patent if obvious to “one of ordinary skill in the art.” The 19th Century Supreme Court case on which this standard is based (incidentally a prime example of judicial activism) denied patentability to “the work of the skillful mechanic,” instead of Lemley’s preferred standard of “innovative scientists.” More importantly, the expectation of the inventor’s reward plays no role in the question of patentability.
The process of invention and patenting are distinct. An inventor may nevertheless chose not to patent, but that has nothing to do with the question of whether the invention would have been entitled to a patent in the first place. Lemley’s logic walks us down a dangerous–and illogical–path to subjective evaluation of patentability, where one inventor’s decision not to patent would negatively impact other inventors’ ability to obtain patents simply because the mere existence of one inventor’s creation without patent protection suggests that other inventions likewise may exist in a hypothetical non-patent world.
Instead, those who criticize the patent system–and those who support it–ought to recognize that invention is largely incremental. We reward incremental inventions with patent protection because, in part, the increment that makes the difference between science fiction and science fact often cannot be predicted in advance. As a culture, we decide whether inventions (as a class) deserve patent protection or not, but merely pointing out the incremental nature of the overall inventive process fails to advance the debate.