Was the Telescope Obvious? An Inquiry into Simultaneous Invention

by Peter Gratzinger
13 Colum. Sci. & Tech. L. Rev. 71 (Published Feb. 15, 2012)

Abstract

History is full of inventions that multiple people appear to have arrived at independently at about the same time, from the telescope (Lippershey, Metius, and others, 1608) to the telegraph (Morse, Steinheil, and others, 1837). Simultaneous independent invention is so common that some commentators have wondered if inventions are inevitable, the byproduct of existing culture rather than the work of individual genius. This philosophical problem has important practical implications in intellectual property law, which is deeply conflicted on the issue. On the one hand, the Patent and Trademark Office has procedures in place to award a patent to the winner of a race between two or more groups for the same invention. On the other hand, the Federal Circuit recently confirmed that simultaneous independent invention can indicate that the idea was obvious and nobody deserves to patent it. This Article explores this conflict, including recent case developments, and suggests a potential resolution.

About the Author

Associate, Munger, Tolles & Olsen LLP. J.D. (with honors), Stanford Law School; M.A., New York University; B.S., University of California, Berkeley.

Mr. Gratzinger graduated with honors from Stanford Law School in 2003 and served as Executive Editor of the Stanford Law Review. Mr. Gratzinger completed his first year of legal studies at New York University School of Law, where he earned the John Norton Pomeroy Prize for academic excellence and was a member of the Trial Advocacy Team.  He has litigated a variety of patent cases involving software, semiconductors, electronic commerce, and telecommunications. He has also represented clients in trademark, trade secret, and antitrust matters.

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