Patently Contestable, a literary masterpiece of historical non-fiction, is a sincerely captivating tale of the telephone, wireless telegraph, and electric lamp in the late 19th and early 20th century UK. Subtly ignoring how patent history elsewhere might suggest different conclusions, these magnificently documented studies are applied to current patent-rights circumstances. Nevertheless, resembling warfare history of the same epoch, there are brilliantly narrated scenes from battles between virtually unarmed individuals and fully armored industrial titans, as fought in law courts, public opinion fields, and on many legislative tectonics’ rocky slopes. Like the newspaper adage “man bites dog,” when individuals of finite means run the gauntlet of inventorship, litigation, and monetization--and eventually survive with more than parenthetical recognition--urban legends are inspired. However, in reality, the potential inventor-heroes end up recuperating and/or destitute. Battles between industrial barons are more on the box office success scale; however, to the credit of this book, countless individuals are cited by name for their moments of sacrifice in these dramatic struggles.

A quote from the first part of an intriguing paragraph from the text (p. 74) deserves repeating:

To treat the law courts as arenas for the routine and rational application of legal doctrine would be to misunderstand entirely the ritualistic nature of their business proceedings. Successful litigation required lawyers, advisors, and patentees to develop presentational strategies and exhibit expertise, evidence, and legal reasoning in order to persuade judges of the veracity of their case. Those who achieved the mastery of such skills to serve a client’s interests forged successful legal careers. Barristers of the caliber of Fletcher Moulton, Richard Webster, or Horace Davey built their reputation not only as powerful orators but also as skilled manipulators and inquisitors of testimonies or scientific explanations.

Now comes the understatement of this book’s constructive conclusions, where an ongoing illusion of similarity between then and now suggests that the system works and that enterprise ethics and legal equity are innately self-correcting, helping us to properly navigate to a better future. But this begs the question: since our problems so resemble their problems, have any of these solutions fixed anything at all, or were they just fictional instances of Pyrrhic victories, public opinion illusions, and quaint bumps in the road to winning the ongoing transnational monopoly game? Well, regardless of my altruism, I cannot go on record to suggest alternatives to the menu of history, but (“spoiler alert”) I can present some factual-sounding fictional allegories.

First, according to Terrell, the earliest patents were issued when a king’s treasury could not pay debts, so they gave out monopoly rights in lieu of payment, such as an exclusive right to sell silk in the kingdom, or an exclusive right to import grain. Does this not remind you of current practices of privatization of utilities and of other service monopolies that are almost essential human rights? So today, with great fanfare, patent offices offer reduced official fees to small entities, giving patent bureaucracy airs as magnanimous champions of independent inventors, while these single-minded creators take morsels from their daily bread to buy innovation lottery tickets, a chance to win some grand folkloric astronomical monetary prize. Build a better mousetrap and the world will beat a path to your door, except in Lilliput, Blefuscu, and most national patent playgrounds, where the official fees are indeed microscopic compared to litigation and monetization costs.

Second, in a medical malpractice suit, Dr. A did not properly inform Mr. B that unfortunate complication C could occur. Even though Dr. A and Mr. B agree to this, and the occurrence of complication C is not in question, expert testimony by Dr. D tells the entire scenario differently. Simply, however well meaning “informed consent” may seem, Dr. D knows how ambivalent that doctrine is, and more importantly, Dr. D knows how little physicians actually know and how much they are trying to use their best judgment to hide this from the patient, who really does not want to know how indeterminate life really is. This is why courts ask experts to explain the obvious. This template, of how little the best minds of any field know, is typical of every field of expertise: law, accountancy, plumbing, farming, driving, piloting, parenting, and every other specialization, including patenting. Proof: Find “the innovative step” taught in some pre-1994 patents.