Patents: Hiding from History
McJohn, Stephen M., Santa Clara Computer & High Technology Law Journal
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.
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. …