Overly Broad Patents

I talked a few days ago about software patents, and that one of the problems with software patents is that they're frequently overly broad, giving patent-holders fairly excessive power to sue similar, independent inventions. It turns out that this may not be an at all new phenomenon.

Reading through Mark A. Lemley's paper "The Myth of the Sole Inventor," this problem seems to have existed since the beginning of the patent system, and fairly describes many famous inventions.

For one, Lemley notes that the invention of the steamboat was by no means the sole work of Robert Fulton, who ultimately received the patent. Instead:

While Robert Fulton is acknowledged by the popular imagination as the inventor of the steamboat, in fact the historical evidence suggests that many different people developed steamboats at about the same time. Indeed, in the aftermath of the Revolutionary War, when the
Articles of Confederation left patent rights to the states, different states issued patents to different claimants to the steamboat. The conflict between these inventors over patent rights issued by different states was one of the driving forces of assigning patent rights to the federal government in the U.S. constitution.

Fulton is remembered as the inventor of the steamboat primarily because he was successful in writing a broad patent to cover it, albeit one patented decades after other claimants.

A similar case can be seen with the telephone. Many separate inventors were working on transmitting sound via telegraph wire simultaneously, and most of the pieces necessary to make a telephone work were invented by others before Bell. We only remember Bell because he ultimately got the patent:

Bell‘s ultimate invention put together a transmitter, a fluctuating current, and a receiver. But so did others. Elisha Gray filed an application in the patent office on the same day as Bell, following on other Gray applications that predated Bell‘s, and their inventions were ultimately put into interference. The resulting case went to the United States Supreme Court, and the Court‘s opinion takes up an entire volume of U.S. Reports. Despite the fact that Gray‘s independent invention was different and in some ways better than Bell‘s, and despite the fact that Bell actually got his invention to work only in March 1876, well after his filing date, Bell won the case. The Court ruled for Bell despite the breadth of his patent claim, which covered any device "for transmitting vocal or other sounds ... by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds."

Similarly, George Seldon was granted an unfortunately broad patent in 1895 on the combination of an internal combustion engine with a four-wheel carriage, even though he didn't invent the internal combustion engine (merely created a lighter version of it) nor did he create the four wheel carriage, nor was he the first to combine the engine with a wheeled carriage. He made some significant design improvements, but others subsequently developed better designs, but he was nonetheless effective granted a patent on the automobile. It took an eight year long legal fight, for Henry Ford to finally have Seldon's patent invalidated in 1911.

The same goes with the invention of the airplane. Gliders had been developed before the wright brothers; the airfoiled wings they used were invented by Horatio Phillips; adding a tail for stability was developed by Alphonse Penaud.

The Wrights invented only a particular improvement to flying machines, albeit a critical one: they came up with a way of warping a wing to control the direction of flight while turning a rear rudder to counterbalance the effect of bending the wing, maintaining the stability of the plane. The Wrights solved the stability problem by having a single cable warp the wing and turn the rudder at the same time. Their patent, however, was not so limited, and they successfully asserted it against subsequent inventors such as Glenn Curtiss. Curtiss improved the design of the wing by using ailerons, movable portions of the wing that had been developed years before by a consortium of others, including Curtiss and Alexander Graham Bell. A frustrated Curtiss was reported to have said that the Wright brothers believed their patent was so broad that anyone who jumped up and down and flapped their arms infringed it.

In short, the Wrights made an important improvement on the existing flying machines, but were basically granted a patent that covered all engine-powered flying machines.

These examples don't exhaust the instances of overly broad patents, but the highlight the most famous examples, and show that issuing overly broad patents has long been an issue with patent law. One of the main flaws of a patent system is that it relies on human beings can err in ways that can be very expensive to correct.

I talked a few days ago about software patents, and that one of the problems with software patents is that they're frequently overly broad, giving patent-holders fairly excessive power to sue similar, independent inventions. It turns out that this may not be an at all new phenomenon.

Reading through Mark A. Lemley's paper "The Myth of the Sole Inventor," this problem seems to have existed since the beginning of the patent system, and fairly describes many famous inventions.

For one, Lemley notes that the invention of the steamboat was by no means the sole work of Robert Fulton, who ultimately received the patent. Instead:

While Robert Fulton is acknowledged by the popular imagination as the inventor of the steamboat, in fact the historical evidence suggests that many different people developed steamboats at about the same time. Indeed, in the aftermath of the Revolutionary War, when the
Articles of Confederation left patent rights to the states, different states issued patents to different claimants to the steamboat. The conflict between these inventors over patent rights issued by different states was one of the driving forces of assigning patent rights to the federal government in the U.S. constitution.

Fulton is remembered as the inventor of the steamboat primarily because he was successful in writing a broad patent to cover it, albeit one patented decades after other claimants.

A similar case can be seen with the telephone. Many separate inventors were working on transmitting sound via telegraph wire simultaneously, and most of the pieces necessary to make a telephone work were invented by others before Bell. We only remember Bell because he ultimately got the patent:

Bell‘s ultimate invention put together a transmitter, a fluctuating current, and a receiver. But so did others. Elisha Gray filed an application in the patent office on the same day as Bell, following on other Gray applications that predated Bell‘s, and their inventions were ultimately put into interference. The resulting case went to the United States Supreme Court, and the Court‘s opinion takes up an entire volume of U.S. Reports. Despite the fact that Gray‘s independent invention was different and in some ways better than Bell‘s, and despite the fact that Bell actually got his invention to work only in March 1876, well after his filing date, Bell won the case. The Court ruled for Bell despite the breadth of his patent claim, which covered any device "for transmitting vocal or other sounds ... by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds."

Similarly, George Seldon was granted an unfortunately broad patent in 1895 on the combination of an internal combustion engine with a four-wheel carriage, even though he didn't invent the internal combustion engine (merely created a lighter version of it) nor did he create the four wheel carriage, nor was he the first to combine the engine with a wheeled carriage. He made some significant design improvements, but others subsequently developed better designs, but he was nonetheless effective granted a patent on the automobile. It took an eight year long legal fight, for Henry Ford to finally have Seldon's patent invalidated in 1911.

The same goes with the invention of the airplane. Gliders had been developed before the wright brothers; the airfoiled wings they used were invented by Horatio Phillips; adding a tail for stability was developed by Alphonse Penaud.

The Wrights invented only a particular improvement to flying machines, albeit a critical one: they came up with a way of warping a wing to control the direction of flight while turning a rear rudder to counterbalance the effect of bending the wing, maintaining the stability of the plane. The Wrights solved the stability problem by having a single cable warp the wing and turn the rudder at the same time. Their patent, however, was not so limited, and they successfully asserted it against subsequent inventors such as Glenn Curtiss. Curtiss improved the design of the wing by using ailerons, movable portions of the wing that had been developed years before by a consortium of others, including Curtiss and Alexander Graham Bell. A frustrated Curtiss was reported to have said that the Wright brothers believed their patent was so broad that anyone who jumped up and down and flapped their arms infringed it.

In short, the Wrights made an important improvement on the existing flying machines, but were basically granted a patent that covered all engine-powered flying machines.

These examples don't exhaust the instances of overly broad patents, but the highlight the most famous examples, and show that issuing overly broad patents has long been an issue with patent law. One of the main flaws of a patent system is that it relies on human beings can err in ways that can be very expensive to correct.

Overly Broad Patents