Terrors of the Patent Office [ Halloween Patents]

Nothing gets the inventive process moving like a commercial holiday. Unlike Christmas, Halloween lacks a committed religious lobby arguing that the festival has become too commercialized. Gaelic Druids, engaging in their Samhain Festivities, would probably be in awe of the variety and sophistication of modern creepy faced gourd lanterns. (a particularly creepy turnip Samhain lantern seen at left)

A quick search of the patent office provides several excellent updates of this apparently ancient tradition of making disturbing faces on otherwise inedible tubers. (Yes, I find turnips inedible...)

Everyone likes a menacingly happy Jack-O-Lantern. That's why, in 1907,  JC Tyndall of  St. Louis decided to file and get a patent (No. 848,938 on a "Toy Lantern"). Tyndall realized that the weak point of any Pumpkin light was the cap, and the susceptibility of the entire enterprise ending in a pumpkin scented conflagration. therefore, his pumpkin lantern includes a candle retainer, and an interlocking cap and gimbals mechanism for easy transport. the Specification does not detail why the eyebrows are so disturbingly curved.

In the continued vein of creepy faced pumpkin products, we move onto B. Wilmsen's particularly threatening Jack-O-Lantern patent issued in 1934. (No. 94,935 on a "Pumpkin Lantern").Tyndall had actually technology. Wilmsen make up for his lack of technical sophistication in this design patent with existential pumpkin-faced dread. His products nearly vertical optical orbs scream "infringe me if you dare!"

Lastly, we have an epileptic seizure inducing pumpkin Lantern. The psychedelic 1960's produced some interesting and mind altering experiences.  None of these hold an electronic candle to a double faced Janus-like Pumpkin invented by R.R. Authier of Oaks Bluff Mass and issued as Pat. No. 3,250,910. (Ed: Martha's vineyards for those who don't know).This specialty lantern has dual faces, one scary and one comical. In addition, it contains selectively operated light sources of differing colors. Lastly, these lights can blink or strobe, producing the red flashing eyes of a haunted monstrosity, in pumpkin form.


Always remember to check the patent office for particularly excellent holiday ideas.

Historical Patent Trolls: James Beaumont Neilson Edition

James, massive Troll and Fit model for Scrooge 

It is often argued, with copious amounts of digital ink, that patents are a net drain on innovation and our economy.

I tend to push back against this position, mainly out of enlightened self-interest.  I work in the IP field, if we did away with it at the whim of a subset of libertarian minded technocrats, I would have a hard time finding gainful employment. Or, at least a hard time finding employment which affords me the opportunity to opine on various sundry matters of a historical / philosophical sort. 

However, the impetus to push back against the characterization of this, or any time period, as a particularly unique moment in human history is fueled by those same historical pursuits.

The arguments against non-practicing entities (Trolls) stem from the proponent's perceived enlightened self-interest.  The core position of the patent detractor is a belief that the system as it stands (and has stood for 200 years) benefits the lazy at the expense of the industrious. The arguments are premised on a belief that the worker, the programmer, the system builder is innovating, advancing commerce and technology, creating jobs. In contrast, the dilettante inventor, the thinker, the small time experimenter with her one-off patent, is holding progress hostage to her insatiable appetite for licensing fees and royalty payments. Better, the argument goes, to scrap the patent system than for some to pay for technology which they use but do not place much value upon. 

This argument is usually presented in the context of software, as though the concept of non-practicing entities and expensive legal battles over the scope and value of patent rights came into being with the advent of the internet.

In fact, this exact line of thinking was espoused almost 200 years ago by an association of Iron works industrialists who were desperately seeking a way to avoid paying for technology leashed to "extortion-level" licensing fees.  

A brief aside regarding British ironworks in the 1820's. When one has spent all day acquiring iron ore from the heart of some lonely mountain and that same someone wishes to turn that iron into rail lines, rifles and other fine instruments of the Imperium, one needs to smelt the iron.  Traditionally, that was done by blowing (blast) cold air over coke (a purified form of coal that has been roasted) and iron inserted into this (blast) furnace. 

Enter Mr. James Beaumont Neilson. Neilson, manager and engineer of the Glasgow Gasworks, discovered that if you raise the temperature of the air you are injecting into the furnace ( to around 300F), you need far less coke.  Additionally, and most importantly, depending on the temperatures levels and coal type, you could switch from expensive fancy coke, to the normal everyday-get-a-lump-in-your-stocking coal as your fuel (something of which the British Isles had plenty). 

Neilson proceeded to obtain a series of patents in Great Britain, Scotland, and Ireland in 1828-29 on this hot blast technology.  Neilson then set about licensing this technology. By 1835, hot blast furnace technology was in every ironwork in Scotland, save one. The license fee was set at the low price of 1 pound per ton of iron produced. This licensing scheme was considered by Neilson to be of a low enough price that people would not circumvent the license and become wanton infringers.  

Neilson was wrong. Almost immediately, Scottish Iron Masters formed an association, which bound the members under penalty of 1000 pounds, to resist:

 "by every method which a majority should recommend, any practical acknowledgment of the validity of  Neilson's patent." 

At the same time, several English Ironmasters were making use of the hot blast technology while refusing to take out licenses.  Neilson eventually won judgments against the English Iron Masters, but spent the next 9 years battling the Sottish Association, Harford Coal, Household Coal, and finally Baird Ironworks.  

Baird initially took a license, determined later that it was 'extortion of the highest sort' and ceased payment. The resulting litigation, Neilson v. Baird, turned into a spectacle. The jury trial lasted 9 days, with more than 100 witnesses called. Estimated attorney costs were multiples of the typical costs for patent infringement in the mid-19th century.  The witnesses spanned the range from businessmen to what modern Patent litigators would classify as testifying experts on enablement, inventorship, validity and damages issues.

When the testimony was compiled, the full picture of Neilson's technology and the scope of infringement was painted. In the 10 years that Baird used the hot furnace they has seen an increase in net profits of more than 260,000 pounds  (more than approx 180,000,000 in USD). The jury sided with Neilson and awarded damages of 11,000 pounds, roughly 10 million dollars in modern sums. He had asked for 20,000 pounds). 

According to modern interpretations, Neilson was a troll of the highest order. He never once claimed to be in the business of iron smelting, only in the allied field of gas works. He had a broad based licensing program that went, sometimes aggressively, after an entire industry. Lastly, he was not shy about litigating his patents and seeking damages from those he accused of infringement.

However, Neilson is widely considered a celebrated inventor, the father of the Hot Blast Furnace, and major contributor to the industrial revolution. If one seeks to modify the patent system, one must account for the Neilsons as well as the standard trolls. What separates their actions in the minds of the public? What anti-patent troll statute would have allowed Neilson to prevail, while barring those egregious abusers of the patent system? I am not sure I have seen a good answer. 

Jordan Garner

  

Infringement frequency pushback

As a quick post, the following chart is presented from Google's fantastic Ngram viewer.

First, a bit of information regarding Ngram. The viewer is one of those Google 20% projects (i.e. not a core google product) that came out of the Google's massive data trove generated when it optically scanned libraries worth of print books. This scanning was itself not without controversy. See here.

The viewer allows you to search for the frequency of a word, or phrase, and see how that phrase has changed over time.  This allows for hours spent traveling down the internet time sink looking for interesting word / data combinations.

However, I think (and IP nerds agree) that the interesting output is related to the frequency of IP terms in written english. A look at the graph above demonstrates that for all the recent talk about Patents being a drain on industry, the frequency of discussion has remained relatively flat since the 1800s. Time bias being what it is, you see a peak in the late 1940's (probably a combination of medical advances and post WWII electronic / solid state electronic development.) and then a precipitous drop off to a nadir in the 1970's.  For 30 something developers or businessmen, it looks like there has been a terrible rise in patent usage.  However, even in 2009, with Trolls in full swing, the rate of  the usage of patent terms has yet to return to the nominal historical average.

More interesting, copyrights, long the bane of innovators, has been on a steady historical march, with no signs of slowing.

What is slowing is the march of IP infringement references.
     In the above chart, the concept of a "trade secret" seams to occur far more than any of the traditional Federal IP rights. There appears to be a high burst in the mid-80s to the 2000. (Potentially the rise of Japan and China? Topics for another day).

Patent, copyright and trademark infringement references hit their peak in 2000 and have been decreasing ever since.

It should be noted that these are references to the specific terms in published works. It does not include online media (which might be siphoning off the results post 2000)).  However, it would be odd, and a post in its own right to not have some correlation to the prevalence of a term in print and its prevalence in all media.

Anyone who is selling the concept that IP rights, their enforcement, or position in the mind-space of our society needs to justify those claims in light of the charts above.