Tags

, ,

From the moment that Flash of Genius was advertised, I wanted to see it. Like the certain type of musician movie genre, I am also a sucker for this eccentric genius engineer/scientist movie category. How could I not love a story about a slightly off-kilter but otherwise regular-guy who creates something fantastic and then takes on the powers that be to defend his creation. Trouble is, the folks around me weren’t as enthused as I was and, with nobody who wanted to watch it with me, I just never seemed to get around to seeing it.

The film is derived/inspired by a 1993 New Yorker article of almost-the-same-name. The article is actually well worth reading and provides a more nuanced and complex version of the story. Simply put, it is the story of a college professor in Detroit who, in the early sixties, came up with an idea for an intermittant function for automotive windshield wipers. He creates an elegant technical solution which he presents to Ford Motor Company in the hope that they will contract with him to manufacture the device. Although Ford expresses some initial interest, they ultimately pass, but not until after Dr. Kearns (played excellently by Greg Kinnear) has invested time, money, and much of himself into the concept. When his invention begins appearing on, first Ford’s and then its competitors’, automobiles, Kearns decides to to sue. At the film’s end, he prevails.

As I said, the real story (per the New Yorker) is not quite so simple. It was, in part, this line of critique that deterred me from watching the film before now. But, as it was about to be removed from Netflix streaming, I knew its time had come. Having now seen it, I concede that that long ago, negative review had a point – the story is recast as a feel-good, one-dimensional treatment of the facts. It is overall lacking in substance, even while it does get you emotionally invested in Dr. Kearns’ struggles.

One reviewer on Netflix criticizes the film, citing two major areas of dissatisfaction. First, he has trouble understanding what is so special about Kearns’ invention that it was worth a lifetime spent chasing his claim and tens-of-millions in compensation. Secondly, he notes that Kearns is not a sympathetic character. On both these counts, he suggests that the filmmaker failed in his execution. The irony is that both of these flaws are real aspects of this story and, if anything, the film significantly downplayed them.

As to Kearns, this struggle was a substantial obstacle to getting the film made in the first place. As director Marc Abraham attempted to get approval for the script, he was told by then-Universal-head Stacey Snider that Kearns “[is] not a likable guy”. Abraham felt, and I agree, that it is Kearns’ square-peg personality, unable to fit society’s round holes, that makes him so interesting to begin with. As I said, Greg Kinnear plays him well. In contrast to co-star Lauren Graham, who still projects that Gilmore girl vibe, Kinnear is believably 1960s engineer. From reading the New Yorker article, I would guess that Kinnear’s Kearns is much more likable than the real man actually was, but he does convey frustratingly anti-social personality traits that are integral to many a creative mind. Lorelai Gilmore, I mean Phyllis Kearns, plays a role manifesting the “regular person’s” frustration with these people that value the intellectual and the abstract over humanity and emotional engagement.

Secondly, as to the accusation that the film did not adequately portray the uniqueness of Kearns’ invention, well, I think Ford’s people may have been right after all.

Don’t get me wrong. I spent the movie rooting for Kearns to get his fair recognition for what he’d done. I was happy for him when he was at last awarded financial compensation and was delighted that he had beaten the automakers*. I even agree with him that Ford probably deliberately cheated him out of the credit and rewards that, at least from his perspective, he felt they had promised him**. However, upon reflection, I’m pretty sure that Ford’s core assumption, that the patents held by Kearns were not valid, seems reasonable and correct.

I’ll go even further.

I’ve long thought favorably of the law’s protections of intellectual property rights. The argument which swayed me most is that the it is necessary to protect innovation, legally, in order to make it financially attractive for organizations to invest in innovation. Because innovation benefits society as a whole, so do patents. On top of that, part of my personal experience is in patent-heavy industries. Such fields beget a culture where being awarded patents is, in an of itself, a powerful source of professional pride.

Flash of Genius and the article upon which is was based have changed my mind. First of all, as much as I wanted Ford to get its comeuppance, after much reflection, I’m pretty sure the patent process was the wrong mechanism for Kearns “blinking eye.” In fact, I think I would accept Ford’s assertion that the patents themselves were not valid. Despite the elegance of Kearns’ system, in retrospect it seems all too obvious. Given that the auto companies were already working on intermittent wipers, a successful solution, even Kearns’ specific solution, was bound to come along soon.

When America first created Federally-protected patents, the concept of what constituted a patentable invention was more restrictive. It imagined an inventor, alone in his workshop, producing some life changing device amidst a storm of insight. Indeed, the process itself was as important at the product. At one time, within the legal understanding of patents, a “flash of genius” was necessary to demonstrate that you had truly “invented” rather than just built.

Innovations in intellectual property law itself have created a minefield for the modern world. The monopolistic protections afforded by patents, transferred to the control of organizations, created America’s turn-of-the-century dominant corporations (the article names Western Union, International Harvester, General Electric, and A.T. & T.). Concepts such as “improvement patents” allow initial patent holders to extend their protection indefinitely. Clever “inventors” can secure blocks of patents for things they never have built nor intend to build for the sole purpose of extracting payments from subsequent creators. Companies (Patent Trolls) exist for the sole purpose of acquiring the rights to patents and then extracting rent from firms that actual make things.

Back when I was immersed in patent-seeking fields, I remember that we were told that software innovations were unpatentable. Indeed, we brainstormed of ways to attach our software to physical creations to work around this prohibition**. Software patents, these days, are quite common. As the world we live and work in becomes more and more digital, intellectual property rights become more ethereal all while legal protections grow ever more stringent.

For we regular folk, this complexity is more likely to infringe upon our own lives in the guise of copyright protection. If I snag a copy of your manuscript and then print and sell it as a book (without consideration or your consent), I’d be clearly in the wrong. If I take a screenshot of my own computer screen whereupon you creative work is displayed, who owns that screenshot? Copyright law allows a Federal judge to award anywhere between $750 and $30,000 without any evidence of actual damages to the aggrieved or profit by the trespasser. Should a woman be forced to pay the record companies nearly $2 million for having downloaded 24 songs?  Should you be assessed millions for reposting a picture of yourself on Twitter? It happens.

Patent infringement and licensing normally involves only companies who have sufficient resources to deal with the issues, so they don’t hit the popular consciousness. Nevertheless, our law nurtures an industry that exists only to stifle creativity and extract payment from those who do create. Our law creates an environment where well-financed, large corporations can define and defend monopolies indefinitely through clever manipulation of patents, for example, driving up drug costs for the entire nation. Does our law no do more harm than good?

I once scoffed at was was termed the “information gots to be free” attack on intellectual property law. However, it is not necessarily a straight line from classical property rights, à la John Locke, to ownership of mere ideas because you have committed them to paper in the proper format. After watching Flash of Genius, I’d be tempted to hose down this whole stinking bathroom – bathwater, baby, and half-used cans of overpriced hair product be damned. I also long for the simpler world of Thomas Jefferson, where creating an invention meant actually creating, constructing, and contributing to society. Fact is, absent some major societal collapse, there is virtually no chance of change beyond minor tinkering.

In the end, I admire Abraham’s efforts in telling this story. Obviously it is an interesting bit of Americana that touches on issues that are plenty relevant today. However, like Kearns’ own life spent tilting at windmills, it hardly seems to have been worth it in the end. Kearns received upwards from $30 million in settlements but also spent at least $10 million on his legal pursuits. A similarly-sized $20 million investment went into the production of this film and the studio made back barely a quarter of it. I guess Snider knew what she was talking about after all.

*The film obscures, somewhat, the partial nature of his court win. In the movie, the film slips in that Ford’s patent infringement was unintentional only after announcing the award and the playing of dramatic music. Kearns’ paramount goal, that the manufacturers be found guilty of “willful infringement,” was never realized.

**Flash of Genius dramatizes the specifics of how Ford might have lead on Kearns in order to convince him to turn over his concept to them. This includes conversations between (fiction) corporate executives. One must realize that this is but one side of a contested story. Ford went so far (again, it this is in the movie) to accuse Kearns of imagining some of the conversations that he had with Ford and, as evidence, point to his subsequent mental health problems.

***To the extent that it even existed. At the time, patents were already awarded for purely software innovation, although it was nowhere near the extent to which these are issued today.