Cracked Pokes Fun At Simultaneous Invention

from the patently-funny dept

It's no real secret that one of the many problems with the way patents work in the United States is what happens when two or more people produce the same invention independent of one another. Unfortunately, with the USPTO's seeming inability to judge what is obvious to those skilled in the arts and what isn't, the result is typically the guy who got the patent first wins. We've discussed before how inventions that are likely inevitable shouldn't be patented, as there's little progress to reward if the progress was simple eventuality. Still, recognition is sorely lacking for how common this kind of thing is.

So, when a popular (and hysterical) site like Cracked.com decides to dedicate one of their famous lists to 5 odd cases of simultaneous invention, including well-known inventions, we hope that injecting that into the common bloodstream gets people thinking. In the process, they get in a few digs at the patent process as well.

That's not necessarily how invention works. Aside from the fact that these scientists and inventors often work in teams, even those teams aren't working in a vacuum. They read the scientific literature, and attend conferences, and exchange correspondence with their peers, and in general absorb the thoughts and ideas of their day, thoughts and ideas accessible to everyone else. Indeed, it turns out that many of the biggest inventions and discoveries of all time haven't been made by a single person, but by many people, working more or less independently, in some cases barely finishing their research before they make comical sprints to the patent office, trousers hanging around their ankles.

Indeed. More over, it's not as though these are obscure, trivial inventions that you've never heard of. We're talking about things like the Polio Vaccine, the theory of relativity, and calculus. My personal favorite on the list is an invention hallmark, the telephone. It turns out that Alexander Graham Bell walked into the patent office not only on the same day as a guy named Elisha Gray, but with the intention of patenting a nearly identical invention.

What happens next is complicated. It involves lawyers, and shadowy visits to the patent office, and bribed patent clerks, and probably some great 19th century insults. The end result of it all being a huge controversy about whether Bell read Gray's preliminary patent paperwork and copied parts of his invention. Understand that this was all before either of the men got their damned inventions to work. Indeed, Bell's famous first words on the telephone occurred while he was testing a device that looked an awful lot like Gray's patent application.

The point isn't that Graham didn't contribute. It's that when two or more people invent the same thing simultaneously and independently of one another, the result shouldn't be one of those people getting the kind of monopoly that could result in gold-plated testicles for all the household pets while everyone else is relegated to polishing said testicles to make a little cash. That the patent system can't handle this kind of thing shows a clear flaw. One that hasn't been dealt with since before the telephone, apparently.

Filed Under: patents, simultaneous invention

Lawyer Points Out That Simultaneous Invention Can Get Patents Tossed

from the well,-it's-a-start dept

For years, we've pointed out how ridiculous it is that our patent system doesn't include an independent invention defense. It seems rather against the concept of promoting innovation to say that someone who invented something entirely independently should be barred from using his own invention just because someone else invented the same thing slightly earlier. Considering just how many major discoveries are discovered independently by multiple people, this seems especially troublesome. In fact, various research papers have been written about why an independent invention defense makes a lot of sense.

However, beyond just a "defense" on patent claims, we've often pointed out that independent invention actually should represent pretty good evidence that an invention doesn't meet the criteria for "non-obviousness" to those skilled in the art that is required for a patent. After all, if multiple folks skilled in the art are all coming up with the same invention, it seems to be rather definitive proof that the concept was an "obvious" next step to those skilled in the art. Of course, whenever we bring this up, patent system defenders talk about what a ridiculous idea this is and how it would be a disaster in practice. Unfortunately for them, the actual research suggests it would actually be quite reasonable.

However, with so many patent attorneys insisting that it's ridiculous that simultaneous or independent invention would be used to prove obviousness, it's interesting to see a patent attorney over at Patently-O point out that it's perfectly reasonable to use simultaneous invention as proof of obviousness, even though he admits it's "seldom used." Hopefully, that's going to start changing. If the purpose of the patent system is only to protect "new and non-obvious" inventions -- it would seem like de facto evidence of obviousness that others are doing the same damn thing. If you have to keep the patent system at all, such a test for obviousness (rather than just in court cases, as is suggested here) would be a tremendously useful step in the right direction.

Filed Under: independent invention, obviousness, patents, simultaneous invention