Patents: Hiding from History

By McJohn, Stephen M. | Santa Clara Computer & High Technology Law Journal, May 2008 | Go to article overview

Patents: Hiding from History


McJohn, Stephen M., Santa Clara Computer & High Technology Law Journal


Abstract

This essay analyzes how various patent rules, viewed together, indirectly cause a distorted historical record of technological development. Part II of this essay looks at a recent book, The Democratization of Invention, that relied heavily on patent records to reexamine acutely the historical role of intellectual property in economic development. Part III of this essay discusses how patent law today discourages an inventor from accurately disclosing her invention and its place in technological development. Instead, patent law indirectly encourages vague and overbroad descriptions of the invention. Case law on claim interpretation uses specific disclosures about the invention to limit the scope of the patent claims. This leads to patent drafters using what has been called "intentional obscurity." Similarly, the law governing disclosure encourages inventors not to define their terms, or identify the category of invention in the preamble, or limit the claims to the actual invention. Likewise, inventors are at a disadvantage if they explain the advantages of the claimed invention or submit software code used to implement the invention. Even keeping informed on technology in the field may hurt the inventor. Reform of such rules could help the patent system today, and, as a byproduct, tomorrow's history. Reforms that improve the quality of patent applications for their primary purposes (such as examination, licensing, and litigation) would likewise improve their value for the future.

I. INTRODUCTION

Patent records can be a rich resource for researchers of all stripes. Economists have long used patent records in studying the relationship between technology and economic development. As The Cambridge Economic History of Modern Britain put it, "[o]ne of the few available quantitative output indicators for technology" is the records of the United States Patent & Trademark Office ("Patent Office"). (1) Patents also provide a source of information for the history of technology itself, as well as a useful source of technical information. Thomas P. Jones, an influential figure in early United States patent practice, "envisioned the Patent Office as a great repository of technical wisdom. He saw it, on one hand, as a museum in which the mechanic could trace the historical progress of the art and, on the other hand, as a collection which described the present state of the art." (2) Patent records have been used to rethink the role of marginalized groups, as in Mothers and Daughters of Invention: Notes for a Revised History of Technology (3) and A Hammer in Their Hands: A Documentary History of Technology and the African-American Experiences. (4) Patent records have facilitated more specialized histories such as Cotton: Origin, History, Technology and Production (5) and Glass: The Miracle Maker: Its History, Technology and Applications. (6) Often, the only remaining documentary evidence of an invention is its patent record. (7) Patents have also played a role in forensic research. Art conservation scientists used patents on paints and pigments to conclude that certain paintings attributed to Jackson Pollock were actually painted after his death. (8) Patents even play a role in biographical research. The patents of Abraham Lincoln (9) and Albert Einstein (10) show less known sides of their personalities. (11)

However, the utility of the records is limited to the information disclosed. Part II of this essay looks at a recent book that relied heavily on patent records and copyright registrations to reexamine acutely the role of intellectual property in economic development. (12) Part III discusses how patent law today discourages an inventor from accurately disclosing her invention and its place in technological development. Several aspects of patent law encourage applicants to describe and claim not what they have invented, but rather a vague and overbroad version of their invention. Rather than encouraging accurate disclosure, patent law encourages what has been called "intentional obscurity. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Patents: Hiding from History
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.