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No. 418:
Patent Law

Today, let's patent our invention. The University of Houston's College of Engineering presents this series about the machines that make our civilization run, and the people whose ingenuity created them.

I'm at a banquet for the 200th Anniversary of our Patent and Copyright Office. Henry Mancini is at the next table. John Bardeen is across the room. He helped invent the transistor. There's Gertrude Elion. She has a Nobel Prize for creating the drugs that make organ transplants possible. I see Stephen Sondheim, Stevie Wonder, James Michener, and Leonard Bernstein. There's Edwin Land, who gave us the Polaroid camera.

This is no Andy Warhol 15-minute hall of fame. These people have shaped our world, and they've stayed at it decade after decade. Still, I'm troubled. How does their raw creativity relate to the legal system that protects it. I ask the patent lawyer next to me, "What qualifies an invention for a patent?"

Him: "There're three things. First, it has to be new."

Me:   "What if it was known in ancient China and then forgotten?"

Him: "That'd be a special case. Then we wouldn't count the prior invention.

But it also has to be useful."

Me:    "Oh? Can you always see usefulness coming?"

Him: "That's a problem, so the court tries to consider potential.

Anyway, there's a third absolute. It can't be obvious."

Me:   "Yes, but the best design is always the simplest one."

Him: "Well, the court tries to tell the difference between simple and obvious.

A simple invention isn't always obvious."

Me:   "But anything's obvious when you understand it."

Him: "I see your problem. Tell you what:

suppose you try to write a better set of criteria!"

The man has nailed me. I realize that new, useful, and nonobvious might be pretty good things for the courts to think about while they struggle to identify inventive worth. He smiles at the troubled look on my face and says,

Him: "Patent people also have a set of traditions that aren't part of the law at all -- things like 'You can't patent a law of nature.' or 'You can patent a device, but not an idea.' We make exceptions to rules like that, all the time."

Up on the stage Ted Kennedy is giving Lloyd Conover a medal for discovering tetracycline. Robert Noyce is next. He coinvented the integrated circuit. What would our lives be without integrated circuits and antibiotics? I begin to catch on. The law is as imperfect as invention itself. For two days I've watched lawyers, inventors, and artists splitting hairs -- trying to see where creativity ends and its legal definition begins.

Creativity is a will-o-the-wisp. Trying to specify it is like trying to catch a rainbow. The only thing worse would be not trying to catch it at all. In the end, our flawed law and our flawed inventions have made our flawed world into a better place. The proof of the pudding is all around me. For this is a larger glory of the human mind than I've ever seen in one place -- or ever hope to see in one place again.

I'm John Lienhard, at the University of Houston, where we're interested in the way inventive minds work.

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