Evening star., 1944-07-16
,F'lush Of Genius Rule
Called Progress Curb
New Judicial Philosophy Held
Injurious to Inventors.
: BD J a r0r

~ =. n. OF.
The judicial philosophy creeping into
DECENTRALIZATION decisions y beginning
tt, cause grave concern to American In
dustry, evidcncing as II does q growing
tendency In the courts TO circumscribe
the protection afforded under the patent
laws, particularly In respect to dis
coveries that are the product Of orsan-
lied research
This development has been in the
making for the past two Of three yeGrs,
without attracting great deal of at
tention. Now, however, In viewing the
cumulative effect Of the successive rul-
ings which substantially weigh the
scales In favor Of the independent In
ventor, those interests with 4 tremen-
dous investment in the patent field are
wondering Just where the present
course will lead.
In the state OF the law right now, In
dutries may spend fortune to perfect
. device without the slightest assurance
Of its patentability. There is but one
answer to this In the opinion of = top
executive Of large Midwestern organi-
zation:
IT organized research Che says Is to
be denied patent protection, 1t will be
driven underground and inventions will
be held in secrecy, and, where large in
vestments are necessary, will not be
made at all. Venture capital will be
discouraged"
Critics lay primary responsibility for
this at the door Of the Supreme Court,
ascribing no little Of the danger they
foresee to the so-called flash Of genius"
doctrine enunciated by that court In an
opinion by Justice Douglas which held
that the patent for cigar lighting de-
vice had not been infringed because the
claimed invention failed to reveal the
flash Of creative genius but merely
reflected "the skill Of the calling" and
hence had not established Its right to
private grant on the public domain"
The extension Of this flash Of genius"
doctrine has been to raise drastically
the standard Of invention, and In the
relatively short while since Its promul-
cation, the principle has been RESPONSE
BILE for the lower court holding that dis
coveries which would amount to inven-
ton, II made by an independent in
ventor, are not inventive when made In
an organized research laboratory.
The second charge leveled at the SUI
preme Court is that it has increased the
restrictions on the use in any way OF q
patent which might decrease competi-
ton in the marketing OF unpatented
articles or materials.
On this point. the American Chemical
Society has this to say:
This has resulted in the substantial
limitation of the doctrine Of contribu-
tory infringement and seems to require
revision Of long-accepted business
practices in connection with patents"
The Court Of Appeals here, through
which much patent litigation is fun
neled, also is coming in for a large
share Of criticism for its part in the
new order" critics contending that
this tribunal has gone beyond the area
mapped by the Supreme Court in Inn
posing restrictions on industrial patents.
The local courts. it should be ex-
planned, occupy q unique place in patent
litigation, as equity actions (where the
patentability of an article is at issue)
must be instituted here unless the COM
missioner Of patents will accept service
In some other Jurisdiction.
Furthermore, IL the commissioner de-
nies an application for patent and is
upheld by the Court of Appeals, the
litigant. In all likelihood, is foreclosed
from further action. For the chance of
getting Supreme Court review unless
a matter of high public importance is
involved, is exceedingly slim. In such
cases, therefore. the appellate bench is
the court Of last resort, and it is for
that reason that the current Of thought
there is watched with intense interest
II not trepidation
Here the flash Of genius" theory has
taken a firm hold. and its application
given new twist that seems to pass
beyond even the limits Of the Supreme
Court ruling.
The Appeals Court took its stand in a
case known as Potts VS.. Coe, in which
Louis M. Potts, an employe of the Tele-
type Corp, an afiiliate of the Bell Sys-
tenn. sought patent covering an auto
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