Yesterday's wisdom from Justice Bradley should be supplemented with another quotation:

"Like almost all other inventions, that of double brakes came when, in the progress of mechanical improvement, it was needed; and being sought by many minds, it is not wonderful that it was developed in different and independent forms, all original, and yet all bearing a somewhat general resemblance to each other. In such cases, if one inventor precedes all the rest, and strikes out something which includes and underlies all they produce, he acquires a monopoly, and subjects them to tribute. But if the advance towards the thing desired is gradual, and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of the device which he produces, and every other inventor is entitled to his own specific form, so long as it differs from those of his competitors, and does not include theirs."
-- Railway Co. v. Sayles, 97 U.S. 554, 556-57 (1878)(the Tanner Brake case)(Again, this is not a case found on the Internet, except via the subscription services. Findlaw goes back only to 150 U.S.)

The "specific form" language is crucial. A problem with many business method patents is that they embrace not just the specific form or mechanism but the goal that is sought. Yet the desirability of that goal may be obvious, even if the method for getting there is not. Thus Tanner could not patent the idea of double brakes that applied pressure to both sets of wheels on a railroad car undertruck at the same time; everyone knew that was a desirable goal. He could patent only his solution. Similarly, Amazon should not be able to patent the idea of one-click, which is obviously a worthy goal, but only its specific implementation mechanism.

posted by James DeLong @ 8:56 AM | General

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