The Mith of the Sole Inventor

MLR 110-5

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The Myth of the Sole Inventor-1

THE MYTH OF THE SOLE INVENTOR†

Mark A. Lemley*

Abstract The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. lone genius inventor is largely a myth. But the canonical story of the Surveys of hundreds of

significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to The result is a real Our dominant theory of

be a social, not an individual, phenomenon. problem for classic theories of patent law.

patent law doesn’t seem to explain the way we actually implement that law.

† *

© 2011 Mark A. Lemley. William H. Neukom Professor, Stanford Law School; partner,

Durie Tangri LLP, San Francisco, CA. Thanks to David Rizk for extraordinary research assistance and Rochelle Dreyfuss, Jeanne Fromer, Rose Hagan, Ran Hirschl, Amy Landers, Jeff Lefstin, Michael Martin, Peter Menell, Lisa Larrimore Oullette, Jay Thomas, John Turner, Hal Varian, and participants at workshop at Stanford Law School, the Hastings College of Law, and the IP Scholars‘ Conference for comments on a prior draft.

U of M Law School Publications Center, July 21, 2011, 9:45 AM Page 1

Electronic copy available at: http://ssrn.com/abstract=1856610

MLR 110-5

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The Myth of the Sole Inventor-1

Maybe the problem is not with our current patent law, but with our current patent theory. But the dominant alternative theories of

patent law don’t do much better. Prospect theory – under which we give patents early to one company so it can control research and development – makes little sense in a world in which ideas are in the air, likely to be happened upon by numerous inventors at about the same time. And commercialization theory,...