| Oh boy, that paper is a huge exercise in setting up a strawman and knocking it down. Lemley has done some good work, but this is not it. 1. He goes on and on about "patent theory", and it's worlds apart from how patent systems work in practice. His feeble connection is that practice is based on theory. 2. He cites a paper that directly contradict what he's saying. 2. a) He cites a paper to ostensibly support his theory that patent offices are pro-individual, but the reference actually says, without paraphrasing, "The patent laws do very little to prompt this view." It actually concludes that the lone-inventor rhetoric "has done little to stave off the increasingly anti-individual-inventor changes in substantive patent law." 2. b) He perpetuates the same "Watt stopped Steam" myth that Boldrin and Levine make. And to support this, he cites the Turner/Selgin paper that asserts precisely the opposite! 3. Further, regarding steam, he insinuates patent law didn't work as expected because Watt's patents promoted steam research by forcing workarounds. In fact, innovation through forced workaround has long been a known (though possibly post-facto) rationalization of the patent system. 4. All the examples he gives of "multiple independent invention" are actually examples of multiple individuals independently inventing different inventions. And he further proves it by saying that many of those inventors secured patents for their own inventions as well! 5. All the other parties working on the "genius" inventions did contribute to overall knowledge, but a) their work was not wasted since they did things differently, exploring the problem space further, and frequently got their own patents, and b) those inventions that ended up being remembered as genius were actually the commercially more successful ones, typically because they were either technically superior or their inventors were sharper businessmen. 6. He implies accidental inventions are less deserving of protection, completely omitting that those inventions all happened in labs or research environments by people who were actively experimenting. Throughout this paper, Lemley consistently makes two mistakes: * He conflates the broad “idea” of something with the specific implementation that makes that something work; * He conflates popular narrative about patents with the patent system; And based on these two, he enumerates flaws in popular narrative where most major inventions were not invented only by those that got all the credit. And then he completely fails to show how this flawed narrative has anything to do with the patent system, which, by his very own examples, does reward individual and incremental contributions. |