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Steve Jobs Didn’t Build That

Publication Date: 
July 19, 2013
Sean McElwee

Professor Mark Lemley is quoted by Salon's Sean McElwee on patent law and how invention appears to be a social phenomenon.

As Republican obstruction kills immigration reform, the next problem Congress and the president will try and fail to fix is the patent system. Specifically, they'll target "patent trolls," companies that buy patents and use them to create endless litigation.

But the larger problem they fail to see is that America's patent regime is based upon a flawed model of innovation and will hamper innovation, while increasing inequality.


Innovators, in addition to standing up on the shoulders of giants, rarely work alone. Innovators often rely on massive funding by corporations like Bell Laboratories, universities or governments, and therefore do not need patent protection. Mark Lemley, a Stanford professor who had done extensive research on patent law, writes, "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 be a social, not an individual, phenomenon." His research confirms Foucault's thesis and expounds upon its implications.

The history of significant innovation in this country is, contrary to popular myth, a history of incremental improvements generally made by a number of different inventors at roughly the same time. Our patent system, by contrast, is designed for a world in which one inventor of extraordinary skill does something no one else could have done.