The Man Who Created the Pencil Eraser and How Patents Have Changed

fermion writes "This weeks 'Who Made That' column in The New York Times concerns the built in pencil eraser. In 1858 Hymen Lipman put a rubber plug into the wood shaft of a pencil. An investor then paid about 2 million in today's dollars for the patent. This investor might have become very rich had the supreme court not ruled that all Lipmen had done was put together two known technologies, so the patent was not valid. The question is where has this need for patents to be innovative gone? After all there is the Amazon one-click patent which, after revision, has been upheld. Microsoft Activesync technology patent seems to simply patent copying information from one place to another. In this modern day do patents promote innovation, or simply protect firms from competition?"

Comments

it looks like they...

[Sigvatr]

erased his patent i'll just see myself to the exit

Revised Summary

[cosm]

In this modern day patents simply protect firms from competition.

Re:Revised Summary

[_merlin]

In this day and age everyone would just be giggling about a guy being called "hymen" of all things.

Re:Revised Summary

[William-Ely]

I wish I could mod this post "Sad but True".

Re:Revised Summary

[tmorehen]

Patents have always protected firms from competition. That has always been part of their purpose. Another part of their purpose is to enable some one ordinarily skilled in the art to duplicate the invention when the patent expires. That's the trade-off that justifies patents, as opposed to treating inventions as trade secrets.

What has changed is the definition of obviousness and consequently innovation. Now something is innovative if no one can point to prior art, notwithstanding that it may be obvious to the proverbial someone skilled in the art. Today, the pencil plus eraser would be patentable.

Another thing that has changed is that patents have become so vague that they cannot be duplicated nor can anyone be certain what they cover. This is particularly a problem for business method and software patents.

Re:Revised Summary

[Chemisor]

In this day and age everyone would say that his name was obviously the source of his invention, being a constant reminder to put a rubber on his pencil.

Re:Revised Summary

[Anonymous Coward]

Actually, I think even the idea of enabling people to duplicate inventions is not working anymore

I read an article (can't remember where), saying that companies are actually FORBIDING their employees from checking the patent database, just in case they find out that another patent might perhaps cover something they are working on.

This way, if a lawsuit occurs, they can claim ignorance of existing patents.

But the downside is that people are actively avoiding looking into patent descriptions.

Re:Revised Summary

[0123456]

I read an article (can't remember where), saying that companies are actually FORBIDING their employees from checking the patent database, just in case they find out that another patent might perhaps cover something they are working on.

Yes. In my previous job, we weren't allowed to read patents for that reason.

You know where it went..

[djupedal]

Into the hands of lobbyists, who paid for legislators to make it a pay-to-play activity.

I'm working on a patented drinking fountain water filter that will be required by law for use in all public schools, hospitals and train stations - it will also be a law that they must be replaced every 30 days with a recycling fee paid to franchised non-profit companies staffed only by the homeless.

Re:You know where it went..

[hedwards]

You're missing the point. A lot of this was unintentional. They made the USPTO run on fees that were charged for patents which gave the USPTO and incentive to rubber stamp patents while not receiving sufficient funding to cover the cost of having patent examiners that could do the investigation that they used to do.

What needs to happen is that the USPTO needs to go back to being a government service the user fees need to be based upon the amount of time and energy it takes to deal with the application. And while we're at it, the duration of the patent period should go from the point where the first application is received to a reasonable period after that. For technology 7 years is likely more than adequate as a lot of that IP is no longer of value several years later.

And obviously, anybody filing for a patent on software gets to volunteer to test the prototype rectal exam bots.

Re:You know where it went..

[whoever57]

A lot of this was unintentional. They made the USPTO run on fees that were charged for patents which gave the USPTO and incentive to rubber stamp patents while not receiving sufficient funding to cover the cost of having patent examiners that could do the investigation that they used to do.

What makes you think that the effects of those changes were unintentional?

Re:You know where it went..

[dweller_below]

You're missing the point. A lot of this was unintentional. They made the USPTO run on fees that were charged for patents which gave the USPTO and incentive to rubber stamp patents while not receiving sufficient funding to cover the cost of having patent examiners that could do the investigation that they used to do.

I'd like to think that this mess is unintentional. But many of the recent changes to the USPTO appear to have optimized it to create lots of poor quality patents. I believe that we could reverse these changes. But, we would need to muster the political will to admit we have made mistakes. I have listed some of these obvious structural problems at: https://plus.google.com/b/101806809558932714222/101806809558932714222/about

I believe that the most serious problems with the structure of the USPTO are:

• 1) More patents are not better than fewer patents. Patents are not Innovation. Patents are not Progress. Patents are simply grounds to file a lawsuit against an industry. More Patents are simply more grounds for more lawsuits. An occasional lawsuit might spur innovation. BUT LAWSUITS DO NOT PRODUCE. Lawsuits are parasitic on innovation and production. Reform must recognize that patents are dangerous monopolies. Reform must place hard limits on the number of patents.
• 2) Running the US Patent Office as a cost-recovery operation is a mistake. The US Patent Office is a very small, but critical component of the US economy. It's purpose was "..to promote the Progress of Science and useful Arts.." (US Constitution Article One, Section 8(8).) But, once the USPTO started to become completely cost recovery, (See: Omnibus Budget Reconciliation Act of 1990, Title X, Subtitle B), that primary goal became overshadowed by the more pressing goal of securing funding via patent fees. The primary effect of cost recovery has been to promote the collection of patent fees. Reform is painful, but simple. Admit cost recovery is a failed experiment. Revert the funding model to the model used for the first 200 years. The USPTO must be centrally funded by the US government. Any collected fees should be returned to the US Government.
• 3) It is a mistake to organize the US Patent Office to create economic incentives to grant poor patents. Currently most of the revenue of the US Patent Office comes from GRANTING patents. See the USPTO FY 2013 President's Budget page 37: www.uspto.gov/about/stratplan/budget/fy13pbr.pdf "..More than half of all patent fee collections are from issue and maintenance fees, which essentially subsidize examination activities." A recent study by the Richmond School of Law found that the USPTO's actual grant rate is currently running at about 89%. In 2001, it was as high as 99%. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2225781 page 9. In 2001, it didn't matter if an application was overbroad, obvious, trivial, a duplicate, or unreasonable, they ALL got granted. Things haven't improved much since then. Reform could come in many forms, but the simplest and most reliable would be to eliminate and unify the Patent office fees into a single filing fee. This fee would provide no guarantee of receiving a patent, only a guarantee that your patent would be considered. This would free the Patent Office to be able to deny poor patents. The filing fee should be high enough to discourage spurious patent applications.
• 4) Scaling up the Patent Office to produce more poor quality patents is a mistake. Currently, we expand the number of patent examiners based on demand. See the USPTO FY 2013 President's Budget, page 60, Gap Assessment: "Meeting this commitment assumes efficiency improvements brought about by reengineering many USPTO management and operational processes (e.g., the patent examination process) and systems, and hiring about 3,00

Lawyers

[mtrachtenberg]

Lawyers and lobbyists have come a long way since 1858; with enough lawyers and lobbyists today, ScrewCorp could patent a pencil colored yellow.

Re:Lawyers

[g01d4]

Really? This link sounds more reasonable:

During the 1800s, the best graphite in the world came from China. American pencil makers wanted a special way to tell people that their pencils contained Chinese graphite. In China, the color yellow is associated with royalty and respect. American pencil manufacturers began painting their pencils bright yellow to communicate this regal feeling and association with China.

"Service economy" became "parasite economy"

[oldhack]

"Service economy" with IP fantasy led to this bullshit world for the West and other developed countries.

And it would. Bureaucratic, parasitic, loophole-exploiting endeavors like lawyering, bankering, lobbying are most rewarded.

The West is rotting from within.

Skewed perspective

[10101001 10101001]

Oh where do I begin to describe the skewed perspective of this article. It seems clear the author had recently read the book "The Pencil" and thought they could write up a little tidbit about it with patents. But, when you start doing the math, it really falls through. The "invention" was created in 1858. The supreme court ruling about the patent came in 1875, nearly 20 years later (so at the point where the patent would have nearly expired anyways). Meanwhile, it's not really at all clear that the whole eraser-on-pencil really took off on its own. It sounds like, instead, some American companies liked the idea (perhaps to match parity with said investor, Joseph Reckendorfer) and started producing such pencils. Meanwhile, some 60+ years later and Europe still wasn't making such pencils (well, not commonly enough, anyways).

Oh, and the best part is the silly:

So does our pencil say something about us as a people? A writer for a 1922 issue of American Stationer and Office Outfitter thought so: “Throughout Europe, the rubber-tipped pencil is practically unknown,” they wrote. “It may be that foreigners consider themselves less apt to make mistakes than the happy-go-lucky Americans.”

Or it could be that, oh, Europeans were still using their separate erasers and perhaps snarkily mocking the Americans for throwing away tons of perfectly good erasers just for the convenience of having one glued to the end of their pencil. Meanwhile, the more honest truth is probably the more simple that European pencil manufacturers probably didn't think there much demand and the vast majority of people weren't going to pay a premium to import the stupid things In the end, wide scale adoption would have more to do with there being only a few manufacturers which made up the effective industry in the area and with a majority all deciding something, whatever it was, was a good enough idea and offering the X + Y product as either a replacement for X or as a premium version of X, wide side adoption basically inherently happened. But even today, plenty of places sell pencils without erasers. And there's separate eraser heads you can pull off and reuse until they're heavily wore out (although those are still mighty wasteful as usually the base is pretty unusable for erasing.

So, now with that, I can happily say my comment is about as much a rambling little conjecture as the article.

Strategic Warfare

[Somebody Is Using My]

The shift in policy is an intentional, if unwritten, strategy intended to keep America a competitive force in the world's economy.

In the past, America's power was based on its vast, untapped resources; steel, oil, cotton, grain, whatever - we had it and could rip it out of the ground cheaply. We sold these resources to the world and became rich. But these days other developing nations are willing to sell their resources far beyond what we can afford, and we can no longer depend on those resources as the primary engine of our economy.

Later, America's strength came from its industry; our factories produced high-quality goods in vast quantities. And we became rich again (well, even richer). But today, we've sold the technology to poorer nations, and their citizens are willing to work for wages that would starve our own people. So America can no longer depend on its industry to sustain it.

So instead, we've turned to our ingenuity and inventiveness as a way to ensure our dominance; our patents, our copyrights, our trademarks. We've hitched our wagon to the idea that our "intellectual property" will keep us a prominent force on the world stage. Of course, an idea is worthless unless somebody is willing to put it to use (the greatest movie in the world won't bring in a cent unless you get people to pay you to watch it). So we make all our ideas available to the world... for a price. And we have greatly bolstered our laws - and made clear our willingness to use force to defend those laws - to ensure that OUR ideas are not used without our receiving adequate recompense.

Except great ideas - the ones that bring in great wads of cash - are difficult to come by (Sturgeon's Law applies with ideas too) and while inspiration can be encouraged, it cannot be forced. So rather than depend on those rare strokes of genius, we ensure that even our less-stellar conceptions are protected the same way as the truly inspired ideas. Patents are increasingly granted on the most insignificant, inconsequential and mundane ideas because it brings in the money.

This is not to say there is some overreaching planned conspiracy; there was never a shadowy group of power-brokers chortling in some dark room as they moved the nation onto this new path. But America has always followed the path of money, and right now the big money is in intellectual property. Keeping its businesses strong makes strategic sense. Thus, we see an increased strengthening of certain laws (or weakening of others) to protect the interests of those businesses.

That's why there is little incentive to revamp the patent system, or bring copyright back down to sensible terms. It's why the American government is pushing so hard to enforce its copyright laws in other countries. It's why there is such a concern about copyright violations and why the Internet scares the people in power so much. American hegemony, they believe, is directly tied to how much intellectual property it owns, and how well it is protected.

Independence of the courts ?

[Taco Cowboy]

In this modern day do patents promote innovation, or simply protect firms from competition ?

The issues regarding patents are not only about patents, but also the courts.

As the pencil and eraser case (circa 1858) has illustrated, the court back then still managed largely to uphold their independence.

Not now.

Today, the courts have become an apparatchik for the corporations, the banksters, the politicians, and the power that be.

Judges back then were chosen based on merits. Judges today are chosen based on who they know.

Re:Independence of the courts ?

[Aviation Pete]

Judges back then were chosen based on merits. Judges today are chosen based on who they know.

or maybe the are simply incapable to understand the issue. Back then, a patent had one or two pages and described a (mostly mechanical) issue in simple language. Lawyers today make sure that a patent is minimum 50 pages, and some run to more than 1000. The language is extremely formalized and very hard to read for untrained minds. And the issues are so specialized that the average judge would have to train several years in the particular field to understand what the invention is about.

Besides - most patents today have most of their innovation in the way the lawyers complicate simple issues. Sigh.

Re:Independence of the courts ?

[Anonymous Coward]

"Today, the courts have become an apparatchik for the corporations, the banksters, the politicians, and the power that be."
"Judges back then were chosen based on merits. Judges today are chosen based on who they know."

Are you kidding me? Cronyism was way worse in the 19th century. And if you think corporations wield power now, then you'd crap your pants if you read any in-depth history of the gilded age.

Patent lawyers know exactly what changed between then and now: the movement of all judicial patent appeals to the Court of Appeals for the Federal Circuit. The court effectively specializes in a small number of cases, and has taken up the cause of making patent rights more robust. The chief judge of this court has actually written the book on patent law, and he's about as pro-patent as you can possibly get. This is conservative judicial activism at it's absolute finest.

FWIW, there have been two ebbs in American patent law. The middle of the 19th century and the middle of 20th century were when patent rights were at their weakest. The highest point before the modern era was roughly around the time of the New Deal, when courts slowly became more deferential to Congress because of the turbulent times. This was when agricultural patents (e.g. on seeds and cultivars) came into force (i.e. Plant Patent Act of 1930).

But the power of patents today is simply beyond all comprehension. The run up began in the 1970s, but didn't really get moving until the Court of Appeals for the Federal Circuit was created.

Re:Independence of the courts ?

[Jane Q. Public]

"Back then, a patent had one or two pages and described a (mostly mechanical) issue in simple language. Lawyers today make sure that a patent is minimum 50 pages, and some run to more than 1000. The language is extremely formalized and very hard to read for untrained minds. And the issues are so specialized that the average judge would have to train several years in the particular field to understand what the invention is about."

Maybe, but -- though I hate to put it this way -- it's really not that simple. Complexity has little to do with the subject under discussion.

The one-click patent, for example, should never have been awarded because it did nothing new.

Not only must a patent be non-obvious to someone in the relevant field, and not only must there not be "prior art" (someone else already doing something too similar) it must also be an actual invention. That is to say, it has to be or do something completely new. The point made by the court in OP's post is that it was not an invention because it was just two common things, stuck together.

A can opener welded to a crowbar is not patentable, because it doesn't do anything new or in a novel way. It's still just a can opener on one end, and a crowbar on the other. But if you stuck two common things together in such a way that the result does something new, then you have a patentable invention.

If you found a way to make a fan that blows air out of potato chips, in principle that would not be patentable, because you just "stuck together" two existing things; fans and potato chips. It doesn't do anything novel. But if you could build a fan out of potato chips in such a way that it was still edible, you would have a patentable invention because it does something new.

Re:Independence of the courts ?

[Dachannien]

Well, most (not all) computer software related patents run maybe 20-25 pages double spaced, plus figures. As a printed issued patent, they're a good bit shorter than that page-wise. Very few go a thousand pages long, because it costs extra.

The real problem in the courts is, as you say, that the judges have very little expertise in the relevant arts. Thus, each side presents its expert witnesses who say the exact opposite thing from each other (look hard enough and you can find an "expert" to support just about any argument you might have), and the judges are none the wiser.

At the PTO, you're right that attorneys draft applications to intentionally confuse. Claims are drafted using vague language for the sake of vagueness, which results in claims that cannot practicably be fully searched. The objective is in many cases not to get a good patent, but just something with a patent number on it, because attorneys know that even a bad patent has value if nobody is willing to pony up the cash to challenge it. The PTO is hamstrung in addressing these issues by the case law, which says that vagueness is not the same as indefiniteness, and so we can't reject claims solely for being vague if the scope of the claims can be discerned.

The only place we get any real sanity is (in sparing quantity) from the Supreme Court, who occasionally say things like, this is clearly an abstract concept, so it's not patentable, or this is just common sense, so it's obvious, or what have you. When this happens, it helps the PTO and the courts weed out some subset of the bad applications and patents. But out of all the patent cases litigated every year, maybe one or two of them make their way to the SCOTUS, so arriving at eventual sanity will take a long, long time.

Re:Independence of the courts ?

[Nemyst]

The point of the GP is that even a simple patent like Amazon's one-click can be obfuscated, given an army of lawyers, into something unintelligible for most people, judges included. Since there doesn't seem to be a clause for lack of clarity being grounds for patent rejection (which would help a lot in situations like this), the judges just accept them instead of trying to learn or, worse, looking foolish for acknowledging that they don't understand the patent (gasp!).

Re:Independence of the courts ?

[Anonymous Coward]

That is to say, it has to be or do something completely new.

I'm confused, really -- what part of "... On a Computer" do you _not_ understand?

Re:Independence of the courts ?

[Jane Q. Public]

Apparently you missed my point. It might have been useful, but it didn't do anything NEW. Erasers already existed, pencils already existed. My example of the can opener and the crowbar are the same: nothing new is added. It might be useful, or even more useful; it might be more convenient. But neither of those are considerations for the award of a patent.

Patents are only supposed to be awarded to things that do something new, or that do things that are not new, but in significantly different way. The pencil + eraser example does neither.

Re:Independence of the courts ?

[TsuruchiBrian]

Actually, I don't see why that is relevant since a pencil with a built in eraser did do something new - it erased out of the box which apparently was new for pencils at the time.

Yes but it was pretty standard for erasers to erase right out of the box.

This is about the most straight forward example of just combining 2 existing inventions. We all know that pencils can do things that erasers can't, and that erasers can do things that pencils can't, and that a pencil with an eraser attached can do both things.

This same property holds for any 2 inventions glued together. TO use Jane Q Public's example of a can opener welded to a crowbar, I can say the same thing. Before this new invention, crow bars could not open cans out of the box. So what? Can openers could open cans out of the box.

I think a more important question to ask is the following: What does society gain by allowing these types of "inventions" to receive a government sanctioned monopoly? The normal deal is that the monopoly provides an incentive to the inventor that he wouldn't otherwise have. I am 100% sure that someone else would have been willing to dedicate the time and effort into research and development to put an eraser on a pencil even without the prospect of a monopoly.

We should only be offering the monopoly when it is unlikely that an inventor would be willing to spend the time an effort to create the invention without it, as in the case with inventions that have very high research and development costs. All other patents actual stifle innovation rather than spur it.

Re:Independence of the courts ?

[mrchaotica]

Not only was it not common then, it's not common now.

Of course it's not common now, it's fucking patented!

Re:Independence of the courts ?

[chrismcb]

It sounds like you don't understand what OneClick is. Not only was it not common then, it's not common now.

It wasn't common then because people didn't think consumers would want to buy something with one click. Cause you know, spending money without authorization is kind of scary. And of course now it is patented, so its not common.
But I wouldn't be surprised if the concept of "one click" didn't already exist, just not for buying something.

Re:Independence of the courts ?

[canadian_right]

The usa patent system doesn't really use the "non-obvious" test. Non-obvious is supposed to be non-obvious to a qualified practitioner of the field in question. I'm pretty sure I could have implemented one-click if asked.

The USA patent system seems to operate on the the basis of "if we can't find a patent for it then we'll patent it". The bar is set much too low.

Re:Independence of the courts ?

[TrekkieGod]

AGAIN. How many pencils could erase out of the box?

None, and still none. The pencil doesn't erase, the eraser that came attached to it does. An eraser erasing isn't surprising or revolutionary.

How do you attach that common pencil to that common eraser?

By your ridiculously low standards, this guy from a post I saw on reddit should be able to patent his phone stand made out of a paper clip. And it's actually more ingenious than the pencil eraser because the paper clip wasn't made for that purpose.

As people have already explained to you, the requirement for a patent isn't just that it be something new. It has to also be something that is not obvious. If you didn't encounter any technical challenges you had to solve to make your idea work once you had your idea, it's not patentable. If people had constantly tried to put erasers on pencils before, but nobody succeeded until this guy came out with a way to manufacture an eraser such that it could go on a pencil, that design would have been patentable, but others would have been free to come up with their own alternative designs to put erasers on pencils. Turns out that's not necessary, because the design is trivial.

Re:Independence of the courts ?

[jedidiah]

The purpose of patents is to not create a mindless virtual land grab. Patents don't exist to create a new form of property. Patents exist to encourage the disclosure of useful things that would otherwise remain secret.

At the heart of any patent, there should be some trade secret.

There should be something worth keeping secret.

There are those who create & those who devour

[smittyoneeach]

Some build up, through genius employed.
And lesser men must see work destroyed.

Easy: Incentives

[dcollins]

In 1990, the "everything runs better as a free market" doctrine wiped out government funding of the patent office, declaring that it would be fully funded by applicant fees from then on. (In fact, since that time Congress withholds some percentage of payments, so it's even more under-funded.) So the office doesn't work as a filter to defend a precious monopoly right, instead it's incentivized to make as many applicants happy as possible, since that's where all their money comes from. Result is a tidal wave of poorly examined patents that no one has time or resources to take court. (And yet: also an enormous and growing backlog of yet-unexamined patents). Pretty similar to how they've bent over the U.S. Post Office.

Step 1: Defund core government agency, Step 2: Complain about how government doesn't work, Step 3: Profit (for some private allied company).

http://thomas.loc.gov/cgi-bin/cpquery/?&sid=cp109OaGul&r_n=hr372.109&dbname=cp109&&sel=TOC_11043&

Re:Easy: Incentives

[the eric conspiracy]

The reason we have such crap patents right now is the bumbling fumbling stumbling Congress.

In 1982, in order to address various problems with the patent rulings being inconsistent they established the US Court of Appeals for the Federal Circuit.

This court is a Frankenstein's monster. It has created a whole new body of law by allowing such insanity as business process patents. This law has created an atmosphere so favorable to applicants and their assigns that every life-form that can croak out an 'idea' in front of a patent attorney has a chance to become an inventor.

Of course the result of this is the patent office is deluged with applications. THE HAVE NO CHANCE to process all these applications in a moderate fashion. So they are forced to take the attitude 'approve the application and let the Courts sort it out'.

That only encourages the greedy to make more garbage applications.

The Patent Office fee system was a clumsy and ineffective attempt to apply brakes to this runaway train by increasing the cost of applying and maintaining patents. You might as well try to piss upwind into a hurricane.

Right now the US Patent System is a great hindrance to innovation and economic growth in America. Will it get fixed? There is a good chance it will, because stuff like patent trolling is hurting even the big companies.

Abstract ideas aren't patentable.

[TrekkieGod]

I don't get why people think that there wasn't something new here. It's a terrible patenting example because of that.

I'm going to reply to you again, because I think I've figured out the flaw in your reasoning, and why nobody is seeing eye to eye here:

You seem to think you can patent an idea. You can't. It says so right in the uspto website.

So if you want to figure out if the patent is valid, and not obvious, you take the idea over to an expert in manufacturing. Ask him, "I want to attach an eraser to a pencil. Do you know how to go about doing that?" If he can come up with different ways on the spot, it's obvious.

On the other hand, I want rocket boots. I can go to a rocket scientist and ask him, "I want to attach rockets to boots. Do you know how to go about doing that?" He's going to tell me, "yeah, there's a ton of problems with this. We need to figure out where to put the fuel, rockets have a way of exploding, which make them not very safe, they're not particularly stable, and when you combine that with legs that can move all around you've got serious problems, etc." There are serious technical challenges to all of that. Solve any one of those challenges that experts in the field current have, and you can get a patent on it. The idea of putting rockets in boots still isn't. Your particular solution that makes it possible, or brings it closer to reality, that's patentable, if it's new and non-obvious to experts in the field.