The myth of the sole inventor

Michigan Law Review

Volumn 110, Issue 5, 2012, Pages 709-760

  Lemley, Mark A ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 84858134288     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (432)

1. Chris Cotropia identifies the individual-inventor motif as a driving force in the original patent system, albeit one that is mostly given lip service today
2. Christopher A. Cotropia, The Individual Inventor Motif in the Age of the Patent Troll, 12 Yale J.L. & Tech. 52 (2009).
3. The first-to-invent regime is on its way out as a result of the passage of the Leahy-Smith America Invents Act in 2011. See Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scatttered sections of 35 U.S.C.). But it remains the law for any patent application filed before March 16, 2013.
4. Steven Johnson, Where Good Ideas Come From: The Natural History of Innovation 131-139 (2010).
5. The U.S. Patent and Trademark Office ("PTO" or "patent office") issued 219,614 patents in 2010. U.S. Patent Statistics Chart Calendar Years 1963-2010, U.S. Patent & Trademark Office, http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm (last modified Sept. 7, 2011).
6. Because how ironic would it be if one and only one academic had come up with the idea that ideas are rarely developed by one and only one person?
7. Robert K. Merton, Singletons and Multiples in Scientific Discovery: A Chapter in the Sociology of Science, 105 Proc. Am. Phil. Soc'y 470, 470 (1961).
8. D. Lamb & S.M. Easton, Multiple Discovery (1984).
9. S Merton, supra note 5, at 473.
10. Wilfred Schoenmakers & Geert Duysters, The Technological Origins of Radical Inventions, 39 Res. Pol'y 1051 (2010).
11. William Fielding Ogburn, Social Change with Respect to Culture and Original Nature 90-122 (1922)
12. William F. Ogburn & Dorothy Thomas, Are Inventions Inevitable? A Note on Social Evolution, 37 Pol. Sci. Q. 83 (1922).
13. For a more skeptical reading of the history
14. Augustine Brannigan & Richard A. Wanner, Paper, Historical Distributions of Multiple Discoveries and Theories of Scientific Change, 13 Soc. Stud. Sci. 417, 420 (1983).
15. Ted Sichelman suggested this possibility to me.
16. Christopher A. Cotropia & Mark A. Lemley, Copying in Patent Law, 87 N.C. L. Rev. 1421, 1424 (2009).
17. John R. Allison & Mark A. Lemley, Empirical Evidence on the Validity of Litigated Patents, 26 AIPLA Q.J. 185, 208 (1998).
18. William C. Robinson, The Law of Patents for Useful Inventions § 29 (Boston, Little, Brown & Co. 1890).
19. Marconi Wireless Tel. Co. of Am. v. United States, 320 U.S. 1, 62 (1943) (Frankfurter, J., dissenting).
20. All inventors have the fortune of standing on the shoulders of the proverbial giants who preceded them. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 477 & n.28, 478 (1984) (noting, in the case of copyright, that each person builds on the work of predecessors).
21. Suzanne Scotchmer, Standing on the Shoulders of Giants: Cumulative Research and the Patent Law, 5 J. Econ. Persp. 29 (1991)
22. Discussing how to divide joint profit among innovators within the framework of patent law when one innovator's technology builds on another's). As Justice Story explained well over a century ago, "[I]n literature, in science, and in art, there are, and can be, few, if any, things [that] are strictly new and original throughout." Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4436); cf. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society passim (1996) (arguing that society systematically understates the extent to which creators borrow from preexisting works).
23. George J. Stigler, The Nature and Role of Originality in Scientific Progress, 22 Economica 293, 293-295 (1955).
24. Amy L. Landers, Ordinary Creativity in Patent Law: The Artist Within the Scientist, 75 Mo. L. Rev. 1, 62-63 (2010) (noting that simultaneous invention is a "logical next step" when knowledge accumulates within a field).
25. Stigler, supra note 16, at 293-95.
26. Campbell observes, [a] major empirical achievement of the sociology of science is the evidence of the ubiquity of simultaneous invention. If many scientists are trying variations on the same corpus of current scientific knowledge, and if their trials are being edited by the same stable external reality, then the selected variants are apt to be similar, the same discovery encountered independently by numerous workers. This process is no more mysterious than that all of a set of blind rats, each starting with quite different patterns of initial responses, learn the same maze pattern, under the maze's common editorship of the varied response repertoires. Their learning is actually their independent invention or discovery of the same response pattern.
27. Donald T. Campbell, Evolutionary Epistemology, in 1 The Philosophy of Karl Popper 413, 435 (Paul Arthur Schilpp ed., 1974), reprinted in Evolutionary Epistemology, Theory of Rationality, and the Sociology of Knowledge 47, 71 (Gerard Radnitzky & W.W. Bartley, III eds., 1987).
28. Joel Mokyr, The Gifts of Athena: Historical Origins of the Knowledge Economy 101 (2002).
29. id. at 7-9.
30. id. at 101.
31. id.
32. For a discussion of the literature
33. Landers, supra note 17, at 62-69.
34. Defining a "pioneering" invention is difficult. For purposes of this Article, I do not need to work through those definitional difficulties. In general, I treat an invention as a pioneer if it creates a new market, opens new opportunities in a variety of existing markets, or renders current technologies in an existing market obsolete. For discussions of the definitional issues.
35. Mokyr, supra note 20
36. David C. Mowery & Nathan Rosenberg, Paths of Innovation: Technological Change in 20th-Century America (1998).
37. Courts have a well-established doctrine of "pioneering inventions," and thus have considered these issues. Over a century ago the Supreme Court said that the "[m]ost conspicuous examples of such [pioneering] patents are: [t]he one to Howe of the sewing machine; to Morse of the electrical telegraph; and to Bell of the telephone." Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 562 (1898). For a discussion of the legal doctrine of pioneer inventors.
38. Brian J. Love, Interring the Pioneer Invention Doctrine, 90 N.C. L. Rev. (forthcoming 2012), available at http://works.bepress.com/brian_love/3/
39. John R. Thomas, The Question Concerning Patent Law and Pioneer Inventions, 10 High Tech. L.J. 35, 37 (1995)
40. Courts construe pioneer patent claims ... to encompass a broader range of so-called 'equivalents' during an infringement determination."
41. Samson Vermont, A New Way to Determine Obviousness: Applying the Pioneer Doctrine to 35 U.S.C. § 103(a), 29 AIPLA Q.J. 375 (2001).
42. For general background on Watt
43. Eric Robinson & A.E. Musson, James Watt and the Steam Revolution (1969).
44. Michele Boldrin & David Levine, Against Intellectual Monopoly 1-5 (2008)
45. who use it as an illustration of what they see as the problem with patents.
46. Id. at 6.
47. Id. at 9.
48. George Selgin & John Turner, Strong Steam, Weak Patents, or, the Myth of Watt's Innovation-Blocking Monopoly, Exploded, 54 J.L. & Econ. (forthcoming 2011) (manuscript at 3), available at http://ssrn.com/abstract=1589712
49. Watt's monopoly rights may actually have hastened the development of the high-pressure steam engine, by causing at least one of his rivals-Richard Trevithick-to revive a previously abandoned technology in order to invent around Watt's monopoly.
50. James Mak & Gary M. Walton, Steamboats and the Great Productivity Surge in River Transportation, 32 J. Econ. Hist. 619, 623-624 (1972).
51. Jack L. Shagena, Who REALLY Invented the Steamboat? Fulton's CLERMONT Coup 113-390 (2004)
52. Detailing the work of eight different inventors, including Robert Fulton, but also William Henry, James Rumsey, John Fitch, Oliver Evans, Nathan Read, Samuel Morey, and John Stevens.
53. Michael F. Martin, The End of the First-to-Invent Rule: A Concise History of Its Origin, 49 IDEA 435, 451-453 (2009)
54. Frank D. Prager, The Steam Boat Interference 1787-1793, 40 J. Pat. Off. Soc'y 611, 613-615 (1958)
55. Edward C. Walterscheid, Priority of Invention: How the United States Came to Have a "First-to- Invent" Patent System, 23 AIPLA Q.J. 263, 270 (1995).
56. E.g., Robert P. Merges et al., Intellectual Property in the New Technological Age 125-26 (5th ed. 2010) (identifying the conflict between the states over the inventor of the steamboat as a motivator for the constitutional grant of patent power to the federal government).
57. William Woodward goes so far as to suggest that "Fulton might more properly be credited with the invention of the [patent] 'claim' than of the steamboat."
58. William Redin Woodward, Definiteness and Particularity in Patent Claims, 46 Mich. L. Rev. 755, 758 (1948).
59. The classic story is well recounted in Denison Olmsted, Memoir of Eli Whitney, Esq. (Arno Press 1972) (1846).
60. His frustration with patent litigation was so great that at one point he wrote to his friend Josiah Stebbins, "I have a set of the most Depraved villains to combat and I might almost as well go to hell in search of happiness as apply to a Georgia Court for Justice." Mary Bellis, Eli Whitney and the Cotton Gin: Eli Whitney's Patent Battle, About.com, http://inventors.about.com/cs/inventorsalphabet/a/eli_whitney_5.htm (last visited Oct. 28, 2011).
61. Angela Lakwete, Inventing the Cotton Gin: Machine and Myth in Antebellum America 1-20 (2003).
62. Id. at 27-31.
63. Id. at 37-45.
64. Id. at 46-48.
65. Id. at 59-60.
66. Id. at 58-61 (internal quotation marks omitted).
67. Kenneth Silverman, Lightning Man: The Accursed Life of Samuel F.B. Morse 153-155 (2003).
68. Id.
69. Id. at 151-152.
70. O'Reilly v. Morse, 56 U.S. (15 How.) 62, 107-110 (1854). For a more detailed history
71. Ken Beauchamp, History of Telegraphy 6-48 (2001).
72. O'Reilly, 56 U.S. (15 How.) at 108.
73. David Hochfelder, Joseph Henry: Inventor of the Telegraph?, Smithsonian Inst. Archives (2007), http://siarchives.si.edu/history/jhp/joseph20.htm.
74. Beauchamp, supra note 47, at 52
75. S Silverman, supra note 44, at 159-160.
76. Adam Mossoff, O'Reilly v. Morse: Reevaluating a Foundational Patent Case in Historical Context (Working Paper 2010), available at http://169.229.248.216/files/bclt_IPSC2010_Mossoff(1).pdf.
77. Silverman, supra note 44, at 235.
78. Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 562 (1898).
79. Adam Mossoff, The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s, 53 Ariz. L. Rev. 165, 193-194 (2011)
80. Ryan L. Lampe & Petra Moser, Do Patent Pools Encourage Innovation? Evidence from the 19th-Century Sewing Machine Industry 9 (Nat'l Bureau of Econ. Research, Working Paper No. 15,061, 2009), available at http://ideas.repec.org/p/nbr/nberwo/15061.html.
81. Mossoff, supra note 54, at 177-79.
82. Id. at 187.
83. For a good general background, see Robert V. Bruce, Bell: Alexander Graham Bell and the Conquest of Solitude (Cornell Univ. Press 1990) (1973).
84. U.S. Patent No. 174,465 col. 1 ll. 4-5 (filed Feb. 14, 1876).
85. The Bell Telephone: The Deposition of Alexander Graham Bell in the Suit Brought by the United States To Annul the Bell Patents 12 (Am. Bell Tel. Co. 1908). For a general discussion regarding competing claims to the development of the telephone.
86. Michael E. Gorman, Transforming Nature: Ethics, Invention and Discovery §§ 3.2.1-3.5 (1998).
87. The Telephone Cases, 126 U.S. 1, 66 (1888).
88. Bruce, supra note 57, at 92-93
89. Paul Israel, Edison: A Life of Invention 131 (1998).
90. Bruce, supra note 57, at 130-138.
91. David A. Hounshell, Bell and Gray: Contrasts in Style, Politics, and Etiquette, 64 Proc. IEEE 1305, 1311-1314 (1976) [hereinafter Hounshell, Bell and Gray]
92. David A. Hounshell, Two Paths to the Telephone, Sci. Am., Jan. 1981, at 157+157+162-163 [hereinafter Hounshell, Two Paths].
93. In fact, Gray's filing was a "caveat" rather than a full patent application. Hounshell, Bell and Gray, supra, at 1311. A caveat was a mechanism by which an inventor working in a field could receive notice if anyone else filed a patent on the same technology, so that the parties could litigate the question of who was first. Patent Act of 1836, ch. 357, § 12, 5 Stat. 117 (1836) (amended 1870).
94. For instance, Gray's receiver worked better than the one Bell actually designed.
95. Hounshell, Bell and Gray, supra note 63, at 1308-1133.
96. Compare U.S. Patent No. 174,465 (filed Feb. 14, 1876) (issued Mar. 7, 1876), with Bruce, supra note 57, at 179-181.
97. The Telephone Cases, 126 U.S. 1, 531, 572 (1888). For an excellent history of this litigation, see Christopher Beauchamp, Who Invented the Telephone? Lawyers, Patents, and the Judgments of History, 51 Tech. & Culture 854 (2010).
98. The Telephone Cases, 126 U.S. at 573 (Bradley, J., dissenting).
99. See Israel, supra note 61, at 119-20; Andre Millard, Edison and the Business of Innovation 19 (1990) ("Edison's invention factories were the pioneers of industrial research ...."); Working at Inventing: Thomas A. Edison and the Menlo Park Experience (William S. Pretzer ed., 1989).
100. For a discussion of the chronology of electric lighting up to the time of Edison
101. Robert Patrick Merges & John Fitzgerald Duffy, Patent Law and Policy: Cases and Materials 269 (4th ed. 2007).
102. See The Incandescent Lamp Patent, 159 U.S. 465 (1895). Sawyer and Man lost the suit because their patent claim was overbroad; while they had used a high-resistance filament made of carbonized paper to generate light, the Court held their claim to all filaments of vegetable and fibrous material overbroad, in part because they did not recognize the importance of high resistance.
103. Kenneth R. Swan, Sir Joseph Swan and the Invention of the Incandescent Electric Lamp 21-25 (1946).
104. Incandescent Lamp Patent, 159 U.S. at 471.
105. By 1903, Willis Whitnew had developed a metal-coated carbon filament that did not turn the inside of the lamp black.
106. G. Zissis & S. Kitsinelis, State of Art on the Science and Technology of Electrical Light Sources: From the Past to the Future, 42 J. Physics D: Applied Physics 173001, at 3 tbl.1 (2009).
107. Zissis and Kitsinelis also include a chronology of lighting-related inventions that predate Edison's. Id.
108. David E. Fisher & Marshall Jon Fisher, Tube: The Invention of Television 40 (1996).
109. Id. at 40-41.
110. Id. at 41.
111. Mowery & Rosenberg, supra note 25, at 50-52.
112. Allan Nevins, Frank Ernest Hill, Ford: The Times, the Man, the Company 126-127+189 (1954).
113. For a discussion of these precursors, see id. at 92-118.
114. Daniel M.G. Raff & Manuel Trajtenberg, Quality-Adjusted Prices for the American Automobile Industry: 1906-1940, in The Economics of New Goods 71, 75 tbl.2.1 (Timothy F. Bresnahan & Robert J. Gordon eds., 1996)
115. Nevins, Hill, supra note 78, at 92-118.
116. Richard Bak, S Henry and D Edsel: The Creation of the Ford Empire 19-22 (2003).
117. James J. Flink, The Automobile Age 51-54 (1988).
118. Columbia Motor Car Co. v. C.A. Duerr & Co., 184 F. 893, 901 (2d Cir. 1911).
119. Bak, supra note 81, at 73.
120. Jacob Schmookler, Changes in Industry and in the State of Knowledge as Determinants of Industrial Invention, in Nat'l Bureau of Econ. Research, The Rate and Direction of Inventive Activity: Economic and Social Factors 195, 226 (1962).
121. John D. Anderson Jr., Inventing Flight: The Wright Brothers and Their Predecessors 3, 153 (2004)
122. Tom D. Crouch, A Dream of Wings: Americans and the Airplane, 1875-1905, at 19 (1981) (positing that the invention of the airplane was achieved due to a "foundation of a unique community of American technologists").
123. Anderson, supra note 86, at 25-27.
124. Id. at 92.
125. Id. at 66-73.
126. Id. at 48-49+92.
127. Id. at 92.
128. Id. at 94-95.
129. Id. at 116-117.
130. Id. at 95 (internal quotation marks omitted).
131. Id. at 101 ("With the exception of wing warping for lateral control (uniquely their development), [the Wrights] used existing technology.").
132. Wright Co. v. Paulhan, 177 F. 261 (C.C.S.D.N.Y.) (L. Hand, J.) (holding the Wrights' patent to be pioneering and so entitled to broad scope), rev'd, 180 F. 112 (2d Cir. 1910).
133. Frank Wicks, Trial by Flyer, Mechanical Engineering Magazine (2003), http://www.memagazine.org/supparch/flight03/trialby/trialby.html.
134. Glenn Curtiss and the Wright Patent Battles, U.S. Centennial of Flight Comm'n, http://www.centennialofflight.gov/essay/Wright_Bros/Patent_Battles/WR12.htm (last visited Oct. 28, 2011).
135. George Bittlingmayer, Property Rights, Progress, and the Aircraft Patent Agreement, 31 J.L. & Econ. 227, 231-132 (1988)
136. Peter C. Grindley & David J. Teece, Managing Intellectual Capital: Licensing and Cross-Licensing in Semiconductors and Electronics, Cal. Mgmt. Rev., Winter 1997, at 8-34 n.4.
137. Hugh G.J. Aitken, The Continuous Wave (1985) and W. Rupert Maclaurin & R. Joyce Harman, Inventions & Innovation in the Radio Industry (1949).
138. Indeed, Ken Beauchamp's book History of Telegraphy considers "terrestrial telegraphy" and "aerial telegraphy" (i.e., radio), and devotes more time to the latter. See supra note 47.
139. Gary L. Frost, Early FM Radio: Incremental Technology in Twentieth-Century America 23 (2010).
140. Michele Boldrin & David K. Levine, Against Intellectual Monopoly ch. 8 at 23-25 (2008).
141. Beauchamp, supra note 47, at 186.
142. Id.
143. News Release, Stanford University, Humans Not Great at Assessing New Technology, Economist Says (June 1, 1994), available at http://news.stanford.edu/pr/94/940601Arc4231.html.
144. Marconi Wireless Tel. Co. of Am. v. United States, 320 U.S. 1, 38 (1943). For a discussion of the history
145. Christopher A. Harkins, Tesla, Marconi, and the Great Radio Controversy: Awarding Patent Damages Without Chilling a Defendant's Incentive to Innovate, 73 Mo. L. Rev. 745, 751-759 (2008).
146. See Radio Corp. of Am. v. Radio Eng'g Labs., Inc., 293 U.S. 1, 2-11 (1934)
147. George H. Douglas, The Early Days of Radio Broadcasting 11-12 (1987).
148. Johnson, supra note 2, at 133-34.
149. Grindley & Teece, supra note 99, at 10-12.
150. Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong 279-85+289 (1956).
151. Frost, supra note 102, at 2.
152. Id. at 23-53.
153. Id. at 57 ("An examination of FM radiotelephone patent applications filed from 1913 through the 1930s indicates that the development of frequency-modulation radio occurred predominantly in three large corporations headquartered in the northeastern United States: RCA, Westinghouse, and, far less productively, AT&T.").
154. id. at 69-74.
155. Donald G. Godfrey, Philo T. Farnsworth: The Father of Television (2001).
156. Andy Wright, Philo T. Farnsworth Statue, N.Y. Times, May 8, 2011, at A23.
157. R.W. Burns, Television: An International History of the Formative Years 368-369 (1998) (detailing the extensive litigation).
158. Fisher & Fisher, supra note 74, at 40-44.
159. Id. at 15-88.
160. Richard C. Webb, Tele-visionaries: The People Behind the Invention of Television 5 (2005).
161. Fisher & Fisher, supra note 74, at 91.
162. id. at 135-37.
163. id. at 126-134+145-147.
164. Webb, supra note 121, at 40.
165. Alice R. Burks & Arthur W. Burks, The First Electronic Computer (1988)
166. Clark R. Mollenhoff, Atanasoff: Forgotten Father of the Computer (1988).
167. Burks & Burks, supra note 126, at 277-278.
168. John V. Atanasoff, Advent of Electronic Digital Computing, in Computer Pioneers 28, 37 (J.A.N. Lee ed., 1995).
169. Id.
170. T.R. Kennedy Jr., Electronic Computer Flashes Answers, N.Y. Times, Feb. 15, 1946, at 1.
171. Honeywell Inc. v. Sperry Rand Corp., No. 4-67 Civ. 138, 1973 WL 903, at *7, *14-21 (D. Minn. Oct. 19, 1973).
172. John Alderman, Core Memory: A Visual Survey of Vintage Computers 10 (2007).
173. Nick Taylor, Laser: The Inventor, the Nobel Laureate, and the Thirty-Year Patent War (2000).
174. Gould v. Schawlow, 363 F.2d 908 (C.C. P.A. 1966).
175. Kenneth Chang, Gordon Gould, 85, Figure in Invention of the Laser, N.Y. Times, Sept. 20, 2005, at A27.
176. Taylor, supra note 133, at 114-117.
177. The patent was filed on June 8, 1955, id. at 374 n.5, and issued on February 6, 1973, U.S. Patent No. 3,715,344 (filed June 8, 1955) (issued Feb. 6, 1973). The Board of Patent Appeals and Interferences ("BPAI") declared the multiparty interference on September 9, 1958. Standard Oil Co. (Ind.) v. Montedison, S.p.A., 494 F. Supp. 370, 374 (D. Del. 1980). The BPAI issued its final opinion on priority on November 29, 1971. Id. at 375. The BPAI decision was appealed to the United States District Court for the District of Delaware, id. at 370, and then to the Court of Appeals for the Third Circuit, see Standard Oil Co. (Ind.) v. Montedison, S.p.A., 664 F.2d 356 (3d Cir. 1981).
178. For instance: • Gutenberg was not the first to invent printing, or a printing press. He did develop moveable type, but the same basic idea had been developed in Asia centuries before, and was the subject of independent work in the West by Johann Fust and Lauren Coster. Edmund C. Arnold, Ink on Paper 2: A Handbook of the Graphic Arts 4 (1972).
179. Warren Chappell & Robert Bringhurst, A Short History of the Printed Word 5-6 (2d ed. rev. & updated 1999)
180. J. Mort, The Anatomy of Xerography: Its Invention and Evolution 194-195 (1989).
181. The telescope was independently developed by six different inventors in 1608 and 1609. See, e.g., Lamb & Easton, supra note 6, at 145.
182. Samson Vermont, Independent Invention as a Defense to Patent Infringement, 105 Mich. L. Rev. 475, 479 (2006). n.1 (Fed. Cir. 1998).
183. An opinion in the last appeal of the BPAI's decision awarding priority to Boone was issued on August 26, 1998. See id. at 1348. • The jet engine was developed in Britain by Frank Whittle and in Germany by Hans von Ohain and Max Hahn at roughly the same time, using the same principles. Mokyr, supra note 20, at 101 n.39.
184. The human genome was sequenced by two different groups working in parallel, at the same time and with knowledge of each other. One was the publicly financed Human Genome Project, and the other a private venture by Craig Venter at Celera. The two groups reached their conclusions and published their results within two months of each other. See Int'l Human Genome Sequencing Consortium et al., Initial Sequencing and Analysis of the Human Genome, 409 Nature 860 (2001).
185. J. Craig Venter et al., The Sequence of the Human Genome, 291 Science 1304 (2001).
186. Except this one.
187. Sean B. Seymore, Atypical Inventions, 86 Notre Dame L. Rev. 2057, 2063-2070 (2011).
188. Kevin Brown, Penicillin Man: Alexander Fleming and the Antibiotic Revolution (2004)
189. Gwyn Macfarlane, Alexander Fleming: The Man and the Myth (1984).
190. S Macfarlane, supra note 141, at 8 (describing the discovery as the result of "a series of chance events of almost unbelievable improbability").
191. id. at 90.
192. Henry Petroski, The Evolution of Useful Things 84-86 (1992)
193. Inventor of the Week Archive: Art Fry & Spencer Silver, Mass. Inst. of Tech. Sch. of Eng'g Lemelson-MIT Program, http://web.mit.edu/invent/iow/frysilver.html (last visited Oct. 28, 2011).
194. Harold Evans et al., They Made America 97 (2004).
195. Goodyear rejected the notion that this was an accident, saying that "[l]ike the falling of an apple, it was suggestive of an important fact to one whose mind was previously prepared to draw an inference." Id. at 98. Nonetheless, despite his years of experiments, Goodyear's success came not from one of those experiments but from chance.
196. Wilson Greatbatch, The Making of the Pacemaker: Celebrating a Lifesaving Invention 30 (2000)
197. Johnson, supra note 2, at 135-136
198. Top 10 Accidental Inventions: No. 2-Pacemaker, Sci. Channel, http://science.discovery.com/brink/top-ten/accidental-inventions/inventions-02.html (last visited Oct. 28, 2011).
199. Johnson, supra note 2, at 134-135.
200. Note, however, that despite the serendipity of Daguerre's invention, he shares credit for the invention of the photograph with independent inventor William Henry Fox Talbot, and both were in fact predated by other, cameraless means of reproduction.
201. Randy Kennedy, An Image Is a Mystery for Photo Detectives, N.Y. Times, Apr. 17, 2008, at E1.
202. For additional examples, including dynamite, the phonograph, X-rays, Teflon, and Velcro
203. Dean Keith Simonton, Origins of Genius: Darwinian Perspectives on Creativity 35-36 (1999)
204. Paul Thagard & David Croft, Scientific Discovery and Technological Innovation: Ulcers, Dinosaur Extinction, and the Programming Language Java, in Model-Based Reasoning in Scientific Discovery 125, 126 (Lorenzo Magnani et al. eds., 1999).
205. David Owen, Copies in Seconds 89 (2004).
206. Mort, supra note 138, at 49.
207. Id. at 49-52.
208. That work includes Villarsy's work on revealing electrostatically recorded images in 1780s, id. at 49, 60, and physicist Paul Selenyi's experiments with "electrography" in the 1920s and 1930s, which paralleled Carlson's work and which Carlson credited as inspirational, id. at 49-52.
209. Id. at 1-3+49+60.
210. Id. at 194
211. id. at 194-203 (comparing the development of xerography with the development of other famous inventions).
212. Id. at 49.
213. Id. at 196.
214. Id. at 70.
215. Owen, supra note 149, at 89.
216. Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 Tex. L. Rev. 989, 996-997 (1997) [hereinafter Lemley, Economics of Improvement]
217. Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Tex. L. Rev. 1031 (2005) [hereinafter Lemley, Free Riding].
218. Lemley, Free Riding, supra note 158, at 1058-59.
219. For discussion of the economics of these costs, see, for example
220. William D. Nordhaus, Invention, Growth and Welfare: A Theoretical Treatment of Technological Change 70-90 (1969)
221. F.M. Scherer & David Ross, Industrial Market Structure and Economic Performance 613-30 (3d ed. 1990) (documenting patent holders pricing in excess of cost)
222. Robert P. Merges & Richard R. Nelson, On the Complex Economics of Patent Scope, 90 Colum. L. Rev. 839 (1990).
223. Michael Abramowicz & John F. Duffy, The Inducement Standard of Patentability, 120 Yale L.J. 1590 (2011)
224. John F. Duffy, A Timing Approach to Patentability, 12 Lewis & Clark L. Rev. 343 (2008).
225. Vermont, supra note 138.
226. While the inventions I described in Part I are not "obvious" to the layman, the fact that scientists working in the field achieved those inventions at about the same time is evidence that they are obvious in a legal sense. But there is room in the legal standard for nonobvious inventions to be straightforward to a few people of extraordinary skill, so long as the ordinary scientist could not have achieved them. See generally supra Part I.
227. Love, supra note 25.
228. Lemley, Economics of Improvement, supra note 158
229. Merges & Nelson, supra note 159.
230. Jonathan M. Barnett, Intellectual Property as a Law of Organization, 84 S. Cal. L. Rev. 785, 819-821 (2011)
231. Dan L. Burk & Brett H. McDonnell, The Goldilocks Hypothesis: Balancing Intellectual Property Rights at the Boundary of the Firm, 2007 U.Ill. L. Rev. 575, 588.
232. Barnett, supra note 165.
233. Mark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights, 61 Stan. L. Rev. 311, 335-337 (2008) [hereinafter Lemley, Surprising Virtues] (arguing that trade secrets serve the same purpose).
234. Boldrin & Levine, supra note 103, at 15.
235. A growing literature suggests that external incentives are not the primary driver of invention.
236. Jeanne C. Fromer, Expressive Incentives in Intellectual Property, 98 Va. L. Rev. (forthcoming 2012) [hereinafter Fromer, Expressive Incentives], available at http://www.law.stanford.edu/display/images/dynamic/events_media/Expressive_Incentives_in_Intellectual_Property.pdf
237. Eric E. Johnson, Intellectual Property and the Incentive Fallacy, 39 Fla. St. U. L. Rev. (forthcoming 2012), available at http://ssrn.com/abstract=1746343.
238. Joseph Schumpeter famously distinguished between invention-the development of a new idea-and innovation, which is the implementation of that idea in practical form.
239. Joseph A. Schumpeter, Capitalism, Socialism, and Democracy 84 (5th ed. 1976).
240. Richard R. Nelson & Sidney G. Winter, An Evolutionary Theory of Economic Change 263 (1982)
241. Oren Bar-Gill & Gideon Parchomovsky, Essay, A Marketplace for Ideas?, 84 Tex. L. Rev. 395, 398 (2005)
242. Thomas M. Jorde & David J. Teece, Innovation, Cooperation, and Antitrust, in Antitrust, Innovation, and Competitiveness 47, 48-49 (Thomas M. Jorde & David J. Teece eds., 1992).
243. Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129 (2004) [hereinafter Lemley, Ex Ante].
244. Edmund W. Kitch, The Nature and Function of the Patent System, 20 J.L. & Econ. 265, 275-80 (1977).
245. Michael Abramowicz, The Danger of Underdeveloped Patent Prospects, 92 Cornell L. Rev. 1065 (2007)
246. F. Scott Kieff, Property Rights and Property Rules for Commercializing Inventions, 85 Minn. L. Rev. 697 (2001).
247. Michael Abramowicz & John F. Duffy, Intellectual Property for Market Experimentation, 83 N.Y.U. L. Rev. 337 (2008).
248. Ted Sichelman, Commercializing Patents, 62 Stan. L. Rev. 341, 345 (2010).
249. Benjamin N. Roin, Unpatentable Drugs and the Standards of Patentability, 87 Tex. L. Rev. 503, 557-558 (2009).
250. The logic of Abramowicz and Duffy's proposal also points in that direction, though they do not go that far.
251. Lemley, Economics of Improvement, supra note 158, 1048-1058
252. Lemley, Free Riding, supra note 158
253. Merges & Nelson, supra note 159, at 871-875.
254. F.A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519, 524 (1945).
255. Lemley, Ex Ante, supra note 171, at 134-137.
256. The classic argument cited in favor of monopolists coordinating innovation is Schumpeter's Capitalism, Socialism, and Democracy. See Schumpeter, supra note 170, at 106. For an application to patent law, see Kieff, supra note 173, and Kitch, supra note 172. Cf. Suzanne Scotchmer, Protecting Early Innovators: Should Second-Generation Products Be Patentable?, 27 RAND J. Econ. 322 (1996) (suggesting that incentives be weighted toward pioneers).
257. To be fair, Kitch and Sichelman may be arguing not for the existing patent system, but for some hypothetical different system that might serve their ends. But the fact that today's patent law doesn't serve that end means that they can't point to it to explain the commercialization we have seen without the broader patents they envision.
258. In the late 1990s the average delay was 2.77 years.
259. John R. Allison & Mark A. Lemley, Who's Patenting What? An Empirical Exploration of Patent Prosecution, 53 Vand. L. Rev. 2099, 2101 (2000). And it has increased significantly since then.
260. Ron D. Katznelson, The Perfect Storm of Patent Reform? (Nov. 7, 2008), available at http://works.bepress.com/rkatznelson/54.
261. As Michael Burstein observes, commercialization theories often focus on the putative benefits of patents for commercialization, but "generally do not take account of the dynamic social costs that accompany intellectual property." Michael J. Burstein, Exchanging Information Without Intellectual Property 1 (unpublished manuscript) (on file with author).
262. Morton I. Kamien & Nancy L. Schwartz, Market Structure and Innovation 29-30 (1982)
263. Kenneth J. Arrow, Economic Welfare and the Allocation of Resources for Invention, in The Rate and Direction of Inventive Activity 609, 620 (Nat'l Bureau of Econ. Research ed., 1962), reprinted in 5 Collected Papers of Kenneth J. Arrow 104, 115-17 (1985).
264. F.M. Scherer, Invention and Innovation in the Watt-Boulton Steam-Engine Venture, 6 Tech. & Culture 165, 174 (1965).
265. In a letter, Watt wrote that "it [is] now full time to cease attempting to invent new things, or to attempt anything which is attended with any risk of not succeeding .... Let us go on executing the things we understand ...." Id.
266. Arthur A. Bright Jr., The Electric-Lamp Industry: Technological Change and Economic Development from 1800 to 1947, at 91-92+122 (1949).
267. Nelson & S Winter, supra note 170, at 279 (stating that large firm structure may be inimical to radical innovation).
268. Rebecca S. Eisenberg, Patents and the Progress of Science: Exclusive Rights and Experimental Use, 56 U. Chi. L. Rev. 1017, 1072-1073 (1989)
269. The risk that the parties will be unable to agree on terms for a license is greatest when subsequent researchers want to use prior inventions to make further progress in the same field in competition with the patent holder, especially if the research threatens to render the patented invention technologically obsolete.
270. A Lemley, Economics of Improvement, supra note 158, at 1048-1072(Offering a variety of reasons why granting exclusive control to pioneers is inefficient)
271. Robert Merges, Intellectual Property Rights and Bargaining Breakdown: The Case of Blocking Patents, 62 Tenn. L. Rev. 75 (1994) [hereinafter Merges, Blocking Patents]
272. Merges & Nelson, supra note 159.
273. Eric von Hippel, The Sources of Innovation 131-207 (1988)
274. Robert P. Merges, Commentary, Rent Control in the Patent District: Observations on the Grady- Alexander Thesis, 78 Va. L. Rev. 359, 381 (1992) [hereinafter Merges, Rent Control].
275. Donald G. McFetridge & Douglas A. Smith, Patents, Prospects, and Economic Surplus: A Comment, 23 J.L. & Econ. 197, 198 (1980)
276. John F. Duffy, The Marginal Cost Controversy in Intellectual Property, 71 U. Chi. L. Rev. 37, 53-54 (2004) (noting this problem).
277. Carlson invented xerography in 1938, Mort, supra note 138, at 53, but the Xerox 914 copier was not marketed until 1959, id. at 66-69.
278. Mary Bellis, The History of Penicillin, About.com, http://inventors.about.com/od/pstartinventions/a/Penicillin.htm (last visited Oct. 28, 2011).
279. A Brown, supra note 141, at 106-121
280. Macfarlane, supra note 141, at 9.
281. Bright Jr., supra note 186, at 138-139
282. Lea Shaver, Illuminating Innovation (unpublished manuscript) (on file with author).
283. Bright Jr., supra note 186, at 122.
284. News Release, Stanford University, supra note 106.
285. Frost, supra note 102, at 88-91.
286. S. Patent No. 174,465, col. 1 ll. 4-5 (filed Feb. 14, 1876).
287. Charlotte Gray, Reluctant Genius: Alexander Graham Bell and the Passion for Invention 129 (2006).
288. News Release, Stanford University, supra note 106.
289. Id.
290. Id.
291. Id.
292. Merges, Blocking Patents, supra note 188, at 86 n.42.
293. See supra notes 86-99 and accompanying text.
294. RAND researcher Paul Baran proposed an early design idea for the internet to AT&T in the early 1960s. Resistance to his design was strongest from AT&T. As John Naughton reports, Baran recalls one particularly telling instance of AT&T's opposition: [AT&T's] views were once memorably summarised in an exasperated outburst from AT&T's Jack Osterman after a long discussion with Baran. "First," he said, "it can't possibly work, and if it did, damned if we are going to allow the creation of a competitor to ourselves.".
295. John Naughton, A Brief History of the Future: From Radio Days to Internet Years in a Lifetime 106-107 (2000)
296. Katie Hafner & Matthew Lyon, Where Wizards Stay Up Late: The Origins of the Internet 52-66 (1996).
297. The second strand of commercialization theory might avoid this problem by giving a different patent to each commercial implementation, but only in the more extreme form advocated by Benjamin Roin, which divorces patents entirely from invention. 208. See Merges & Nelson, supra note 159, at 891-93 (noting Marconi's successful effort to hold up development of the triode until the U.S. Navy stepped in to mandate creation of a patent pool).
298. Boldrin & Levine, supra note 103, at 1-2.
299. While more recent research has cast doubt on Boldrin and Levine's claim that the patents themselves directly suppressed improvements, that research suggests an alternative form of the same basic story: Watt and Boulton stuck with an inefficient technology, and improvements occurred only because others sought to design around that patented technology.
300. Selgin & Turner, supra note 30.
301. Mossoff, supra note 54.
302. As I have observed, [t]he sum of all these stories is rather remarkable: for one reason or another, the basic building blocks of what might be called the enabling technologies of the twentieth century-the computer, software, the Internet, and biotechnology-all ended up in the public domain. Whether through a policy decision, a personal belief, shortsightedness, government regulation, or invalidation of the patent, no one ended up owning the core building blocks of these technologies during their formative years.
303. This does not mean that there were no patents in these fields, or even that there were no major patents-far from it. But the patents that were obtained and enforced in these fields tended to cover implementations of or improvements to the basic building-block technologies. If patents were granted on the basic building blocks, it was often only after decades oflitigation over inventorship... .... [T]he fact that previous enabling technologies were not generally patented may be thought a happy accident for innovation-or at the very least for follow-on improvers who commercialized particular implementations of these technologies and then patented those implementations.
304. Mark A. Lemley, Patenting Nanotechnology, 58 Stan. L. Rev. 601, 613+620 (2005).
305. Steven Johnson argues that any new technology takes ten years to develop and another ten years to be accepted. See Johnson supra note 2, at 13-14. But that is a description of a few examples, and hardly an inevitable rule of technological development.
306. Dan L. Burk & Mark A. Lemley, The Patent Crisis and How the Courts Can Solve It 80-81 (2009).
307. For discussions of particular industries in which competition appears to spur innovation
308. Mark A. Lemley & Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, 48 UCLA L. Rev. 925, 960-962 (2001) (the internet)
309. Arti Kaur Rai, Evolving Scientific Norms and Intellectual Property Rights: A Reply to Kieff, 95 Nw. U. L. Rev. 707, 709-710 (2001) (biotechnology)
310. Howard A. Shelanski, Competition and Deployment of New Technology in U.S. Telecommunications, 2000 U. Chi. Legal F. 85, 85 (telecommunications).
311. Merges & Duffy, supra note 69, at 4-5.
312. Eldred v. Ashcroft, 537 U.S. 186, 225 (2003) (Stevens, J., dissenting) (referring to a patent as a "quid pro quo" for disclosure); Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979) (identifying the "promot[ion of] disclosure of inventions" as a key function of the patent system).
313. Jeanne C. Fromer, Patent Disclosure, 94 Iowa L. Rev. 539, 542 (2009) [hereinafter Fromer, Patent Disclosure]
314. Lisa Larrimore Ouellette, Do Patents Disclose Useful Information?, 25 Harv. J.L. & Tech. (forthcoming 2012), available at http://ssrn.com/abstract=1762793.
315. Brett M. Frischmann & Mark A. Lemley, Spillovers, 107 Colum. L. Rev. 257 (2007).
316. Alan Devlin, The Misunderstood Function of Disclosure in Patent Law, 23 Harv. J.L. & Tech. 401, 403 (2010)
317. Note, The Disclosure Function of the Patent System (or Lack Thereof), 118 Harv. L. Rev. 2007, 2025-26 (2005). Even supporters of disclosure theory like Fromer acknowledge that "a good deal of evidence suggests that technologists do not find [that patents] contain[] pertinent information for their research." Fromer, Patent Disclosure, supra note 215, at 560. Brenner v. Manson, 383 U.S. 519, 534 (1966), noted the Court's concern with this problem nearly half a century ago; the majority and dissent disagreed over the import of arguments "that disclosure induced by allowing a patent is partly undercut by patent-application drafting techniques." Id. at 538 (Harlan, J., concurring in part and dissenting in part).
318. Ouellette, herself a believer in the value of disclosure, nonetheless reports that most scientists do not find a patent disclosure sufficient to allow one of skill in the art to reproduce the patented invention. See Ouellette, supra note 215 (manuscript at 37).
319. The patent office receives more than 500,000 applications a year. U.S. Patent Statistics Chart: Calendar Years 1963-2010, supra note 3. As a result, examiners have little time to devote to any one application.
320. Mark A. Lemley, Doug Lichtman & Bhaven Sampat, What to Do About Bad Patents, REGULATION, Winter 2005, at 10.
321. As noted above, the key telephone patents issued in a matter of months, sometimes in as few as two months. See Hounshell, Two Paths, supra note 63, at 162 (Bell's patent was issued three weeks after filing). In contrast, by the 1990s patent applications took 2.77 years to issue on average, and this delay is only increasing. See supra note 182.
322. See U.S. Patent Statistics Chart Calendar Years 1963-2010, supra note 3 (showing that more than 450,000 applications were filed in each year from 2007 to 2009).
323. On the problems with the PTO classification system
324. Allison & S Lemley, supra note 182, at 2114.
325. Mark A. Lemley & Ragesh K. Tangri, Ending Patent Law's Willfulness Game, 18 Berkeley Tech. L.J. 1085, 1100-1101 (2003)
326. Doug Lichtman, Substitutes for the Doctrine of Equivalents: A Response to Meurer and Nard, 93 Geo. L.J. 2013, 2023 & n.42 (2005).
327. The problem of willful infringement has generally been thought to have diminished since In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc), but a surprising number of cases still find willfulness. Christopher B. Seaman, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study, 97 Iowa L. Rev. (forthcoming 2012) (manuscript at 26 tbl.2), available at http://works.bepress.com/christopher_seaman/6/ (finding that willfulness findings dropped only from 48.2 to 37.4 percent after Seagate, and that this change was not statistically significant).
328. See, e.g., Lichtman, supra note 223, at 2023 & n.42 ("[V]ery few people read patents outside of the litigation and licensing contexts."); Note, supra note 217, at 2019-20 ("[M]any innovators have ceased using patents as a research tool ...."). But see Ouellette, supra note 215 (manuscript at 61) (arguing that patents can be surprisingly useful sources of technical information, in part because online searching makes them more accessible).
329. Even a leading defender of current disclosure theory, Lisa Ouellette, does not go so far as to argue that disclosure theory is a valid justification for the patent system. Ouellette, supra note 215 (manuscript at 1). She makes no attempt to measure the social cost of patents or to compare the two, instead arguing only that if we already have a patent system, we are better off with one that requires disclosure because it may promote some learning. Id. (manuscript at 5). That may be true, but, as she acknowledges, it is not a freestanding justification for a patent system.
330. Three major cross-sectional surveys of inventors and R&D managers find that they are much more likely to turn to the patent system to protect self-disclosing than non-selfdisclosing inventions.
331. Ashish Arora et al., R&D and the Patent Premium, 26 Int'l J. Indus. Org. 1153 (2008)
332. Wesley M. Cohen et al., R&D Spillovers, Patents and the Incentives to Innovate in Japan and the United States, 31 Res. Pol'y 1349, 1350 (2002)
333. Richard C. Levin et al., Appropriating the Returns from Industrial Research and Development, 1987 Brookings Papers on Econ. Activity 783 (all finding that patents are less important in technologies like process manufacturing that are easier to keep secret)
334. For a theoretical explanation of why this might be so
335. Katherine J. Strandburg, What Does the Public Get? Experimental Use and the Patent Bargain, 2004 Wis. L. Rev. 81, 107-111.
336. Lemley, Surprising Virtues, supra note 167, at 332-337.
337. Arrow, supra note 184, at 615 (arguing that sellers will not disclose information to buyers absent legal protection, and so buyers will be unable to value that information). There is substantial literature on patents as a way out of Arrow's paradox.
338. James J. Anton & Dennis A. Yao, Expropriation and Inventions: Appropriable Rents in the Absence of Property Rights, 84 Am. Econ. Rev. 190, 190-192 (1994)
339. Paul J. Heald, Transaction Costs and Patent Reform, 23 Santa Clara Computer & High Tech. L.J. 447, 453-454 (2007)
340. Robert P. Merges, A Transactional View of Property Rights, 20 Berkeley Tech. L.J. 1477 (2005)
341. Robert P. Merges, Intellectual Property and the Costs of Commercial Exchange: A Review Essay, 93 Mich. L. Rev. 1570, 1590 (1995)
342. Reviewing Peter A. Alces & Harold F. See, The Commercial Law of Intellectual Property (1994)) (noting the importance of contract law in intellectual property exchanges). But see Burstein, supra note 183, at 2 (arguing that we don't need patents to solve Arrow's Information Paradox, because structured disclosure of information and various other appropriability mechanisms can enable contracting).
343. Licensing of the patents themselves cannot alone justify a patent system, for there would be no need to license patents if patent rights didn't exist. 230. Cotropia & Lemley, supra note 11, at 1459.
344. Lemley, Ignoring Patents, 2008 Mich. St. L. Rev. 19, 19-20 [hereinafter Lemley, Ignoring Patents].
345. L. Kamran Bilir, Patent Laws, Product Lifecycle Lengths, and the Global Sourcing Decisions of U.S. Multinationals, Univ. of Wis.-Madison (July 5, 2011), http://www.ssc.wisc.edu/~kbilir/Bilir_IP_and_MNCs.pdf.
346. Lemley, Ignoring Patents, supra note 231, at 32-34.
347. Other, noneconomic theories of patent law are hard to take too seriously. For a discussion of reward-based theories of scientific invention stemming from natural law
348. Samuel Oddi, Un-Unified Economic Theories of Patents-The Not-Quite-Holy Grail, 71 Notre Dame L. Rev. 267, 275-277 (1996)
349. Kevin Rhodes, Comment, The Federal Circuit's Patent Nonobviousness Standards: Theoretical Perspectives on Recent Doctrinal Changes, 85 Nw. U. L. Rev. 1051, 1077-1084 (1991).
350. Lawrence C. Becker, Deserving To Own Intellectual Property, 68 Chi.-Kent L. Rev. 609, 609 (1993)
351. Arguing that desert-based arguments for patent law are intuitively appealing but do not necessarily justify the scope of current patent doctrine). Part of the reason is that patent law prohibits not just copying but also independent development. Indeed, the vast majority of patent lawsuits are filed against independent developers.
352. Cotropia & Lemley, supra note 11, at 1459.
353. Jeanne Fromer argues persuasively that inventors are often incented by rewards other than money, like prestige. See Fromer, Expressive Incentives, supra note 169. But that is a justification for giving them those other sorts of rewards, not for giving them exclusive rights.
354. F.M. Scherer, Book Review, Michele Boldrin and David K. Levine: Against Intellectual Property, 20 Const. Pol. Econ. 94, 97 (2009) (reviewing Boldrin & Levine, supra note 103).
355. This was possible because patents in the 1880s issued quickly after filing. Bell's telephone patent issued a mere three weeks after he filed it. U.S. Patent No. 174,465 (filed Feb. 14, 1876) (issued Mar. 7, 1876).
356. Hounshell, Two Paths, supra note 63, at 162.
357. Patents in the lighting field issued between two and seven months after filing. In addition, at the time inventors could file what was known as a "caveat," indicating that they were working in an area and asking to be notified if anyone else filed a patent application in that field.
358. See Patent Act of 1870, ch. 230, § 40, 16 Stat. 198, 203-04 (codified at Revised Statutes of the United States § 4902 (1878)) (repealed 1910). Caveats were discontinued in 1910. Act of June 25, 1910, ch. 414, 36 Stat. 843. By contrast, by the late 1990s the pendency rate was an average of 2.77 years, and it has gone up substantially since then. See supra note 182. While most applications are published after eighteen months, even an inventor who reads those applications would find it difficult today to know what competitors are doing in anything like real time. 237. See The Telephone Cases, 126 U.S. 1, 77-81 (1888) (reproducing Gray's caveat of February 14, 1876).
359. Lakwete, supra note 38, at 55.
360. Read the Document that Started a Revolution, supra note 138.
361. Vermont, supra note 138, at 478-479.
362. For the standard economic analysis of patent races
363. Jean Tirole, The Theory of Industrial Organization 394-399 (1988)
364. Yoram Barzel, Optimal Timing of Innovations, 50 Rev. Econ. & Stat. 348, 352 n.11 (1968)
365. Partha Dasgupta & Joseph Stiglitz, Uncertainty, Industrial Structure, and the Speed of R&D, 11 Bell J. Econ. 1 (1980)
366. McFetridge & Smith, supra note 190, at 198.
367. Partha Dasgupta, The Economic Theory of Technology Policy: An Introduction, in Economic Policy and Technological Performance 7, 21 (Partha Dasgupta & Paul Stoneman eds., 1987)
368. The winner-takes-all form of compensation to research units ... encourages excessive R&D investment and excessive risk-taking on the part of R&D units competing for the prize.").
369. Mark F. Grady & Jay I. Alexander, Patent Law and Rent Dissipation, 78 Va. L. Rev. 305, 306 (1992) (discussing the costs of patent races)
370. Jennifer F. Reinganum, The Timing of Innovation: Research, Development, and Diffusion, in 1 Handbook of Industrial Organization 849 (Richard Schmalensee & Robert D. Willig eds., 1989) (discussing the costs of patent races)
371. Suzanne Scotchmer, Incentives To Innovate, in 2 The New Palgrave Dictionary of Economics and the Law 273, 275 (Peter Newman ed., 1998)
372. The literature has produced two views of patent races: that they inefficiently duplicate costs, and that they efficiently encourage higher aggregate investment.")
373. Pankaj Tandon, Rivalry and the Excessive Allocation of Resources to Research, 14 Bell J. Econ. 152 (1983) (lamenting the excessive duplication of research)
374. Matthew Erramouspe, Comment, Staking Patent Claims on the Human Blueprint: Rewards and Rent-Dissipating Races, 43 UCLA L. Rev. 961, 962 (1996)
375. Although a gold rush has its winners, many claims are ultimately unproductive, and thus many prospectors waste valuable resources and go unrewarded. Gold rushes are also unproductive in [that] ... [f]ollow-on prospectors bid resources away from higher valued uses outside the prospecting industry to lower valued uses inside it.").
376. Douglas Lichtman et al., Strategic Disclosure in the Patent System, 53 Vand. L. Rev. 2175, 2177 (2000) (discussing the strategic disclosure of information by participants in patent races)
377. Gideon Parchomovsky, Publish or Perish, 98 Mich. L. Rev. 926, 929-930 (2000) (discussing the strategic disclosure of information by participants in patent races).
378. Michael Abramowicz discusses the literature in The Uneasy Case for Patent Races over Auctions, 60 Stan. L. Rev. 803 (2007).
379. Louis Kaplow, The Patent-Antitrust Intersection: A Reappraisal, 97 Harv. L. Rev. 1813, 1869 (1984).
380. Indeed, Yoram Barzel analogizes patent races to tragedies of the commons because they involve "overuse" of research. Barzel, supra note 241.
381. William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 18 (2003)
382. Grady & Alexander, supra note 241, at 317
383. Vermont, supra note 138, at 491. Suzanne Scotchmer claims that "the firms in the patent race make zero profit in expectation" because it has all been dissipated by wasteful efforts to win the race.
384. Suzanne Scotchmer, Ideas and Innovations: Which Should Be Subsidized?, Soc. Sci. Res. Network (Jan. 11, 2011), http://ssrn.com/abstract=1755091.
385. Kitch, supra note 172, at 269-270.
386. Christopher A. Cotropia, The Folly of Early Filing in Patent Law, 61 Hastings L.J. 65, 127-128 (2009).
387. John F. Duffy, Rethinking the Prospect Theory of Patents, 71 U. Chi. L. Rev. 439, 444-445 (2004).
388. Duffy refers to his theory as a branch of prospect theory, but in fact it is not only distinct from but decidedly at odds with prospect theory's hostility to patent races.
389. Giovanni De Fraja, Strategic Spillovers in Patent Races, 11 Int'l J. Indus. Org. 139, 140 (1993) (recognizing the possibility of "asymmetric equilibria")
390. Jennifer F. Reinganum, A Dynamic Game of R and D: Patent Protection and Competitive Behavior, 50 Econometrica 671, 671 (1982).
391. Merges, Rent Control, supra note 189, at 381. Courts and commentators have recognized the value of different approaches in another related context: efforts to design around an existing patent. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 36 (1997) (contrasting "the intentional copyist making minor changes to lower the risk of legal action" with "the incremental innovator designing around the claims, yet seeking to capture as much as is permissible of the patented advance"); see also Slimfold Mfg. Co. v. Kinkead Indus., Inc., 932 F.2d 1453, 1457 (Fed. Cir. 1991) ("Designing around patents is, in fact, one of the ways in which the patent system works to the advantage of the public in promoting progress in the useful arts, its constitutional purpose.").
392. State Indus., Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed. Cir. 1985) ("One of the benefits of a patent system is its so-called 'negative incentive' to 'design around' a competitor's products, even when they are patented, thus bringing a steady flow of innovations to the marketplace.").
393. Matthew J. Conigliaro et al., Foreseeability in Patent Law, 16 Berkeley Tech. L.J. 1045, 1050 (2001)
394. Craig Allen Nard, A Theory of Claim Interpretation, 14 Harv. J.L. & Tech. 1, 40-41 (2000)
395. The practice of designing-around extant patents creates viable substitutes and advances, resulting in competition among patented technologies. The public clearly benefits from such activity.").
396. See Arrow, supra note 184, at 115; see also Kamien & Schwartz, supra note 184, at 104; Scherer & Ross, supra note 159, at 660 (criticizing Schumpeter's "less cautious" followers for advocating monopoly to promote innovation); Lemley & Lessig, supra note 213, at 960-62 (arguing that the internet is as innovative as it is because its architecture required competition rather than monopoly bottlenecks); Shelanski, supra note 213, at 85 (finding that competition is better correlated with innovation than is monopoly in ten empirical studies in the telecommunications industry).
397. Aamir Rafique Hashmi, Competition and Innovation: The Inverted-U Relationship Revisited, Soc. Sci. Res. Network (Feb. 15, 2011), http://ssrn.com/abstract=1762388 (finding strong evidence of a positive relationship between competition and innovation).
398. Indeed, a review of the economic literature indicates that competition even makes monopolists more efficient.
399. Thomas J. Holmes & James A. Schmitz Jr., Competition and Productivity: A Review of Evidence, 2010 Ann. Rev. Econ. 619, 620-621.
400. Vermont, supra note 138, at 478 (suggesting that valuable inventions that are independently developed likely would have been developed even without a patent incentive).
401. Studies of actual physical races suggest that participants go faster and last longer when they run in the presence of another competitor, even if they are not explicitly trying to beat that competitor. Matt Fitzgerald, Why You Shouldn't "Run Your Own Race", Competitor (Apr. 9, 2011, 11:21 AM), http://running.competitor.com/2011/04/training/why-you-shouldn%E2%80%99t-%E2%80%9Crun-your-own-race%E2%80%9D_24463. So there may be psychological and even physiological reasons why we are hardwired to perform better when competing against others.
402. Fromer, Expressive Incentives, supra note 169 (manuscript at 44-46) (arguing that we should focus on what actually motivates people).
403. Dennis D. Crouch, The Patent Lottery: Exploiting Behavioral Economics for the Common Good, 16 Geo. Mason L. Rev. 141, 142-143 (2008)
404. F.M. Scherer, The Innovation Lottery, in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society 3, 3 (Rochelle Cooper Dreyfuss et al. eds., 2001).
405. Wolfgang Leininger describes the patent system as a sort of "all pay" auction in which both winners and losers must pay, but only the highest bidder wins.
406. Wolfgang Leininger, Escalation and Cooperation in Conflict Situations: The Dollar Auction Revisited, 33 J. Conflict Resol. 231, 233 (1989).
407. In September 2011, Congress passed the Leahy-Smith America Invents Act. That Act moved the United States from a first-to-invent to a modified first-to-file system, effective with patent applications filed in March 2013. It also created a prior user right that applies to process inventions. Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011).
408. Cotropia & Lemley, supra note 11, at 1459.
409. For arguments regarding various forms of market sharing with simultaneous inventors
410. Stephen M. Maurer & Suzanne Scotchmer, The Independent Invention Defence in Intellectual Property, 69 Economica 535 (2002)
411. Carl Shapiro, Prior User Rights, 96 Am. Econ. Rev. (Papers & Procs.) 92 (2006)
412. Vermont, supra note 138. 257. Economists refer to this as the "competitive threat."
413. John Beath et al., Strategic R & D Policy, 99 Econ. J. 74, 74 (1989)
414. Vincenzo Denicolò & Luigi A. Franzoni, On the Winner-Take-All Principle in Innovation Races, 8 J. Eur. Econ. Ass'n 1133, 1143 (2010) ("[One] advantage of the winner-take-all system is that it maximizes the competitive threat for any given level of the aggregate award ....").
415. Crouch, supra note 253, at 141
416. Scherer, supra note 253, at 15-19.
417. Denicolò & Franzoni, supra note 257.
418. Roin, supra note 176, at 545.
419. See, e.g., Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1380 n.4 (Fed. Cir. 1986). For discussion of the role of simultaneous invention in obviousness
420. Mark A. Lemley, Should Patent Infringement Require Proof of Copying?, 105 Mich. L. Rev. 1525, 1534-1535 (2007).
421. Lemley, Economics of Improvement, supra note 158.
422. Stuart J.H. Graham et al., High Technology Entrepreneurs and the Patent System: Results of the 2008 Berkeley Patent Survey, 24 Berkeley Tech. L.J. 1255 (2009).
423. Crouch, supra note 253
424. Scherer, supra note 253.
425. Fromer, Expressive Incentives, supra note 169
426. Diane Leenheer Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 Theoretical Inquiries L. 29, 42-54 (2011).
427. Burk & Lemley, supra note 212, ch. 6.
428. 35 U.S.C. § 103(a) (2006) ("Patentability shall not be negatived by the manner in which the invention was made."). This section was recently amended by section 3(c) of the Leahy-Smith America Invents Act, Pub. L. No. 112-29, § 3(c), 125 Stat. 284, 287 (2011) (to be codified at 35 U.S.C. § 103). This amendment will go into effect in 2012. See id. § 35.
429. Fromer, Expressive Incentives, supra note 169.
430. Lichtman et al., supra note 241
431. Parchomovsky, supra note 241.
432. Burk & Lemley, supra note 212.