Guest editorial: When history is more about patent present than patent past

The July 2015 guest editorial is by Neil J. Wilkof (head of trade marks and information technology, Dr Eyal Bressler & Co., Israel, and a founder member of the JIPLP Editorial Board). Neil writes:

When history is more about patent present than patent past

The study of history, in addition to offering a better appreciation of what has happened in the past, is also called upon to support our justification of the present. To a large extent, however, reliance on historical narrative has not been a central part of IP research. This may be changing, no more so than in connection with the debate over the role of the patent system in contributing to innovation. Two notable expressions of how the past has been marshalled to support arguments about the current state of patent law are Professor Mark Lemley's challenge to the manner in which invention takes place and the patent justification for such inventions, “The Myth of the Sole Inventor” (Michigan Law Review 2012) and the on-going critique of the patent system by Professors Michele Boldrin and David K. Levine, as recently stated in “The Case Against Patents” (Journal of Economic Perspectives 2013). It is worth considering the role that historical anecdote plays for these scholars in promoting their respective positions on the nature of the patent system.

Lemley challenges the canon that path-breaking invention is usually the result of the creation of a lone genius supported by incentives provided by the patent system. He concludes that most significant inventions are made by multiple teams, each working independently of the other, within the context of a social milieu ripe for such invention (what he calls “near-simultaneous invention"). Lemley brings abundant examples from the 18th to the mid-20th century to argue against the notion that we have lone inventors to thank for the steam engine (James Watt), steamboats (Robert Fulton), the cotton gin (Eli Whitney), the telegraph (Samuel Morse), the sewing machine (Elias Howe), the telephone (Alexander Graham Bell), the lightbulb and the movie projector (Thomas Alva Edison), the automobile (Carl Benz), the airplane (Orville and Wilbur Wright), the radio (Guglielmo Marconi), the television (Edwin Armstrong), the television (Philo Farnsworth), the computer (John Atanasoff), and lasers (Charles Townes, Arthur Schawlow and Gordon Gould). He concludes:

“… [T]he message should be clear. Even the inventions that seem the most significant departures from the prior art are in fact generally the product of simultaneous independent invention of incremental development from multiple sources, or both” (pp. 731–733).

Boldrin and Levine are much more far-reaching in their assertions. They have been arguing for over a decade that innovation and advances in productivity do not derive from patent protection but rather what they call the “fruit of a competitive environment” (p. 1). Legal reliance on patents occurs only after an industry matures and the potential for growth diminishes. In the aggregate, a strong patent system will likely inhibit innovation and result in significant deleterious side effects.

Within this framework, they argue that inventors and innovators exchange ideas as a routine matter; it is only at a later stage that an inventor may keep secret a development in order “to corner the market for a functioning device by patenting it” (p. 10). To show this, they too refer to the Wright brothers, claiming that they maintained the secrecy of “a modest improvement in existing flight technology” (p. 10) until they received patent protection. The result, in their words, was that the Wright brothers managed “to monopolize the US market and to prevent innovation for nearly 20 years” (p. 10). Boldrin and Levine state that the role played by Marconi and his patent in connection with the development of the radio industry was similar to that of the Wright brothers in retarding development in the flight industry.

How should we understand the role in these studies played by reliance on historical anecdote? Clearly historical analysis qua historical analysis is not the intention. The respective authors are engaged in neither a reconsideration of primary historical sources nor a broad re-synthesis of various secondary historical accounts. Rather, these anecdotes are brought to support (saying “to prove” would be going too far) their respective counter-narratives about the current state of the patent system. In so doing, what they are emphasizing is the continuity of their respective narratives from an historical perspective, thereby presumably giving greater weight to their claims regarding the patent system. Whether they have succeeded is for the reader to decide.