Mar 18, 2013

Invention Versus Discovery and Plato's Space

     In plain language, discovery means a found thing that has existed before, like for example a new kind of bird, and invention means a found – or rather conceived – thing that has not existed before and that has got some practical use, like for example a new kind of engine. An art creation, like “Close Your Eyes” by Beatles or Stonehenge, would fall under a conceived thing which – in the plain language – does   not   have   a   practical   use   but   is   emotionally   relevant. The patent law of many countries
acknowledges a new and useful thing as a patentable invention, thus overlapping with the plain language definition of the invention. A plain language invention can be principally protected by a patent or by a business secret. An art creation can be principally protected by a copyright. Plain language discovery can be sometimes protected by a business secret or patent, like a new curative herb or its use, but usually cannot be easily protected. Temple of the Sun in Machu Picchu or Stonehenge could fall under a discovery when found by modern people. If having served some purpose, such as astronomical measurements, Stonehenge or the Temple might once also fall under invention, like an astrolabe. Of course, a bronze astrolabe could have been protected by a design if having special aesthetic features, or by a patent in the time of its invention.
     Regardless the intellectual property terms (marked above), it seems that the conditions of “new” and “useful” are relevant for defining discoveries, inventions, and creations also in normal language, excluding known or useless things. Useful may mean useful in industry or agriculture. Discovery could be defined as a useful thing that, although having existed, has not been known but has now been found (like a new island); invention could be defined as a useful thing that has not been known and has now been conceived (like a new kind of therapeutic molecule). An art creation could be described as a thing that has not been known and that has now been made, and that, although not being practically useful, is impressive (like a new statue). Whether a thing is a discovery, invention, or a creation is relative, depending strongly on a subject who has or has not known the thing, and for whom the thing is or is not useful or impressive.
     What about the positron in 1928 when Pauli conceived its existence – was his prediction an invention or a discovery? The positron was observed in 1929 – was the observation of the positron a discovery, when it had already been described? If the positron had not been theoretically predicted in 1928 and practically observed in the cosmic rays in 1929, but it would have been artificially prepared by scientists (for example from protons), would it have been an invention? Some would say that observing positron or relating to it was always a discovery, and that the definition of discovery might comprise finding anything previously unknown that existed or exists or will exist.
     America was discovered several times by Indian predecessors in several waves between 30,000 years ago and 15,000 years ago, and independently by the Vikings in about 1000 and by Columbus in 1492. It is not surprising that an existing thing is discovered independently by more discoverers, but strangely also many inventions, supposed to be very unique findings, were invented independently by more inventors. Writing of language was invented independently at least twice – in Mesopotamia and in Mesoamerica. The number zero was invented independently in India and by the Maya within several hundred years after the beginning of the CE. Logarithms were invented independently by Scottish John Napier and by Swiss Joost Burgi within six years in the beginning of the 17th century. The calculus was independently invented by Newton and by Leibniz at the end of the 17th century. The modern hypodermic syringe was independently invented by French Charles Pravaz and by Scottish Alexander Wood around 1850, and the telephone was invented independently by Elisha Gray and by Alexander Graham on the same day of August 31, 1870. Not all plain language inventions are patentable; for example, natural laws, mathematical relations, and algorithms are not patentable, so that the calculus or zero would not be easily patentable – unless they would be cleverly combined with a physical entity. The syringe would be easily patentable today, and logarithms could be patented when associated with slide rules. A pure idea like a software may be sometimes patentable if handily incorporated into a physical system. European patent law excludes from patentability scientific theories, mathematical methods, aesthetic creations, programs for computers, and explicitly “discoveries”. Methods of computing may be sometimes patentable in the U.S.
     America was supposedly discovered and not invented by Christopher Columbus, whereas Wankel engine was supposedly invented and not discovered by Felix Wankel. Natural laws like the Newton’s motion laws were supposedly discovered and not invented, because we feel that they had always existed and would exist even without Newton. What about Cartesian plane, Euclidean space, Abelian group, and many other mathematical objects which were found by Descartes, Euclides, Abel and others? It is often stated that these objects were invented, which would mean that they had not existed before having been found and that they could have been assigned arbitrary properties by mathematicians, analogously to inventions like combustion engine which can have reciprocating (classic) or rotating (Wankel) piston. As frequently asked: if math is invented, then why can’t a mathematician invent that 2 + 2 = 5? A mathematical entity like the complex number is conceived and has not existed, the same as a new engine, but the engine can have alternative rotors, whereas the complex number cannot have alternative properties. Strangely, the mathematical constructs turn out to allow only narrowly defined properties as if having been created before being found by humans. As Pythagoras and Plato observed thousands years ago, mathematical objects seem to exist independently on human’s perception, somewhere in Plato’s world of pure ideas, and they seem to be discovered as unknown islands in the middle of the ocean.
     As ever existing in the Plato’s space, the mathematical objects are justifiably not patentable. A herb or a tree bark have existed even in this world and should be still less patentable, but their use for treating a medical condition can be sometimes patentable; DNA has also existed, but it can be acknowledged as a patentable item after being separated from the cell and purified. More generally, XNA is patentable while DNA is not (XNA is nucleic acid with artificial nucleotides).
     After reading the above notes, one should be able to answer the question whether the idea of protecting new ideas was patentable, when it was new. However, the question which invention is or is not patentable, cannot be generally answered, and for each invention it is resolved during the dialog – called patent prosecution – between examiners and patent attorneys, and sometimes later on during court litigations. Another thing should become clear: not only abstract notions like Pythagorean theorem eternally float in the Platon’s space of ideas, but also concrete things like the hypodermic syringe or the telephone have always existed, which is corroborated by the fact they are independently discovered/invented by more people. But it would not be good for business to conclude that there are only discoveries and no real inventions, and fortunately (I am a patent attorney) more than 220,000 patents are granted worldwide every year.