Modern Times Legal Patent Blog

This American Life on Patents

Posted on Wed, Jul 27, 2011 @ 09:44 AM


"This American Life" on NPR is a great show; and I was quite surprised (and delighted) to see that their most-recent episode focused on patents, "When Patents Attack." Give it a listen, as the program is certainly thought-provoking and offers some interesting insights, particularly with respect to patent litigation in the Eastern District of Texas. I was also delighted to hear my WIPO-teaching colleague, Tom Ewing of Avancept, featured as an expert on Intellectual Ventures (starting around the 40-minute mark).

Nonetheless, as is all too typical, the program is off-target in at least some respects when blasting the patent system. Citing ridiculous patents certainly is popular sport, though it seems no one ever actually reads the purportedly "ridiculous" patents that are cited. For example, when speaking with a so-called, expert, David Martin, they quote him lambasting US Patent No. 6,080,436, entitled  “Bread Refreshing Method” (issued in 2000), as covering the making of toast. Well golly gee, wasn't toast already known and doesn't this show how ridiculous and out-of-control the US Patent and TM Office is? Yup, . . . and they move on.

Except it isn't true. A quick look at the claims will tell you that. Among other limitations, claim 1 of this patent requires "setting the temperature of the heating elements between 2500 F. and 4500 F." Does your toaster operate at 2500 degrees Fahrenheit or above? Here's a hint: most traditional heating elements would melt in that temperature range. So suffice it to say that's not a traditional toasting temperature. Maybe the patent is valid or maybe it isn't; but if someone (even respected media) tells you that toast was patented in 2000, well, they're dead wrong, though it does make for compelling press.

Getting to the heart of this episode, though, the program calls into question the ethics of "non-practicing patent holders." Should someone be able to obtain a patent, not practice it, and instead merely try to license the invention to a bigger entity? As a general principal, yes, the inventor absolutely should have that right. The inventor is often not the best person to take a product to market. Many inventors do not have the skill set or resources to mass produce a popular invention, themselves. And, like it or not, we live in a world where ideas, alone, are commodities of value--true inventors should be rewarded whether they bring the invention to the market or whether someone else does. This framework allows for greater specialization and focus.

Of course, sometimes patents are wrongly issued, as the examiner is human and may not always find the best prior art. Over 7 million patents have been granted by the US Patent and TM Office, so no doubt that at least a few stinkers have slipped through; and the patent system will, of course, have to adapt to a rapidly changing marketplace. Though any suggestion that obtaining a patent is easy is patently false, as only a minority of US patent applications are allowed without receiving a final rejection.

Does Intellectual Ventures provide a net benefit to society? Having no direct interactions with them and never having evaluated any portion of their patent portfolio; I, frankly, do not know. Regardless, we need not look far to find many other patent-licensing entities that do provide a clear benefit--our nation's universities, which spin an extraordinary amount of new technology out into the marketplace to drive our nation's economy--though big media would rather focus on "trolls." The patent system certainly isn't perfect, and the results aren't always fair. Though somehow the wonderful stories of inventors living the American dream of capitalizing on their patented inventions seem to get less press than ridiculous suggestions that the US Patent and TM Office is issuing patents on traditional breakfast items here in the 21st century. Sigh, . . . perhaps I need to acclerate my blogging again to share such stories for balance.

Tags: inventors

Remarkable story of African small-scale renewable energy independence

Posted on Thu, Oct 01, 2009 @ 08:31 AM

Occasionally, you come across a story that makes your day and inspires you. The construction of power-generating windmills by Malawi's self-taught William Kamkwamba (starting at the age of 14) is beyond inspiring. I don't think you'll regret for a moment watching this six-minute clip:

This young innovator with little education, little money and almost no tools powers his family's home with renewable energy and makes them energy-independent. Meanwhile, in America, with all our resources and with the benefits being clearly evident for decades, we still cannot muster the discipline and will to make the sacrifices needed to make ourselves energy independent.
Ultimately, though, what attracts me most to this story is that it reminds me of what I love about Africa. While William's talents are indeed exceptional, this remarkably resourceful, ambitious, eager-to-learn and determined drive to improve one's lot and to better one's community is found all over the continent. Indeed, I have met at least one other windmill innovator in my travels (an inventor in Ethiopia). In Wiliam's case, "[a] windmill meant more than just power," he wrote, "it was freedom." Many Africans are remarkably resourceful in solving problems with limited resources. This is the Africa that I think gets far too little attention in the west. We are far more likely to see reports of suffering and famine, though that is a very small part of what Africa is about.
With the WIPO/ARIPO patent-drafting training program, we help to build a core group of trained patent professionals who can provide a platform to better enable African innovation to compete in world markets. Though it will be Africans such as William who will lead Africa as the next great frontier of development (post-Asia). If you have not heard that forecast before, recognize now that you are likely see remarkable changes and development in Africa in the next couple decades. In Africa today, you will find both hope and despair, though I find the sense of hope (no matter the suffering) to be the more powerful and resilient force.
Read more about William at African Dynamo on the and hear more from him at this presentation from the TEDGlobal Conference:
Thanks to my friends at EGG-Energy in Tanzania/Cambridge for introducing me to this remarkable story.

Tags: sustainability, inventors, energy, Africa

Old People Are More Innovative - thinking about age diversity in the context of invention

Posted on Sun, Aug 23, 2009 @ 11:43 PM

The above is the title for one of 25 "unexpected truths" published in this week's edition of Newsweek. Newsweek posits:

Earlier generations of scientists didn't have to wade through quite as much preexisting work before making an original contribution. Now innovators are establishing themselves much later in life.

A provocative theory. Is it true?

Run-of-the-mill inventors are also older: the average age for registering first major patents has jumped seven months per decade.

Id. (source not provided, though I will accept it here as true for the sake of argument).

While mainstream media is drawn to young internet innovators like Sergei and Larry at Google, within an industry where many innovators begin to build their empires while still in or just out of college (I certainly have felt "old" by comparison when I have visited Google Cambridge), this trend is not particularly surprising to me in the context of other advanced technologies.

Truly, in many fields we are standing on the shoulders of a taller and taller stack of giants; and you simply cannot climb that stack overnight.

Much of my work as a patent attorney is for local universities, where I often work with teams in the form of some combination of professors, post-docs, graduate students and undergraduates. More and more of this work is interdisciplinary and builds on deep understandings of multiple technologies. That depth and breadth of understanding is often the key held by a professor or group of professors, who may have decades of scholarship and experience.

The inspiration for this post, however, is not to argue whether older people or younger people are more inventive. Rather, the realization that inspires me to write is what I have observed from my work--a great model for innovation is found in the creation of cross-generational teams. In the university context, you often have one or more professors and young students from the profesors' labs. The professor may be more likely to provide the broader vision and draw concepts from across a range of other disciplines. The students meanwhile may be more likely to provide a fresh perspective and pursue new tangents. Put them together, and you get concepts that neither would have generated alone.

I believe industry can likewise benefit by more closely replicating this model. Make a more concerted effort to put your young engineers in close collaboration and consult with your veteran engineers. We regularly hear about the benefits of diversity based on gender, race, etc. However, I do not often hear much advocacy for promoting age diversity.

Each generation is shaped by different experiences, influences and ideas. And invention is often the byproduct of colliding different ways of thinking. The conclusion I find compelling is that we need to better mix our more-senior people with the younger people (not just at our universities) and watch innovation flourish.

Tags: inventors

Innovation everywhere - Africa and the developing world

Posted on Thu, Aug 13, 2009 @ 10:32 PM

Great Zimbabwe

WIPO/ARIPO instructors (Bob at left) and students from across Africa at Great Zimbabwe, near Masvingo, Zimbabwe (September 8, 2007).

"Zimbabwe" means stone house in the language of the Shona people. "Great Zimbabwe" now refers to the ruins of a great civilzation a couple hours from Harare with extraordinary dry stone constructions (i.e., formed of carved stone blocks and constructed without mortar). The earliest of these structures were believed to have been built around the year 1100, and the site is now a UNESCO World Heritage Site.

As colonial Rhodesia, the government would not accept that these remarkable structures were built by Africans, though it now appears clear that they were, in fact, built by remarkably innovative and sophisticated craftsmen who were ancient natives of what is now the country of Zimbabwe. Even today, these structures are a marvel of engineering; and needless to say, they were remarkably innovative 900 years ago.

Great Zimbabwe - conical tower

I was reminded of these impressions while recently reading Investment Biker by Jim Rogers. At one point, he reflected on a recognition that people from every society across the globe have achieved (and hold the potential for) highly advanced civilizations.

What struck me was the universal genius of man. I was reared to think that the glories of the Hebrews, the Greeks, and the Romans were the heights of ancient man's accomplishments. But this trip was opening my eyes. In Carthage, in Zimbabwe, in Xi'an, in the Sahara, and in Siberia--here in Tiahuanaco, Lake Titicaca, Suzdal, Istanbul, and Samarkand--I found ancient glory after ancient glory.

Id. at 340. I focus here on Great Zimbabwe simply because it is the only site among these that I have visited. Great Zimbabwe certainly does not fit the stereotype of "primitive" early Africans; and it made a strong impression on me as well--truly, we are all capable of greatness in every corner of the globe.

As we now enter a "flat world," opportunity for innovative contribution further opens up to all. My trip to Zimbabwe was on behalf of the World Intellectual Property Organization and the African Regional Intellectual Property Office to train Africans to draft patent applications. Recognizing that researchers at laboratories, universitites and other institutions across Africa continue to innovate and invent, a bottleneck to bringing these innovations to world markets in many developing regions is a scarcity of patent professionals to secure protection for these innovations; and our objective was to help build that capacity.

In short, opportunities now exist for unleashing this potential, and patents can play a key role in exporting innovations from developing regions and bringing them to market. Now more than ever, we have an opportunity to capitalize on innovation everywhere.


At the Scientific and Industrial Research and Development Centre in Harare, a biologist, above, explains his work in developing a drought-resistant variety of maize (corn). He and his colleagues are unphased by the dark during this power outage. Absent a reliable electrical grid, one of the most critical pieces of equipment in the lab is an uninterruptable power supply, so his innovative work determinatively carries on no matter the adversity.

For more examples of current innovation taking place in Africa, I highly recommend the recently launched blog from EGG-Energy from on the ground in Tanzania where they are working to more efficiently deliver electric power to the masses.

And if you are looking to secure global patent protection, I invite you to give me a call and I wil be happy to share more thoughts and explore whether I can help.

Tags: inventors, Africa, international

Book Review: "Black Inventors in the Age of Segregation"

Posted on Tue, Aug 04, 2009 @ 08:38 PM

Black Inventors in the Age of Segregation
by Rayvon Fouche

Preparation for a course that I am teaching through the World Intellectual Property Organization for patent-drafting students in Africa drew my interest toward better understanding the experience and role of African-American inventors in the post-Reconstruction years following the American civil war. My interest was particularly piqued when, upon reviewing an early patent issued to prominent African-American inventor, Lewis Latimer, I saw that his home city was identified as Somerville, Massachusetts, which is where I live.

In Black Inventors, Fouche (a professor at Rensselaer Polytechnic Institute) provides a scholarly and balanced analysis of the "myths" of the black inventor in America in the late nineteenth and early twentieth century. Across many cultures, great inventors are routinely lionized as intellecual heroes and are widely known for advancing society by virtue of their inventions (e.g., Thomas Edison and his light bulb). But often, and particularly with African-American inventors, we know very little about the inventor, himself (or, on occasion, herself).

Were these early African-American inventors really heroic figures? What drove them and what was their experience? In the case of the early black inventor, was promoting the standing of black Americans toward racial equality even a priority for them? And how did public opinion toward their race hurt (or help) them along the way?

Fouche explores these issues and more as he unravels the stories behind the following three prominent African-American inventors around the turn of the last century:   Granville T. Woods, Lewis H. Lattimer, and Shelby J. Davidson.

Granville Woods

The story of Granville T. Woods was particularly intriguing. Born in Australia in 1856, with mixed aboriginal, Malay, and African ancestry, Woods (like many inventors of all races) demonstrated fierce determination and persistence in attempting to capitalize his inventions and bring them to market. There appears to be no evidence that he viewed himself as a champion of the African-American race or even that he felt a strong tie toward it. Rather, he seemed to be more of a quintessential inventor, focused doggedly on inventing, advancing technology and obtaining a degree of wealth from his inventions.

Perhaps ironically, many of Woods' inventions were directed to train and railway technology (particularly electronic communication systems for trains), at a time when African-Americans could not ride along whites aboard trains in America. And contrary to popular myths, his myriad of inventions never brought him great wealth.  While all inventors face significant hurdles in capitalizing on inventions, the hurdles that Woods faced were particularly high and repeated, including many that appeared to have little or no relation to his race.

Mirroring the experience of many inventors still today, Woods fell for the pitch of a sham invention promotion firm when he was first poised on the verge of success. In New York City, Woods came across an advertisement for the American Patent Agency, which was managed by an unscrupulous patent attorney, James Zerbe, and agreed to form a joint venture coordinated by Zerbe to capitalize on the invention. Though Woods seemed fairly savvy, Zerbe stole Woods' inventions. Woods' only vindication was (in coordination with other victims of the firm) ultimately outsmarting and outmaneuvering Zerbe and succeeding in getting Zerbe criminally convicted of theft and disbarred, though not without missed opportunity for Woods to capitalize on his inventions.

As Fouche explained, "I do not thnk Zerbe attempted to steal Woods's inventions specifically because was black. Zerbe had quite a history of cheating anyone he could: white men, women, whomever. As far his business was concerned, he was an equal opportunity swindler."

Fouche also noted that race was a double-edged sword for Woods. Certainly, African-Americans faced great discrimination in America at that time, though Woods also appeared to capitalize on his race, when he found the opportunity, for example in generating sympathy in court against Zerbe and in attracting public interest and curiosity in his work, as prolific black inventors were not particularly common in America at that time.

In his final decade between the turn of the century and his death in 1910, Woods patented 22 inventions, many of which were assigned to General Electric and Westinghouse.

Lewis Latimer

Described by Fouche as being politically consertavive, Lewis H. Latimer reportedly rejected as futile the efforts at that time to reassemble a black culture post-Reconstruction. Instead, Fouche indicates that Latimer believed that the path forward was via assimilation into white culture. Lewis Latimer's father, George was an escaped slave from Virginia. His freedom was secured through the work and financing of white Boston-area abolitionists, and this history provided Lewis with a nuanced and complex perspective on race relations.

As a teenager, Latimer occasioned upon a fortuitous opportunity when he heard that the Boston patent firm of Crosby, Halstead & Gould was looking for "a colored boy with a taste for drawing" from an African-American woman who cleaned the firm's offices.  Latimer landed that position and worked his way up, starting as office boy, becoming a drawing assistant and then securing the position of chief patent drawing draftsman when his predecessor left the firm. His work included drafting the drawings for Alexander Graham Bell's patent application for the telephone.

By his twenties, Latimer, himself, was inventing. He secured his first patent in 1874 for an "improvement in water-closet for railroad-cars." Latimer later left the Boston area to join his sister in Bridgeport, Connecticut. In Bridgeport, where he landed a position as a draftsman for the United States Electric Lighting Company, which allowed Latimer to tap into the nascent market of electric lighting, and while there, he continued inventing, generating improved lamp designs for the company. By 1881 he was superintendent of the company's incandescent lamp department, supervising forty men.

After a challenging stint in finding new employment amid post-Reconstruction racial tensions, Latimer was later hired by Thomas Edison's "Edison Company," which later became General Electric, where Latimer became a member of the legal department and interacted on a personal level with Thomas Edison, himself, evidencing that Latimer was well-regarded and generally accepted within Edison's enterprise.

Finally, Shelby J. Davidson was born in Lexington, Kentucky in 1868 and graduated of Howard University (but not without having to win a contested dismissal proceeding brought by the university's board of trustees via his own skilled and shrewd legal arguments). Further study of the law led Davidson to admission to the Kentucky bar and to the DC bar.

Davidson then took a position with the United States Treasury Department's Post office Division, where Davidson invented adding machines to increase the division's efficiency and productivity by automating auditing procedures. Davidson used his inventive contributions to secure promotions and temporarily improve his standing within his division and to advance socially and culturally within the black community.

Nevertheless, Davidson's rise within the Treasury Department halted and reversed after a dispute over the rights to Davidson's adding machines, leading to Davidson's resignation from government service in 1912. By that time, though, Davidson had already started a real estate business for colored people on the side, and he began a legal practice. Davidson was financially successful in these endeavors, and he rose to prominent leadership positions within the NAACP.

One of the conclusions I drew from these stories, featuring an independent inventor (Woods), a corporate inventor (Latimer) and a government inventor (Davidson), which perhaps should not at all be surprising, was that each of these early African-American inventors was more or less just like any other great inventor--intellectually brilliant, creative, un-dissuadable and ambitious with a love of technological innovation. These motivations, for Woods and Latimer, at least, seemed far more prominent than any notions associated with race, notwithstanding the racial discrimination that each faced in various forms throughout their lives. None became particularly wealthy via their patents, though Latimer and Davidson became solidly middle-class via other endeavors.

Though this report just skims the surface of the profiles provided by Fouche, I applaud his efforts to shine an objective light on these early African-American inventors and to provide a deeper insight into their roles, experience and character.  Through better understanding, we can hope to continue to knock down barriers and inspire others.

Tags: inventors, book review

Anyone can be an inventor - a salute to Michael Jackson

Posted on Tue, Jun 30, 2009 @ 12:37 PM

As you likely have heard by now, pop icon, Michael Jackson, passed away this past weekend. The infectiousness of his music was rivaled only by the crisp pop and groove of his flashy dance moves. Other patent afficianados likely also already know that Michael Jackson was named as an inventor on an issued patent (US Patent No. 5,255,452, titled, "Method and means for creating anti-gravity illusion") covering a system for latching a heal of a wearer's shoe with a "hitch member."

With the hitch member protruding from the floor, the wearer can slide the slot in his/her heal (see above image, at left) over the hitch and then lean forward (above image, right) to establish a dramatic, seemingly gravity-defying forward lean, while the hitch holds down the heal and prevents the wearer from tipping over.

Here's Michael Jackson's Smooth Criminal video; skip ahead to the 6:40 mark for the sequence of dance moves including the forward lean with these shoes:

Hats off to Michael Jackson, showing that anyone with some creativity can be an inventor and a patent holder.

Tags: inventors