All Hands on Deck: Ensuring Innovation, Not Just Patents, From All

As the Iancu era at the U.S. Patent and Trademark Office comes to a close, one of the USPTO’s initiatives has focused on promoting diversity in patenting.  The newly established National Council on Expanding American Innovation, and the associated USPTO request for comments on a national strategy for expanding innovation, focus on having under-represented groups more involved in creating patentable inventions.

That’s a laudable goal.  But we shouldn’t be aiming just to have more under-represented groups receive patents.  More patents doesn’t necessarily mean more innovation, it just means more patents.  Instead, we need to ensure that those groups are both provided the support to innovate and that their innovation is recognized.

To do that, we have to change how we talk about innovation.  In a recent article, Prof. Anjali Vats notes that the “stories that people tell about invention in the U.S. continue to focus on white men – the Benjamin Franklins, Thomas Edisons and Elon Musks – without affording women and people of color the same larger-than-life status.”  Often, those stories focus on lone individuals, not teams.  Those failures lead to barriers to innovation by under-represented groups whose contributions may not fit that model.

As one example, many—including USPTO Director Iancu—like to lionize Thomas Edison as the prototypical heroic inventor.  They point to him as a role model.  But Edison is a perfect example of the problems with the “heroic inventor” story.  Edison employed a large staff who did much of the work of his inventions—without those “muckers”, he’d have gotten much less done.  And of course, Edison was neither the inventor of electric light nor the inventor of a practical light bulb.  Alessandro Volta, the namesake of the word “voltage”, generated light from electricity 80 years before Edison did.  Humphrey Davy invented the electric arc light, which was in wide use in the 1800s, although it was impractical for home lighting.  

And while Edison devised a carbon filament bulb, his bulbs only burned for a few days before they burnt out.  It was Lewis Latimer who devised a process for making a filament sufficiently useful to allow electric lighting to become widespread.  Latimer also wrote the first technical book regarding electric lighting.  He even drafted the drawings for Alexander Graham Bell’s telephone patent—an application which beat Elisha Gray’s competing application to the patent office by only a few hours.

Latimer was African-American, the son of an enslaved person.  His story isn’t often mentioned alongside contemporaries like Edison or Bell when talking about American inventors, despite having been as or more responsible for the invention of electric light.  Similar “hidden figures” include Katherine Johnson, a NASA engineer, and other women who worked as “computers” for the Army, for astronomical calculations, and to support the Works Progress Administration.  

While these stories have been popularized, how many more unrecognized innovators are out there whose contributions were never recognized because they didn’t fit the model of “lone inventor creates idea and patents it”?  How many more innovations could we have if that wasn’t what was promoted as the primary model for innovation?

Instead of focusing on promoting patenting activity and lionizing heroic inventor stories, let’s try to promote innovation and recognize forms of innovation that don’t fit neatly into the patent framework.  Collaborative research, open-source and open-science models, and other such forms of innovation are at least as important as patents—let’s give them at least as much priority.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

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