Genius, Not Work

In the days when paunchy Thurman Arnold breezily fired anti-trust suits, like howitzer shells, at U.S. corporations, he reserved a supporting machine-gun drumfire for corporate patent practices. His tracers indicated that many a U.S. corporation used patents to restrain trade, i.e., by mass research to make minor patentable improvements, thereby extending original patents far beyond their 17-year limits. Before Arnold could bring his heavy guns to bear, he was upped to the U.S. Court of Appeals. Many a U.S. businessman relaxed. But from his new vantage point, Justice Arnold last week shook them with another howitzer blast.

With Associate Justices Henry Edgerton and Justin Miller agreeing, he upheld the U.S. Patent Office refusal of a patent to the Teletype Corp., a Bell Telephone subsidiary, for an automatic stock quotation board for brokers' offices. It is designed to replace the present hand-marked board. Ruled Justice Arnold:

"The improvements represented a high degree of skill . . . but not invention. Patents . . . are not intended as a reward for a highly skilled scientist who completes the final step in a technique. They are not intended as a reward for the collective achievement of a corporate research organization. To give patents for such routine experimentation ... is to use the patent law ... to create monopolies for corporate organizers instead of men of inventive genius. We are bound to interpret the patent law ... to reward individual and not group achievement."

Back in 1941, the U.S. Supreme Court took a major step along this line in its famed "flash of genius" decision involving the Cuno Engineering Corp. But Justice Arnold had taken a big leap further, to establish an outpost on the far left. Because modern corporate research is based, not on the flash of genius, but on the work of groups painfully sifting through thousands of costly experiments, the new ruling, unless reversed, may make many a corporate discovery unpatentable. Of this possibility, Manhattan's conservative Journal of Commerce took a Stygian view, saying: "The Arnold dictum . . . could spell the end of legal protection for the fruits of industrial research."

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