JuriSnippet: Climate Change Hearing

Those who have been following the debate over global climate change are undoubtedly familiar with the dendroclimatology “hockey stick” plot, perhaps made most famous by Al Gore when he showed one version of it in his film An Inconvenient Truth.  The scientific criticism of the plot has mostly been led by Stephen McIntyre and Ross McKitrick, who engaged in a persistent effort to establish their credibility in what was for them a new field.  They received a significant boost when physicist Richard Muller expressed agreement with their criticisms in 2004, and it has forced re-examination of one result that has perhaps become too iconically associated with climate-change research. 

Muller was one of several who testified at a Congressional hearing on climate change last week that had been called by Republican leaders of the Science & Technology Committee who are skeptical about the reliability of climate research.  The comments of the six witnesses can be read here and include many observations that have previously been made.  What is attracting most interest, though, was the report by Muller showing that preliminary results of his Berkeley Earth Surface Temperature Project show warming trends that are similar to those found by other groups. 

Some of those attempting to politicize climate research have hinted that Muller has somehow betrayed them.  But what he has really done is his job as a physicist:  criticizing work when it deserves it, adding his own piece to the collective puzzle, and accepting the scientific results whatever they happen to be.

Not Contented With Things as They Are

Among lawyers, patent attorneys tend to be among the more reserved.  We mostly spend our days quietly crafting language to describe and protect inventions, and pride ourselves on the use of subtlety.  Sometimes our area of the law is described as “arcane.” But every now and then, our lives are thrown into turmoil by an invention of such importance that men will  lie, swindle, and bribe to get credit for it, not only for the immediate financial gain but also so that history will forever remember them as having invented something that changed the world. 

Alexander Graham Bell

Surely one of the most intriguing such stories involves three men:  Elisha Gray, Zenas Fisk Wilbur, and Alexander Graham Bell.  Schoolchildren still learn the story of how Bell, whose mother and wife were both deaf, was diligently experimenting with hearing and speech, leading him to develop sound devices and eventually the telephone.  They are reminded of Bell’s first words over the device to his assistant, “Mr. Watson.  Come here.  I want to see you.”  Perhaps they are even told the quaint story of how Bell himself viewed the telephone as an intrusion on his real interests and refused to have one in his study.   

But the drama surrounding Bell’s credit for having invented the telephone is far more interesting, at least among those who are attracted to scandal and intrigue. 

Bell’s patent application for the telephone was filed on Valentine’s Day, 1876, the very day that Elisha Gray filed his own claim with the Patent Office.  The Examiner to consider the application was Zenas Fisk Wilbur, known to be an alcoholic, and there are enough irregularities surrounding the application that people to this day wonder whether Bell (or his attorneys) conspired with Zenas Wilbur to defraud Elisha Gray from his rightful claim.   

There is Claim 4 of Bell’s patent, which can be found here.  One of the more important claims in the patent, it recites a feature that was not shown in any of the drawings Bell included with his application, but it is present in the drawings Elisha Gray filed that day.  More damning, the feature is described in seven mysterious sentences that were written into the margin of the application.  Allegations were made that Zenas Wilbur had shown Gray’s document to Bell’s attorneys and allowed them to make the insertions, ultimately resulting in Bell being awarded the patent.  It would be ten years later that Zenas Wilbur swore in an affidavit to the Congressional Telephone Investigation Committee that he had, in fact, been handed a $100 bill by Bell himself when Bell visited the Patent Office and Wilbur improperly showed him Gray’s material. 

To this day, no one is certain whether Wilbur was actually bribed.  In his affidavit, he recants statements made in earlier affidavits, claiming to have been “afflicted with and suffering from alcoholism” and that with his “faculties … not in their normal condition [he] was, in fact, duped.”  Nonetheless, the U.S. Supreme Court, even after Wilbur’s confession that he received a bribe, found in The Telephone Cases that Bell’s patent was valid and that he was the inventor of the telephone.  A copy of The Telephone Cases can be found here.  (It is worth noting the 2008 book by Seth Shulman entitled The Telephone Gambit.  Shulman reviewed Bell’s notebooks, which can be found here, and identified what he believes to be a “smoking gun” — a drawing in Bell’s notes that essentially duplicates a drawing from Gray’s confidential patent submission).   

Elisha Gray

People sometimes point to Bell and Gray, and argue about which of them actually filed first with the Patent Office.  They certainly filed on the same day, but there is some question which of them was actually first.  It is an interesting academic question, but is, in the end, largely irrelevant in deciding who deserved the patent.  At the time, and to this day, the United States uses a “first to invent” system rather than the “first to file” system used elsewhere in the world.  Under the U.S. system, a race to the Patent Office is less important than the timing of actual invention.  The U.S. is the last country in the world to use this system, with Canada and the Philippines having adopted “first to file” systems in 1989 and 1998.  The “first to invent” system can be more complex, entertaining the difficult role of deciding when someone “invented” something rather than relying on the simple and clear determination of who filed first with the Patent Office.  But at the same time, the “first to invent” system gives greater recourse to individual inventors and small startup companies who may have lacked the resources and machinery to file patent applications as quickly as larger corporations. All that may be about to change.  

 This week, Representative Lamar Smith, chairman of the House Judiciary Committee, unveiled the House version of the America Invents Act, a copy of which can be found here.  It includes significant changes in the U.S.’s patent laws, adopting many of the same principles found in a similar bill approved by the Senate on March 8, 2011.  The Senate version of the bill passed with a vote of 95–5, and the President has indicated his intention to sign such a bill if presented to him.   

The Act would alter U.S. Patent Law in a number of ways.  It expands the ways in which third parties can challenge patents within the Patent Office instead of resorting to courts.  It alters the importance of the U.S.’s unique requirement that inventors disclose the “best mode” for practicing their inventions.  It gives the Patent Office increased authority over the way it charges fees.  And in addition to a variety of other changes, it perhaps most importantly would convert the U.S. patent system into a “first to file” system.  It seems inevitable that these changes will occur, and with the House now poised to act, it will probably happen relatively soon.  The U.S. has long toyed with the idea of changing to a “first to file” system so that its patent laws are more harmonious with those of other countries.  There remain some issues to work through:  there are the specific details to be reconciled between the House and Senate versions, and there is the lingering question of whether a “first to file” system is Constitutional in the United States; some scholars insist that only a “first to invent” system is consistent with the language of the Patent Clause.   

When the U.S. does make the switch, patent attorneys will still be practicing in an arcane area of the law.  But it will be with the heat of the metaphorical race against our colleagues to the door of the Patent Office hot on our heels.