The Myth of the Sole Inventor

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. But the canonical story of the lone genius inventor is largely a myth. Surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. The result is a real problem for classic theories of patent law. Our dominant theory of patent law doesn't seem to explain the way we actually implement that law.Maybe the problem is not with our current patent law, but with our current patent theory. But the dominant alternative theories of patent law don't do much better. Prospect theory-under which we give a patent early to one company so it can control research and development-makes little sense in a world in which ideas are in the air and are likely to be happened upon by numerous inventors at about the same time. And commercialization theory, which hypothesizes that we grant patents in order to encourage not invention but product development, seems to founder on a related historical fact: most first inventors turn out to be lousy commercializers who end up delaying implementation of the invention by exercising their rights.If patent law in its current form can be saved, we need an alternative justification for granting patents in circumstances of near-simultaneous invention. I offer another possibility: patent rights encourage patent races, and that might actually be a good thing. Patent racing cannot alone justify a patent system, but it may do more than any existing theory to explain how patents work in practice.IntroductionAny elementary school student can recite a number of canonical American invention stories. Thomas Edison invented the lightbulb from his famous home laboratory in Menlo Park, New Jersey. Alexander Graham Bell invented the telephone, again from his home invention laboratory, and famously used the phone to call his assistant, saying "Come here, Watson, I need you." Orville and Wilbur Wright invented the airplane from their bicycle shop, taking it to Kitty Hawk, North Carolina to put it in the air. The list of lone genius inventors goes on and on: Samuel Morse and his telegraph, Eli Whitney and his cotton gin, Robert Fulton and his steamboat, Philo Farnsworth and the television, and so on.Patent law is built around these canonical tales. First written in 1790, in the first year of Congress, the patent law betrays its individual-inventor bias at various points, from the requirement that patents always issue to individuals rather than to companies to the traditional rule that the first to invent, not the first to file, is entitled to the patent.1 More importantly, the very 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 by the lure of a patent. We deny patents on inventions that are "obvious" to ordinarily innovative scientists in the field. Our goal is to encourage extraordinary inventions-those that we wouldn't expect to get without the incentive of a patent.The canonical story of the lone genius inventor is largely a myth. Edison didn't invent the lightbulb; he found a bamboo fiber that worked better as a filament in the lightbulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of the United States Reports resolving the question of whether Bell could have a patent despite the fact that he hadn't actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk as a result of an improvement they made to a basic wing structure designed by others, but their plane didn't work very well. …