One summer night in 1900, a reporter appeared at the door of Thomas Edison’s laboratory pleading for an interview. The night watchman wouldn’t admit him, even though Edison was still at work upstairs. The reporter, Remsen Crawford, said he needed to get Edison’s reaction to the news that seven of his inventions “would revert to posterity and the public good” when their patents expired at midnight.
The watchman conveyed the request on to Edison, who replied,
“Tell him that Mr. Edison says he has never had exclusive use of his inventions and never expects to in this world.
“Tell him the expiring of a patent has no effect whatever upon the fortunes of an inventor.”
Hearing Edison’s response, Crawford wrote another note: “What do you mean by ‘no exclusive use’? No protection? Must see you.” Eventually the great inventor admitted Crawford and gave him this statement:
“There is no such thing in this country as an inventor’s monopoly. The moment he invents something that is an epoch-maker in the world of science and commerce, there will be pirates to spring up on all sides and contest his rights to his ideas.
“I might invent a new monkey wrench which could go without infringement, but the moment I take certain forces and work out a moving picture for the first time in history… mark you how the pirates rise up and call it their own.”
Thirty years later, Crawford was back at Edison’s laboratory, again asking about patents and their profitability. Having invented the sustainable electric lighting, the phonograph, and the motion picture camera, Crawford asked him, “Why aren’t you the richest man in the world today?”
“Nearly $10,000,000,000, they tell me, are invested in modern industries which developed from ideas embodied in my inventions and my patents.
“A billion or so dollars, I am told, may be the annual total income to artisans and workers in fields thus created.
“But I have made very little profit from my inventions.
“In my lifetime I have taken out 1180 patents, up to date. Counting the expense of experimenting and fighting for my claims in court, these patents have cost me more than they have returned me in royalties. I have made money through the introduction and sale of my products as a manufacturer, not as an inventor.”
Edison was one of the fortunate few inventors who knew that great engineering, on its own, never earned a dime. The success of any technology is due to its business model. And the protection of its copyright.
Unfortunately, Edison said, the U.S. had a “miserable system” for protecting inventions from infringement.
“I have never enjoyed a monopoly upon anything that I have ever invented, with this single modification: the producers of motion pictures did pay me royalties until my patents expired. But even in that case I had to fight a long time in court over my claims.
“I frankly acknowledge that on one of the patents I had filed claims that were a little too ambitious, too broad, and one of the courts threw us out.
“But we modified our claims and the patent was reissued to us, and the picture people recognized our rights and paid us royalties until the patents expired.”
“I have known of several inventors [whose] ideas would have made them millionaires. But they were kept poor by the pirates who were allowed through our very faulty system of protection to usurp their rights.
“Do you see that little incandescent lamp hanging over my head? Well, I fought in the courts of this and other countries for fourteen years to establish my rights as inventor, even after I had the patents. My associates and I had to spend more than $1,000,000 to prove our rights to the incandescent light, even though our claims had been duly vouched by the United States patent office.
“Everywhere, all around the earth, the pirates kept picking on that little lamp, and they were able to keep me out of the profits on my patents until there were but three years left out of the seventeen. So, while the light was a boon to the world at large, to the inventor the patent was well-nigh useless.”
“The first step is to hire a sharp lawyer—one who can make any judge unfamiliar with technology believe that black is white. They set up the claim that they, and not the inventor, should be recognized as the originator of certain ideas. They boldly strut into court and enjoin the inventor from manufacturing anything from his own creations and formulas, even though the inventor may hold in his hands a patent issued by the United States Government.
“Pirates can readily get all the money they require—millions, if needed—to carry on their contests.”
As always, when facing a problem, Edison came up with a solution. The answer to high-tech piracy was a high-tech court.
“A separate and special court. Take the whole business out of the regular judicial system. It has never belonged there.
“What does the average judge of our district courts, or circuit courts of appeal—or even of the Supreme Court, for that matter—know about the technical phases of chemistry or physics? These judges have been lawyers all their lives, and they are—some of them—distinguished for their ability as jurists. But when it comes to understanding a contest over amperes, or ohms, or the atomic theory, or subatomic energy, they can be fooled by a smart lawyer quite as soon as… any farmer from the hinterlands.
“I would appoint, to this special court for trying patent cases, judges from the faculties of colleges of technology, men who know something about science. They could travel around the country and hold court, if need be, in the factories and workshops of the inventors and their competitors, and get first-hand data upon each issue involved in the litigation, just as President Wilson’s War Labor Board, headed by William Howard Taft, went around during the war settling labor disputes in the mills, right on the ground. There wouldn’t be much quibbling on the part of lawyers before these scientist judges. Then, and not till then, will an inventor stand some show of being rewarded for the long, tedious labors he has expended through ceaseless experimentation to gain the fruition of his ideas.”
Perhaps Edison’s court of scientist-judges would make more intelligent decisions about the theft of patented technology. It might also spare businesses the overwhelming costs of time, money, and resources for such suits. (Surely the legal profession will profit more from the pending lawsuit of Apple and Google than the technology developers.)
However, an American court would be of little help in protecting U.S. patents in the global markets. According to our International Trade Commission, China’s theft of Americans’ intellectual property, in 2009 alone, cost U.S. businesses $48 billion and 2.1 million jobs.