Illuminating the impact of intellectual property law on innovation

by Lea Shaver | June 11, 2010 | news and ideas | 4 Comments

Christina’s terrific piece on Copyright and Glee looks at IP law’s impact on cultural participation. But what about the impact of IP on access to new technologies?

I’d like to take that up as the topic of my post, through a look at the little-known legal life of the light bulb.

More than a century after its introduction, the light bulb remains the defining icon of invention.

Justifiably so, in my opinion, because this widget almost single-handedly drove the demand for electrification. The light bulb was the killer app, if you will, for electric power. Which in turn enabled a whole new era of innovation.

But the story I want to tell is not one of great inventors and the inevitable march of progress. Hardly. It’s a story of legal battles, corporate strategy, social (in)justice, and lost technological opportunities.

Now as a girl, I was taught that Thomas Edison invented the light bulb. Full stop. That simple.

My fourth-grade class even took a field trip to Edison’s estate where, we were innocently led to believe, the Great Inventor single-handedly fathered the light bulb, the movie camera, and the phonograph (whatever that is).

Only very recently did I come to appreciate the much messier truth…

Edison’s team was merely one of dozens that co-invented electric light bulb. Scientifically speaking, his team’s discoveries were neither the first, nor the most important.

What Edison did better than all the other inventors took place not in the laboratory, but in the office.

His lawyers pursued, obtained, asserted, and litigated key patents on light bulb technology in order to run competing bulb manufacturers out of business.

Edison then leveraged his monopoly on bulbs to corner the market in electricity service as well. And that was where he made the big bucks. Ever hear of GE?

Now the fourth-grade account suggests that we should thank Mr. Edison for bringing us this amazing technology. Without his long hours in the laboratory – he even slept there! – we would still be in the dark.

But when you look at the history more closely, Edison’s scientific contribution starts to look pretty dispensable.

Scientists had already published instructions for producing a glowing electric bulb in 1709. The technology was already commercially viable in 1876. A few years later, London’s Savoy Theatre switched from gas lighting to electric bulbs supplied by Joseph Swan.

It was at this point, in 1879, that Edison filed for his first patent on “an improvement in Electric Lamps and in the method of manufacturing the same.” The improvement Edison claimed was the use of a certain type of filament inside the bulb.

Now, a patent is just a claim to have invented something new and therefore, to own that technology as intellectual property. It’s not proof of inventorship. Moreover, patent filers often claim ownership of ideas much more broadly than the law and facts actually warrant.

For these reasons, competing companies often end up in court to determine exactly who owns what.

For example, Thomas Swan had light bulb patents of his own, the first predating Edison’s by 19 years. He had even been granted a patent in England claiming the same discovery Edison’s team claimed to have made. But he was unable to retain the legal upper hand.

Even though it was never legally established that Swan’s bulbs infringed on Edison’s patents, the shadow of IP law made it too risky for Swan to continue competing with Edison. The two companies merged.

In the process, competition in the light bulb market — and therefore the race to roll out improvements resulting in less-expensive, longer-lasting light — was severely curtailed. It would be half a century before ordinary Americans could afford electric lights.

For that to happen, it took not only the invalidation of key patents claims surrounding the light bulb, but also a bitterly contested political battle over the entry of federal and local governments into the business of electricity generation and supply.

The story of the light bulb reveals that the relationship between patents, innovation, and the spread of new technologies is more complex than is widely understood.

Companies who stand to benefit from longer, stronger patent protection would have us believe that patents promote innovation by providing greater incentives to invention. And there is good reason to believe that is at least sometimes the case.

But often, it works the other way. Patents are claimed by parties with no unique claim to invention, and used as weapons to stifle competition.

The result can be a paradoxical delay in scientific advancement, widespread access to new technologies, and opportunities for new businesses and opportunities that build upon that technology.

For an illustration, consider the biggest technological game-changer since electricity itself: the Internet.

Where would we be today if Robert Cailliau and Tim Berners-Lee had sought patents on the World Wide Web in 1990, requiring anyone who wanted to provide a web-based service to negotiate a license with them?

Would we have smart phones, apps, and cloud computing today? Start ups? Google? Wikipedia? Internet memes? Even online shopping?

Almost certainly not. Software-based innovation moves so fast precisely because the Internet open, its underlying technology not controlled by any one company. It’s one area where IP law doesn’t get in the way of innovation.

Ensuring that access to new technologies spreads as rapidly as possible is an issue of distributive justice and, I argue, human rights.

But it’s also critical to economic growth. Each new technology paves the way for the next generation of business opportunities. When we slow their spread, we are shooting ourselves in the foot.

For more on these ideas, check out my speech at the Yale ISP’s recent conference on Access to Knowledge and Human Rights or my article forthcoming in the Wisconsin Law Review entitled The Right to Science and Culture.

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