A Critique of Mark Lemley’s 'The Myth of the Sole Inventor'

Abstract

Professor Mark Lemley advances a thesis that “the canonical story of the lone genius inventor is largely a myth” and describes a selection of pioneer inventions to support his thesis. We show that Lemley has many of his facts wrong. We examine his assertions and set the record straight in the pioneer invention cases of Edison, the Wright brothers, the Selden automobile patent vis a vis Ford, Watt and the steam engine and Fleming and penicillin. We are concerned with the errors in alleged historical and legal facts in what Lemley calls “lessons of history” and “realities of innovation” because these are used to argue that the patent system does not work as patent theory suggests. We show that Lemley’s major thesis that these inventions were made “near-simultaneously” by others has no basis in fact and show that patent law inherently ensures that patent protection is not extended to near simultaneous inventions. We illustrate that the lessons of history, when informed by consultation of relevant patents, legal decisions and patent law not only do not support Lemley’s central thesis, but offer valuable insights into how America’s historical patent system and innovation work together to foster development.

Keywords: Sole inventor, invention, simultaneous invention, genius inventor, non-obviousness, patent law, Selden, Watt, Edison, Fleming, Wright brothers

JEL Classification: L43, O32, O34