The Flash of Genius
Bob Kearns and his patented windshield wiper
have been winning millions of dollars in settlements from the auto
industry, and forcing the issue of who owns an idea.
From The New Yorker
January 11, 1993
In November, 1962, Bob Kearns was driving his Ford Galaxie
through the streets of Detroit when it started to rain lightly.
Kearns turned the wipers on low. In those days, even the most advanced
wipers had just two settings, one for steady rain and one for heavy
rain; in a mizzling rain, they screeched back and forth across the
glass, mesmerizing the driver, and occasionally causing accidents.
Kearns' vision was already impaired as a result of an accident nine
years earlier, when, on his wedding night, he was hit in the left
eye by a flying champagne cork. Now, straining to see through the
windshield, half thinking about his lousy wipers and half thinking
about his bad eye, Kearns had what the Wall Street Journal
later called "the kind of inspiration that separates inventors
from ordinary people." He thought, Why can't a wiper work more
like an eyelid? Why can't it blink? The idea for the intermittent
windshield wiper entered his mind.
Sometime this year, a little more than three decades
after his good idea came to him, Kearns will go to trial in a suit
he has brought against General Motors. Kearns, who is sixty-five
years old, has already defeated Ford and Chrysler in court, and
he stands to collect more than twenty million dollars from them
for infringing his patents on the intermittent windshield wiper.
After the G.M. trial, Kearns will start on foreign automakers, beginning
with Ferrari, and working his way through virtually the entire automobile
industry worldwide. His remarkable success has made him one of the
most famous inventors in the country, a hero to thousands of inventors
with their own patent-infringement horror stories to tell. To others,
he is a barnacle that has fastened itself to the underside of our
patent system so tenaciously that the most powerful corporations
in the world cannot pry it off.
Kearns is a small man, a few inches taller than elfin. His voice
is high, nasal, and toneless, and his shoulders are stooped, perhaps
from years of peering down at patent texts. His skin is pinkish,
and his hair is startlingly white. According to Dennis, his oldest
son, it turned white all at once, in 1976, when Kearns took apart
an intermittent-windshield-wiper apparatus made by Mercedes and
discovered that the great German carmaker had apparently infringed
his wiper patents, too.
Kearns represented himself against Chrysler, and will do so again
against G.M. His offices, Kearns Associates, are directly across
the street from the Detroit federal courthouse, where his cases
are tried. He can usually be found at his desk, half hidden behind
heaps of motions and countermotions and books on trial procedure.
The Associates are mainly Kearns' family. He has six children, and
the lawsuit has become the dominant event in their lives--and now
their children are growing up with the case. The family is close,
and the lawsuit has brought them closer. Four of his children have
worked or are working full time for their father. The case is what
they do. None of them have any legal training. They have learned
on the job to write briefs, service documents, and deal with maneuvers
pulled on them by the hundreds of lawyers working for the Big Three.
"For the kids, the lawsuit is all we've ever known," says
Kearns' daughter Kathy, who is thirty-one. "I mean, for us
this is normal."
There is widespread feeling in patent departments
of corporations around the country that Kearns' case represents
a frightening precedent. A California inventor named Gilbert Hyatt,
who was recently granted a basic patent on the microprocessor, is
the latest example of the trend. In theory, Hyatt has billions coming
to him from the dozens of corporations that use microprocessors.
"This kind of stuff makes people who work for corporations
very nervous," Marty Adelman, a law professor and patent expert
at Wayne State University, says. "The story today is not the
big company screwing the little guy but the little guy screwing
the big company. It's getting easier and easier for the little guy
to do it."
The United States patent system
is designed for the independent inventor--for the person whom Nikola
Tesla described as "the lone worker who follows the fleeting
inspiration of a moment and finally does something that has not been
done before." Two hundred years ago, when Thomas Jefferson
created our patent system, all inventors were independent. Now most
inventors work in huge corporate research centers. Individuals surrender
their ideas to the corporation, and for doing so they receive regular
salaries. But the patent system, together with the law that has
accrued around it, still rests on the eighteenth-century idea of
the inventor, and in court a lone inventor with a patent is a formidable
opponent forany corporation to face. "I read all the patent
cases, and rarely has there been a case in the last five years where
the corporation has beaten an independent inventor," Adelman
says. "I tell all the corporate people who call me to testify
against individuals, 'Jesus, guys, you're up against it.' "
The most frightening thing about Kearns, from the automobile companies'
point of view, is that he is not particularly interested in money.
He wants justice. "They think they can pay me thirty million
dollars and put me on a park bench," he says. "Well, Bob
Kearns is not somebody's lackey." When I first met him, a few
months after he received ten million dollars from Ford, he was living
by himself in a small, dark unfurnished apartment in Houston. A
sleeping bag was on the floor, and boxes of legal documents were
everywhere--on the floor, on the kitchen counters, stacked on the
toilet. He has since bought a Colonial house and some property on
the eastern shore of Maryland (it's right next to a house owned
by Mario Boyardee, the canned-spaghetti heir), but he hardly ever
goes there. He sleeps on friends' couches around Detroit, or on
the floor of his office. He says he simply wants to make windshield
wipers. That is all he has ever wanted. He will go on suing until
automobile companies around the world are stopped from manufacturing
his wiper, and he can make it himself.
The United States Patent and Trademark Office is in Crystal
City, a government development in Arlington, Virginia. The buildings
are glass and steel, and sleek, in the modern federal style, and
the place has a sort of splendid isolation about it which goes nicely
with being the city of invention. On the ground floor of the Patent
Office is the Search Room, a vast space filled with patents. The
Patent Office has the largest collection of patents in the world.
Here or upstairs, in the library, are Balinese patents and Manchurian
patents, and English patents dating back to 1623. There are German
dyestuff patents that were confiscated by the United States during
the First World War and became part of the foundation of the American
chemical industry. More than five million United States patents
have been issued since 1790, when the first one went to Samuel Hopkins,
of Pittsford, Vermont, for a new way of making potash, and they
are all stored here, in paper form, stacked face up in an immense
lattice of metal cubbyholes--about a hundred bright ideas to each
cubby, and thousands of inspirations to each long, dark row. Feathery
dust lies on some of the older patents. Patent searchers can be
found in the aisles, scouring their fingertips lightly together
to remove the dust, and plucking flakes of rotting patents from
their jackets and sweaters.
A graph of the fall and rise in the popularity
of patents over the last hundred years would look like this: U.
Having weathered a long siege of anti-monopoly sentiment in the
middle of this century, patents are now almost as popular as they
were in the eighteen-nineties. Last year, the Patent Office received
185,446 patent applications, more than in any previous year, and
109,728 patents were granted, almost twice as many as a decade ago.
The Patent Office cites these numbers as evidence that the spirit
of Edison and Bell is alive, that America is as innovative as ever.
This may be true. It is certainly true that patents are more valuable
than they used to be.
One reason is the influence of a new patent court, the United States
Court of Appeals for the Federal Circuit, which was created in 1982
in part to hear all patent appeals. Before that, patent appeals
went to circuit courts of appeal. Most judges despise patent cases.
A patent case can tie up a judge's calendar for months, sometimes
for years, and often involves technical issues that the judge doesn't
understand. Also, patent law is maddeningly subjective and imprecise,
and apt to plunge all but the stoutest minds into dizzying swirls
of logic. In a patent case a judge is asked to dissect the indivisible
stream that is technical progress, to say where one man's inspiration
ends and another's begins. For these reasons, circuit judges tended
to dismiss patents as invalid simply to get rid of the cases. Between
1950 and 1975, three out of every four patents in the circuit courts
were ruled invalid or not infringed. Certain circuits were notorious
for their hostility toward patents: in the Eighth Circuit, almost
no patents were held valid. The federal circuit court was created
to bring fairness and logic to the system, and most people agree
that it has. It has also dramatically increased the value of patents.
The court has found three out of every four patents valid or infringed.
Of eleven judges who sit on the court, five are former patent attorneys,
so they are inclined to be more sympathetic to patents than most
people are. In the federal circuit, patents are held to be valid
until proved otherwise, and not the other way around.
In the last decade or so, the boundaries of what is patentable have
expanded. In 1972, a molecular engineer named Ananda Chakrabarty
applied for a patent on a microbe he had engineered that would help
break down crude oil. The Patent Office rejected his application,
citing a clause in the patent code which says that life forms are
not patentable. Chakrabarty appealed, and in 1980 the Supreme Court
ruled in his favor, 5-4, creating a brand-new sector of intellectual
property: life. Last February, the National Institutes of Health
applied for thousands of patents on human genes. The prospect that
the United States government may soon own the gene that causes,
say, green eyes has naturally created a certain amount of controversy,
with some people predicting a kind of land grab at the cellular
level--the Japanese patenting brown eyes, Swedes patenting blond
hair, Italians patenting Roman noses.
Independent inventors are pleased by the renewed
popularity of patents, because stronger patents give them greater
leverage with the manufacturers and licensing companies they sell
their inventions to. Patents granted to independent inventors rose
thirty-seven per cent in the last half of the eighties. Automobile
and computer manufacturers--businesses that assemble many pieces
of technology into a product, as opposed to businesses whose product
is a single technology--are not so pleased. They now have to pay
royalties for parts that used to be free; or, if they decide to
infringe a patent, they can no longer be reasonably confident of
getting away with it. The number of patent-infringement cases in
litigation in 1990 was fifty per cent greater than the number in
1980, and the average damage award has tripled.
The boom in intellectual property has been good for the Patent Office;
patents are its principal source of income. Last year, the Patent
Office took in two hundred and forty-five million dollars from patent
and trademark fees, its best year ever. It has raised the number
of its patent examiners to fourteen hundred and forty-six. (In 1980,
there were nine hundred and forty-nine.) They work on six floors
above the Search Room, their desks and floors awash in patent applications.
The Commissioner of Patents has a spacious office on the top floor
of the building.
Harry F. Manbeck, a trim, forceful, no-nonsense sort of fellow,
who was until recently the commissioner, is naturally pleased with
the robust good health that the patent system currently enjoys.
"I think there is an increasing awareness of the importance
of technology in America, and of the need to protect our technology
from incursions by others," he said not long ago. "Having
said that, I think it is remarkable, isn't it, that the system that
was used for granting the first patent"--he waved toward a
framed copy of that document, hanging on a wall behind a secretary--"is
essentially the same as the system used in granting Patent No. 5,000,000, for . . ." He shot a glance, over his
spectacles, toward an aide.
"Ethanol Production by Escherichia Coli
Strains Co-Expressing Zymomonas PDC and ADH Genes," said
the aide, reading from a clipboard.
"Right," Manbeck said. He leaned back,
laced his hands behind his head, and directed his gaze out the window.
Across an expanse of the Potomac floodplain, airplanes were landing
at National Airport.
Bob Kearns grew up in River Rouge, a working-class neighborhood
on the west side of Detroit. Two things about the place captured
Kearns' imagination. One was Our Lady of Lourdes Cathedral, a big
red brick Catholic church, which, he remembers, imported water from
the real Lourdes. The other thing was the Ford Motor Company's Rouge
plant, the largest industrial complex in the world. Kearns' father,
who was a roll turner for the Great Lakes Steel Corporation, had
once taken his son to visit the Rouge, and Kearns recalls that he
had been "just so impressed by the magnitude of what Ford's
was doing." Lumber from Ford forests; ore and coal and coke
from Ford mines; silica sand from Ford quarries, for making windshields;
rubber from Ford plantations in Fordlandia, in Brazil, for making
tires--all flowed into the Rouge aboard Ford trains and Ford ships,
to be refined and machined and assembled into Fords. At the Rouge,
a car could be made from raw materials in four days.
As a teen-ager, Kearns worked in some of the job shops that used
to fill the streets and alleys of Detroit. One place made the molding
around the opera windows on Cadillacs. That was its entire business.
Another place made the dies for the tools that were used to install
one part of the landing gear of C-5 transport planes. The father
of one of Kearns' friends had designed a better car-door handle--the
familiar bar of curved steel with the push button under it--which
helped prevent the door from opening if the car rolled. The man
made a fortune supplying G.M. "The automotives, the automotives,"
Kearns once said to me. "That's all there was. If you were
an inventor, and you really wanted to reach people, you invented
for the automotives. I remember when Charley Wilson"--the president
of G.M. in the forties and fifties--"said, What's good for
G.M. is good for America. I really believed that was true."
Kearns' first invention was a comb that dispensed its own hair tonic.
It did not get beyond the model stage. He experimented with an amplifier
for people who had undergone laryngectomies and with a new kind
of weather balloon. In 1957, he invented a navigational system that
he hoped the military would use in its Sidewinder missiles. His
ex-wife, Phyllis, remembers him dancing her around the kitchen and
saying he was going to buy her two Cadillacs, one for each foot.
"It was so exciting," Phyllis recalls. "It was always
so exciting, living with Robert--such an adrenaline high."
The navigational system didn't pan out, either. Kearns tried again.
When the idea for the intermittent wiper came to him, Kearns and
his wife and their four young children were living in a brick house
on Rutherford Street, on the north side of Detroit. Kearns, who
had a master's in mechanical engineering from Wayne State University,
was commuting to Case Western Reserve, in Cleveland, where he was
working toward his Ph.D. He believes that his great idea grew in
some mysterious way out of the eye injury he had received on his
wedding night, in a country inn in Ontario. "Phyllis was in
the bathroom, you know, changing, and I was sitting on the bed opening
the champagne. And I'd never opened champagne before. And--pow!
The cork goes off, hits me directly in the left eye, I fall back
on the bed bleeding all over the sheets, Phyllis comes out of the
bathroom screaming. I mean, it was a mess."
Kearns worked on the wiper on weekends during the first half of
1963. He constructed a glassed-in office for himself on one side
of the basement, where he could work without interference from the
kids. The other half was Phyllis's laundry room. "I'd be over
here, doing laundry, up to my ears in kids, and he'd be over there
behind the glass with his feet up," Phyllis recalls. "Well,
he said he did his best work with his feet up."
By the summer, Kearns had built a working model of his invention.
He could vary the time the wipers dwelled at the base of the windshield;
he could vary the speed with which they swept it; he had even figured
out a way of making the wipers automatically adjust their interval
to the amount of water on the glass. He put his wiper control in
a red metal box that on the outside had the words "For Engineering
Tests Only. Do Not Open. Proprietary Design Property of Kearns Engineers,"
and two friends installed the box in the Galaxie.
Phyllis: "If it rained, we would stop whatever we were doing,
run out to the car, turn the wipers on, and drive around. Doing
life tests, Robert called it."
Bob: "I had figured out that the elasticity of rainwater was
different from the elasticity of hose water, and I wanted to set
the thing just right."
Phyllis: "Oh, I felt so proud, driving that car in the rain.
I'd get both my hands right up at the top of the steering wheel,
where people passing could see them, so they knew I wasn't just
switching the wipers on and off."
In October, Kearns decided that the time had come to demonstrate
his invention to a car manufacturer. He chose Ford, because it had
supplied him with some wiper motors to experiment on and because
"to me Ford was always the greatest." Through his brother
Marty, who worked in body engineering at Ford, he made contact with
a man named John Ciupak, who he believed "had a substantial
position in windshield wipers," and Ciupak said he should come
over to the engineering complex in Dearborn, Ford's headquarters.
Kearns drove the Galaxie over. He met Ciupak inside, and brought
him out to the parking lot. He demonstrated variable speed, variable
dwell, and moisture responsiveness. He let Ciupak try. They spent
about forty-five minutes at it altogether, and Ciupak seemed impressed.
However, he explained to Kearns that his field was wiper linkages
and blades--that Joe Neill, the executive engineer, was the man
Kearns needed to speak to.
Three days later, Kearns, once again driving
the Galaxie, reappeared for his appointment with Neill. He was surprised
to find about ten Ford engineers waiting for him in the parking
lot. They took turns running the wipers; they poked around under
the hood; they crawled under the dash. One at a time, several engineers
took Kearns aside and asked him how his wiper worked. "I didn't
want to tell them how I'd done it, but I didn't want to be impolite,
either," Kearns recalls. Eventually, Neill appeared. He had
a Mercury brought out of the lab, and, keeping Kearns at a distance,
demonstrated to him that, as chance would have it, Ford was working
on an intermittent wiper, too. Nonetheless, Neill said, Ford would
like to look at Kearns' invention, if Kearns would like to show
it to Ford.
Neill then said he would like to know how much
Kearns' wipers cost to build. He also arranged for Kearns to get
instructions on Ford's specification tests: the wipers had to run
three million cycles, and they had to be able to operate at two
hundred and seventy degrees, the maximum temperature under the hood.
Kearns left in a state of euphoria. Many years later, recalling
that day in a court document, he wrote, "I was in heaven!"
Ted Daykin was one of the Ford engineers who came out into
the parking lot to inspect Kearns' Galaxie in 1963. Daykin spent
thirty-eight years, his entire career, working as an engineer at
Ford, and took early retirement two years ago. He is almost exactly
the same age as Kearns, received a similar education, and also devoted
many years to windshield-wiper experiments, but the two men are
nothing alike. Daykin looks about ten years younger than Kearns,
and he appears to be one of the steadiest of men. He and his wife,
Prill, live in a spacious ranch-style house in Dearborn, within
a mile of the Ford engineering laboratories where Ted did his life's
work. Around the living room are framed photographs of the Daykin
family: their daughter, Elizabeth, who is also an engineer at Ford;
Elizabeth's husband, Gregory, who works in product planning for
General Motors; and the Daykins' son, Robert, who works on the Pontiac
account for a local advertising agency.
Daykin began experimenting with windshield wipers in 1957, when
his supervisor asked him to design an electric wiper motor. Electricity
was the new auto technology then. Electric windows, electric locks,
electric trunk catches were the latest gadgets. But wipers were
one of the quiet backwaters of automotive technology. The standard
wiper was driven by intake from the engine manifold, which was connected
by a series of hoses to the wiper motor. The wipers wiped from the
center of the windshield out, leaving a big unwiped V in the middle.
Ford had asked Daykin and his colleagues to invent a wiper system
in which the blades moved parallel to each other. "See, Chrysler
had come out with parallel blades in 1955, and people liked them,"
Daykin says. "So Ford wanted parallel blades. But the problem
with parallel blades is that your surface area is too large for
the mechanism to drive the wipers effectively." Daykin's electric
motor, linked to parallel blades, appeared as a standard feature
on 1959 Mercurys and as an option on 1959 Lincolns, and it was immediately
popular. At that time, the beauty of the option business was just
beginning to dawn on the auto industry. By keeping the base price
of the car low--even selling the car at a loss--Ford could bring
customers into the dealerships, then sell them a bunch of options
that were extremely profitable for Ford.
Windshield wipers were a potentially rich source
of options. "The success of those parallel blades got management
thinking, Well, what other wiper options can we come up with?"
Daykin says. "So I was told to organize a windshield-wiper
group, and to play around and see what else we could invent. You
know, a lot of people don't really spend a lot of time thinking
about their wipers. They turn them on, they turn them off, and that's
about it. But the fact is that there are dozens of inventions that
go into the way your wipers work. What causes wipers to complete
their wipe cycle when they're turned off mid-wipe? How, when they
have returned to the base of the windshield, do they park themselves
out of the driver's sight? In the industry, we call that feature
'depressed park.' How are wipers synchronized with the wash mechanism--what
makes the wiper go on automatically when you push the washer, and
give you two or three wipes? How about the rear-window wiper? Well,
when you talk about that stuff you're talking about the inventions
of windshield-wiper engineers." In the early sixties, Daykin
and his colleagues busied themselves with inventing features like
those. "Of course, one of the things we worked on was the intermittent
wiper. How do you design a circuit where the wiper comes to a stop
at the base of the windshield and then goes into its cycle again?
The intermittent wiper was-- Well, I won't say it was the Holy Grail
for wiper engineers. But it was the obvious next step for wipers
The basic problem to solve in inventing an intermittent windshield
wiper was the timing device--the thing that sends current to the
wiper motor at regular intervals. What should the timing device
be? One of the engineers working with Daykin had designed a circuit
that relied on a bimetallic timer. The timer worked like a thermostat,
on the principle that two different kinds of metal will expand and
contract at different rates when their temperature changes. The
problem with this invention was that it took some time to heat up.
On very cold days, it might not work at all. Also, getting the wiper
to dwell for short periods was difficult, because of the time it
took for the switch to heat and cool.
In late 1961, Ford's principal supplier of windshield-wiper components,
a Buffalo-based company called Trico Products, brought a new intermittent
device to Ford. It was a small vacuum chamber, about the size and
shape of a bathtub stopper, that contained a plunger and spring,
and had two small air hoses attached to it. The outlet hose ran
to the engine manifold, and the inlet hose ran to the dashboard,
where it was attached to a small dial. The engine, as it cooled
itself, sucked in air through the outlet hose, producing suction
in the vacuum chamber, and so drawing the plunger down and compressing
the spring. The driver used the dial mounted on the dash to control
the flow of air into the vacuum chamber. The spring moved a switch
in the wiper circuit to the "off" position, and the wipers
dwelled. The spring eventually caused the plunger to rise, and moved
the switch to the "on" position. The wipers wiped.
As a piece of engineering, the Trico system was
not especially distinguished. It was something of a Rube Goldberg
contraption. It had twenty-nine moving parts, which meant a lot
of potential for breaking down. When the driver accelerated, the
vacuum was insufficient to run the intermittent mode, and the wipers
would default to high speed. Trico, in trying to sell the wiper
to Ford, advertised this as a specially designed passing feature--useful,
say, in overtaking a truck on a rainy day. "The engineers saw
it for what it was, which was a design flaw," Daykin says.
"But the planners thought that the passing feature was really
neat." Management decided to offer Trico's intermittent wiper
as an option on 1965 Mercurys, and the wiper division went to work
developing it. This was the intermittent wiper that Kearns saw when
he paid his first visit to the engineering building.
Kearns' intermittent wiper was an elegant piece of engineering.
It had four parts, and only one of them moved. It was a leap forward,
beyond electricity and into electronics. Though Kearns did not realize
it, he was on the threshold of the next revolution in automotive
technology. He had worked for the Bendix Corporation in the mid-fifties,
and had some experience with electronic control systems, which were
then used only in high technology, like computers. A transistor,
a capacitor, and a variable resistor were the three basic components
of Kearns' circuit. The resistor and the capacitor together were
the timer, and the transistor worked as the switch. The resistor,
which the driver could adjust with a knob, controlled the rate of
current flowing into the capacitor. When the voltage in the capacitor
reached a certain level, it triggered the transistor; the transistor
turned on, and the wipers wiped once. The running of the wiper motor
drained voltage out of the capacitor; it sank below the threshold
level of the transistor, and the transistor turned off. The wipers
dwelled until the capacitor recharged.
"There's no question that Dr. Kearns' wiper circuit was interesting,"
Daykin says. "He had a three-brush motor, with dynamic brake
and intermittent on one speed only-his system was a concatenation
of a lot of different ideas. But we figured there was just no way
in the world it was patentable. An electronic timing device was
an obvious thing to try next. How can you patent something that
is in the natural evolution of technology?" Daykin shook his
head. He said he had spent much of his last year at Ford helping
to prepare for the Kearns case, and the experience had caused him
to think a lot about the patent system. "I think about all
those Ford engineers I worked with developing wiper systems. Dozens
of inventors--maybe a hundred--contributed to your intermittent
windshield wiper. There were men from Trico, Magnetti Marelli, Rover,
Prestolite, Delco, General Motors, Chrysler, and Ford. I don't know
who some of them were--nobody does. They were the real inventors
of the intermittent windshield wiper, not Kearns."
Prill could be heard in the dining room, setting
the table for a family lunch. "Patents were meant to encourage
innovation, after all, not static ownership," Daykin says.
"Can you imagine where we would be if each one of those engineers
had gone after a patent? We'd all still be driving around with two-speed
Having received the go-ahead from Ford, Kearns began testing
his intermittent wiper. He figured that putting it through three
million cycles would take six months. He bought an aquarium, installed
the wipers in it, filled the tank with a mixture of oil and sawdust
to simulate a load on the wiper, and set it over on Phyllis's side
of the basement. It was Phyllis's job, when her husband was away,
to keep an eye on the tank; occasionally, she would stir its contents
with a cooking spoon. When Kearns came home from Case Western Reserve
on weekends, he devoted himself to wiper experiments. On Friday
night, sometimes all night, Phyllis would watch the oscilloscope,
an EKG-like monitor for measuring electrical impulses, while Bob
tried components in different configurations. On Saturday, he would
be out in the driveway all day, bent over the Galaxie, making adjustments.
He would fill the neighbors in on his progress. A salesman from
Motorola or Delco might stop by, with a quote on resistors. On Saturday
evening, the whole family gathered in the living room and inked
in circuit diagrams, for making printed circuit boards. On Sunday,
after church, Bob drove Phyllis and the kids around Detroit, scouting
out sites for the Kearns wiper factory. "Dad had picked out
jobs for each of us," his son Tim recalls. "My brother
Dennis was going to be the company lawyer, I was going to be the
chief engineer, and my brother Robert would be the head mechanic."
By the late fall of 1963, Phyllis was pregnant again. "How
about a girl?" she remembers Bob saying. "We need a computer
The wipers completed their three-million-four-hundred-thousandth
wipe on November 16, 1964. (Kearns had let the wipers run another
four hundred thousand cycles for good measure.) He called Ford with
the good news, but Ford didn't seem overexcited. His financial situation
was becoming dire. His family was large; his income as a doctoral
fellow was not, and he was spending a considerable portion of it
on wiper components. Also, he needed money to get his patents. Phyllis
was supportive--"I thought the sun was never going to set on
Robert," she says--but Phyllis's mother had begun to wonder
why her son-in-law didn't get a regular job in the auto industry,
like so many of his classmates. "Oh, but giving up the rights
to his patents would have killed Robert," Phyllis says. "He
would have died."
Kearns finally took action: "I waited for a rainy day, then
I drove over to see Dave Tann." Tann was one of six brothers
who had expanded the business started by their father, a small tool-and-die
shop, into the Tann Corporation, a midsize manufacturing company
that supplied carmakers with various parts and tools--fenders, dashboards,
hood ornaments, dies for stamping out hoods. He was the sort of
man Kearns imagined himself becoming. Kearns brought Tann out to
the car and showed him the intermittent wiper. "Dave got in
the car, drove around awhile, and came back all excited," Kearns
recalls. " 'This is great! This is great!' he kept saying.
He wouldn't give me my car back. He said, 'Here, we'll swap. Take
my Cadillac.' So I drove that home, and he took mine." They
agreed that Kearns would assign his rights to the intermittent wiper
to Tann, and Tann would take over the cost of getting the patents.
In addition, Tann would pay Kearns a thousand dollars a month to
continue his wiper R. & D., plus royalties when the wiper went
into production. Kearns went home that afternoon with his first
year's payment, twelve thousand dollars in cash. "Robert came
home, got me and the kids into the kitchen, and covered the whole
kitchen counter with money," Phyllis says. "That was a
Dick Aitken, Tann's patent attorney, filed the first patent application
for Kearns' intermittent wiper in December of 1964. When it comes
to writing patent applications, patent attorneys talk about "staking
out the four corners of the invention," and Aitken did an excellent
job of staking them as far apart as he could. The first patent was
granted in November, 1967. Meanwhile, Tann had made contact with
Ford, and he and Kearns had given a formal presentation to a group
of Ford engineers and executives. "Dave bought a new car to
make the demonstration with," Kearns says. "And that car
was Henry Ford's favorite color--black. It had black everything.
Black tires, black wheels, and black leather seats. Dave said, 'Black
is what Ford likes? Well, we'll give 'em what they like.' That was
how Dave Tann did things." The demonstration was a hit, and
it led to a series of demonstrations to other parts of the Ford
Finally, Roger Shipman, a Ford supervisor, announced to Kearns that
he had "won the wiper competition." He told Kearns that
his wiper would be used on the 1969 Mercury line. Kearns was given
the prototype of a windshield-wiper motor to commemorate the occasion.
The other engineers welcomed him aboard Ford's wiper team. Then,
according to Kearns, Shipman asked him to show his wiper control
to the rest of the team. Wipers were a safety item, Shipman explained,
and the law required disclosure of all the engineering before Ford
could give Kearns a contract. This sounded reasonable to Kearns,
so he explained to the Ford engineers exactly how his intermittent
About five months later, Kearns was dismissed.
He was told that Ford did not want his wiper system after all--that
the other engineers had designed their own. Kearns remembers that
one of the engineers taunted him as he was leaving. Then, about
six months after the dismissal, Shipman called Kearns, told him
his wiper still had a chance for the 1969 model year, and asked
him to come in again. "And, just like a lover, I went back
again," Kearns says. "Because what else could I do? Ford
was my market. Plus I did not really believe at that time that Ford
would infringe my patent. I mean, I believed in Ford. I'm a believer."
Thomas Jefferson was the first superintendent of our patent
system, and our first patent examiner. Among the public men of the
late eighteenth century, he was by far the best qualified for the
job. He was an inventor himself: he invented a moldboard for plows,
a swivel chair, a pedometer, a camp stool, and a copying device,
among other things. He was interested in inventors, and seems to
have understood them.
Another quality that made Jefferson the right person to run the
patent system was that he distrusted patents. Patents, being monopolies,
were dangerous in a republic conceived in part as an anti-monopoly
haven. Starting a patent system was like providing the young economy
with enough rope to hang itself. Jefferson was familiar with the
havoc that patents had caused in the British economy. In England,
in the late sixteenth century, Elizabeth I had discovered that when
Parliament refused to give her money she could raise it herself
by selling monopoly rights to noblemen. In 1623, to put a stop to
that practice, Parliament passed the Statute of Monopolies, which
declared monopolies illegal. However, the statute contained an exception
for patents: to encourage innovation, Parliament allowed genuine
inventors the right to hold limited monopolies on their inventions.
The trouble was that Parliament did not figure out how to determine
who was a genuine inventor and what a genuine invention was. It
was easy for Elizabeth's successor, James I, and for his son, Charles
I, to go on selling monopolies to bogus inventors who could afford
to buy them. This was one reason that, in 1649, Parliament chopped
off Charles's head.
Jefferson thought he could fix the basic flaw in the British system.
His solution was the principle of examination. The principle is
that certain innovations have a quality that elevates them to the
status of inventions, and thus makes them eligible to be held as
private property, while innovations that lack this quality are the
common property of humanity. Learned people can, by study and power
of reason, determine which inventions deserve a patent and which
do not. Examination is the greatest American contribution to the
institution of patents, and it has been copied by virtually every
industrial nation in the world. Like a lot of ideas associated with
the Enlightenment, it sounds a lot better than it works.
Jefferson and his fellow-examiners struggled to come up with a definition
for "invention." Jefferson declared that in order to be
patentable an invention had to be new and useful, but he found that
some new and useful inventions were too frivolous to be worth "the
embarrassment of an exclusive patent," as he put it. He did
make sure the law stated that a patent could go only to "the
true and sole inventor." Of course, when Jefferson used the
word "inventor" he had in mind a farmer or a small manufacturer
who in the course of harvesting a crop or making a doorknob would
discover a shortcut or devise a new tool that would make the job
easier or the product better. The idea of an industrial-research
laboratory, a place staffed by thousands of inventors working for
a single organization, could hardly have occurred to Jefferson.
In 1906, a patent lawyer named Edwin Prindle
published a series of articles in the magazine Engineering
in which he explained to businesses how they could use patents to
restrain trade. "Patents are the best and most effective means
of controlling competition," he wrote. "They occasionally
give absolute command of the market, enabling their owner to name
the price without regard to cost of production. . . . Patents are
the only legal form of absolute monopoly." Patent lawyers recommended
the use of what are called improvement patents, by which the life
of a patent--in the United States, its life is seventeen years--could
be extended almost indefinitely. First, one had to get control of
a basic patent on a new technology, and the best way of doing that
was to organize a trust and buy the patent from the inventor. If
no basic patent existed, the trust could simply buy up all the minor
patents in the field. Then, every year or two, inventors working
for the company could come up with a slightly improved version of
the technology and patent it, and the seventeen-year clock would
start over. The lawyers suggested hiring large numbers of inventors,
to build a fortress of improvement patents around the basic patent
and keep competitors far from the company's technology. These inventors
would, of course, have to sign contracts surrendering the right
to their ideas. While this was not in the spirit of the patent system
designed by Jefferson, it was technically legal: the law could not
prevent the inventor from assigning his idea, once it had become
his private property, to someone else.
The first corporations were essentially large blocks of patents.
Western Union grew from Samuel Morse's patents on the telegraph,
International Harvester from Cyrus McCormick's patents on the reaper,
General Electric from Edison's patents on the light bulb, and A.T.
& T. from Bell's patents on the telephone. Independent inventors
began to find it difficult to compete with inventors hired by the
corporations. A lot of them took jobs in corporate research laboratories--they
were willing to exchange the chance of getting rich for the certainty
of a regular salary. The ones that remained independent turned to
inventing gadgets and toys to survive. Opining on whether or not
this is a good thing is one of the set pieces of technology histories.
Some people see the rise of hired inventors as a natural part of
the evolution of technology; others see it as a wrong turn.
James B. Conant: "As theory developed in physics and chemistry
and penetrated into practice, as the degree of empiricism was reduced
in one area after another, the inventor was bound to disappear."
John Kenneth Galbraith: "Technical development has long since
become the preserve of the scientist and the engineer. Most of the
cheap and simple inventions have, to put it bluntly, been made."
Philo Farnsworth: "We must not lose track of the fact that
inventions as such, important inventions, are made by individuals
and almost invariably by individuals with very limited means."
Nikola Tesla: "Invention is predominantly
individualistic. Everything of prime moment comes from some individual
unconnected with any commercial organization."
In 1969, Ford came out with a new, electronic intermittent
windshield wiper, the first in the industry. It used a transistor,
a resistor, and a capacitor in the same configuration that Kearns
had designed. It cost Ford about ten dollars to make, and it sold
for thirty-seven dollars. At first, Ford offered the intermittent
wiper as a stand-alone option, and it sold slowly. Then Ford packaged
it with another gadget--the remote-control side mirror, which was
one of Ford's most popular options--and wiper sales took off. In
1974, General Motors began putting the intermittent wiper on its
cars, and in 1977 it appeared on Chryslers. Saab, Honda, Volvo,
Rolls-Royce, and Mercedes, among others, soon followed. By 1989,
Ford alone had sold 20.6 million cars with the intermittent wiper,
and made a profit that has been calculated at five hundred and fifty-seven
million dollars. Altogether, about thirty million intermittent wipers
are sold around the world each year.
Kearns tried to get an explanation from Ford, but he soon discovered
that "there's a diode in the line when you talk to Ford--the
information only goes one way." His lawyers wrote letters to
Ford's legal department, informing it that Ford was infringing Kearns'
patents. Eventually, they received a letter back saying that Ford
was not infringing Kearns' patents and that, in any case, Kearns'
patents were invalid. "I just felt very diminished," Kearns
says. "It's like you're a nothing, you're a gnat. You don't
count. You just don't count."
Kearns wanted Tann to sue Ford. "As a practical matter, we
couldn't sue Ford for patent infringement, because they were one
of the family's main sources of business," Tann said later,
of his company. "We needed Ford's good will to keep our business
Several years passed. Kearns got his patent rights back from Tann.
He moved his family to Gaithersburg, Maryland, to take a job with
the Bureau of Standards, testing the skid resistance of various
kinds of road surfaces. Kearns was in his mid-forties now. On July
8, 1976, Dennis Kearns stopped in at a Mercedes service center,
bought a wiper control, and brought it home to his father. Kearns
went down to the basement and took it apart. "And I saw capacitor,
resistor, transistor--it was all there," he recalls. "Even
the great Mercedes had infringed my patents." He wandered distractedly
out of his home, hitchhiked to Washington, and got on a Greyhound
headed South. Somehow, he had become convinced that Richard Nixon
wanted him to go to Australia, to build an electric car. "Then
I realized I'd never spent any time with my kids. I'd been so consumed
with my work on the wiper that I'd never even shown them how to
fly a kite. So I went and bought these two kites. When the police
picked me up a few days later, I was in Tennessee, in a park, holding
these two kites."
In 1978, Kearns filed suit against Ford for patent
infringement. Eventually, he added other car companies to the suit,
but Ford was the principal focus of his hatred. "I just had
an overwhelming feeling that what Ford had done was wrong,"
Kearns says. "It was unjust, and it was illegal." In his
suit he asked for three hundred and fifty million dollars in lost
profits, multiplied by three--the maximum penalty for willful infringement--plus
interest and costs, for a total of $1.6 billion.
Henry Ford loathed patents. One of Ford's lawyers once boasted,
"There is no power on earth, outside of the Supreme Court,
which can make Henry Ford sign a license agreement or pay a royalty."
Ford thought that the patent system should be abolished, because,
he said, it "produces parasites, men who are willing to lay
back on their oars and do nothing," and because patents afford
"opportunities for little minds, directed by others more cunning,
to usurp the gains of genuine inventors--for pettifoggers to gain
a strategic advantage over honest men, and, under a smug protest
of righteousness, work up a hold-up game in the most approved fashion."
Ford's opinion of the patent system was galvanized by the Selden
Patent. In 1879, George B. Selden, a resident of Rochester, had
filed a patent application in which he claimed to have invented
the automobile. In his application Selden described a machine with
a gasoline-driven, combustion-type engine that sat in front of the
driver; a clutch; a foot brake; a drive shaft; and front-wheel drive.
Selden had never built such an automobile. He wasn't an especially
skilled mechanic. He was a patent lawyer, in fact. Selden believed
that in the not too distant future people were going to be riding
around in motorized cars of the type he envisioned, and he wanted
to have a monopoly on them.
For the next sixteen years, Selden kept his application pending
in the Patent Office, using his professional skills to draw the
process out, amending the application now and then, waiting for
the men who were actually building automobiles to produce one that
was marketable. In 1895, he decided that the moment had come, and
he caused himself to receive Patent No. 549,160. An East Coast auto
manufacturer named Albert Pope, who was backed by a syndicate of
investors, made a royalty agreement with Selden and acquired the
rights to his patent. In keeping with business practices of the
day, Pope and his backers formed a trust, and called it the Association
of Licensed Automobile Manufacturers. The A.L.A.M. declared that
any car manufacturer that did not get a license from the trust and
pay a royalty of one and a quarter per cent of the sales price of
each car it sold would be infringing the Selden Patent and would
be sued. By 1905, eighty-five per cent of the auto industry was
under license to the A.L.A.M. Selden was promoted as the inventor
of the automobile.
In 1903, Henry Ford, then an unknown engineer from Detroit, had
formed the Ford Motor Company. He applied for a license from the
A.L.A.M. but was judged to be merely a fly-by-night assembler of
parts, not a bona-fide automobile manufacturer, and was turned down.
Ford decided to make and sell his cars anyway. He announced that
he had no intention of paying his tithe to the Selden Patent, that
the patent was unjust, and that the machine Selden described could
never have worked in the first place. The A.L.A.M. wasted no time
in suing Ford for patent infringement. The drama of Ford, a barely
educated, plainspoken Midwesterner, defying the entire automobile
industry, as well as some of the most powerful interests on Wall
Street, was irresistible to the public, and it made Ford famous.
Ford did not shrink from the attention. He expanded his position
into a general attack on the patent system. "I believe absolutely
in free competition, and in abolishing patents, which kill competition,"
he said. In "Monopoly on Wheels," a 1961 book about the
Selden case, William Greenleaf writes, "By endowing his own
struggle for a place in the sun with a luminous appeal to fundamental
principles, [Ford] translated a wearisome patent suit into one man's
struggle for the right to enjoy unhampered opportunity. This was
a potent theme in a day when the politics of Progressivism was sweeping
the land and the movement for social democracy was still nourished
by the hopes and ambitions of the small businessman." In 1911,
Ford won the Selden case on appeal, breaking the patent, destroying
the A.L.A.M., propelling himself into the dominant position in the
auto industry, and insuring that future generations of Americans
would regard Henry Ford, not George Selden, as the inventor of the
For the rest of his life, Ford virtually ignored
the patent system. "As a rule Ford adamantly refused to adopt
parts and components patented by others," Greenleaf writes.
"Instead, he ordered his engineers to evolve their own designs."
Other carmakers designed their own parts, too. This gave the young
automobile industry the unique advantage of having free access to
technology as soon as it was invented. Ford was a kind of Promethean
figure, taking a revolutionary new technology out of the hands of
the élite and giving it directly to the people. This was
not necessarily the best thing for those who invented the technology--the
designers of carburetors, sparkplugs, radiators, rubber tires, power
steering, overdrive, the convertible top, rack-and-pinion steering,
the rear-window defroster, cruise control, air bags, and intermittent
windshield wipers. However, Ford, in defense of his position on
patents, often pointed out that his own invention--a light, cheap,
durable car that could be mass-produced, like matches or pins, at
a time when the industry was committed to the automobile as a luxury
product--would have been impossible if he had been forced to pay
for the inventions of other men. "I invented nothing new,"
he once declared. "I simply assembled into a car the discoveries
of other men behind whom were centuries of work, and the discoveries
of still other men who preceded them. Had I worked fifty or even
ten or even five years before I would have failed. So it is with
every new thing. Progress happens when all the factors that make
for it are ready, and then it is inevitable. To teach that a comparatively
few men are responsible for the great forward steps of mankind is
the worst sort of nonsense."
When Kearns filed suit against the Ford Motor Company, in
1978, Ford did what corporations usually do in patent cases: it
began stalling, in the hope that Kearns would lose heart or run
out of money. Patent cases are richly endowed with opportunities
for stalling. The heart of Ford's defense was that Kearns' patents
were invalid, because according to the Doctrine of Nonobviousness
his intermittent wiper was not an invention at all.
The Doctrine of Nonobviousness is the current solution to the problem
that confounded Jefferson: how to define invention. Over the last
two centuries, many people have tried to define it. Learned Hand,
whom patent lawyers revere as one of the great patent judges of
all time, wrote that the definition of invention was "as fugitive,
impalpable, wayward, and vague a phantom as exists in the whole
paraphernalia of legal concepts." The 1929 edition of "Walker
on Patents," the standard patent textbook, stated, "What
constitutes invention is a very perplexing question." In 1937,
this was revised to read "An invention is the result of an
inventive act." An inventive act was generally considered to
be a flash of insight that comes when the inventor is not striving
for it, as in the case of Nikola Tesla, who was strolling through
a park in Budapest and reciting some lines from Goethe when the
concept of alternating current suddenly came into his mind and he
diagrammed it in the dust with a stick; or of Edwin Land, who was
taking photographs of his three-year-old daughter one morning in
Sante Fe and, when she asked him why the pictures couldn't be seen
immediately, conceived the Polaroid process. The invention story
was an important part of the invention itself.
Most judges are not scientists. The average judge's view of invention
tends to have more to do with Coleridge's theories about the imagination
than with the judge's experience inside an engineering lab. As the
twentieth century got older, and the gap between the liberal arts
and the applied sciences got larger, the problem got worse. The
last straw came in 1941, when the Supreme Court issued its "flash
of creative genius" decision, in Cuno Engineering Corporation
v. Automatic Devices Corporation. The invention in question was
the first cordless automobile cigarette lighter. The Court decided
that it was not patentable, because it lacked the characteristics
of an invention. Justice William O. Douglas, writing for the majority,
stated that "the new device, however useful it may be, must
reveal the flash of creative genius, not merely the skill of the
Patent professionals began to feel that the legal view of invention
was inconsistent with the way things actually got made, and that
a more scientific, less romantic definition of invention was needed.
A panel of patent experts produced the Doctrine of Nonobviousness,
which became law in the Patent Act of 1952. The doctrine states
that a patentable invention must be nonobvious to a person of ordinary
skill in the art at the time the invention is made. While this definition
is generally believed to be an improvement over the flash of genius,
it isn't perfect: there is a how-many-angels-can-dance-on-the-head-of-a-pin
aspect to nonobviousness which makes it possible to argue cases
almost indefinitely, and often the side with more legal resources
The lawsuit against Ford became Kearns' life. He put every penny
he had into it. He was driven by an uncynical, almost spiritual
belief in justice and an equally pure hatred of the automobile industry.
At a hearing in 1980, Kearns said, "I want you to understand
that I am wearing a little badge here, and that badge says that
I am an inventor, and it says I am a net contributor to society.
And it is like maybe you can't see the badge, and these other gentlemen
can't see the badge, and I don't think anybody is going to be able
to see the badge until my trial is finished in this courtroom and
I will find out whether I am wearing the badge or not." After
his breakdown over the Mercedes wiper, he was unable to work. He
collected disability from his employer, the Bureau of Standards,
and he and his son Tim assembled and sold digital-difference-to-analog
converters out of the basement of their home in Gaithersburg. Tim
says, "I guess you could say the lawsuit has ruined my father's
life, but I don't choose to look at it that way. It is his life.
If there's a tragic aspect to it, it is that my father has never
invented anything else. It would be interesting to know how many
people's lives have been saved by the intermittent wiper, and how
many more lives could have been saved by his next invention. We'll
never know, because he couldn't let this one thing go. But he just
Phyllis Kearns stuck it out as long as she could.
"We'd gear ourselves up for a hearing in ninety days,"
she says. "And then, on the eighty-ninth day, the phone would
ring, and I would hear Bob screaming and yelling, and it would turn
out that Ford had dumped a bunch of new documents on us, and the
hearing would be postponed. Now, I had never heard shouting in the
house before. My parents had never shouted. It got to the point
where I just couldn't take it." Phyllis left her husband in
1980. "Robert expected me to have the same focus he did, and
I just didn't have it."
From time to time, when I felt the concept of what a patent
was slipping away, I would get in touch with Jerry Lemelson. Lemelson
has received over five hundred patents--more than any other independent
inventor alive. He inherited the title two years ago, upon the death
of Edwin Land, who had five hundred and thirty-three. If Lemelson
contines to average twenty patents a year--a pace he has sustained
for three decades--he will catch Edison, who is the Hank Aaron of
patents, with a thousand and ninety-three, by the time he is ninety-seven.
Lemelson is sixty-nine now. He is a compact fellow, with a bald
head and a comical New York squawk. He talks quickly. Behind each
of his inventions is a story about how it came to him, and Lemelson
tells it in the manner of a standup comedian, except that instead
of a punch line at the end there is an invention.
Some people see life in terms of a photograph or a song or a short
story; Lemelson sees it in terms of a patent. He thinks in patents,
and sometimes he dreams in patents. Lemelson holds patents on machine-vision
systems, an industrial robot, a fax machine, a copy machine, a tape-recorder
drive, and a camcorder. It's hard to think of a technology he has
not patented. Once, when I was talking to him on a cordless telephone,
we had one of those electronic drifts which such phones are subject
to. "Darn," Lemelson said. "I invented this thing,
When Lemelson invents, he first selects a particular field--say,
microsurgery, which he is currently looking into. (He has a patent
on an electronically controlled tourniquet.) He may hire a patent
searcher to obtain copies of all the patents in that art or he may
go down to the Patent Office and read the patents himself. He tries
to imagine the path along which the art will develop, and to construct
a patent application that sits squarely in the middle of it, so
that even if the invention is never manufactured--and only one in
every seven of Lemelson's inventions is actually made--his patent
will be like a tollgate on a highway, at which all travellers must
stop. Lemelson's great advantage over other inventors is that he
writes all his patent applications himself. Though in theory a patent
application is merely a rendering of the invention in language,
in reality it is a kind of invention itself. "It takes great
skill to craft a patent application," he says. "You have
to stake the four corners of your invention broadly enough so that
they give you maximum protection. You tend to avoid adjectives.
You don't say 'transistor' when you can use 'controllable electronic
valve'--that sort of thing. Of course, if you write too broadly
you may invalidate your claim, because it will read on the prior
art. But if you write too narrowly you may miss the thing about
the technology that turns out to be truly valuable."
Last year, thanks to deals with Sony, Sanyo, Siemens, and others,
Lemelson reportedly earned two hundred million dollars. He has filed
suit against Motorola, Kodak, and Apple. Several years ago, he moved
his residence from New Jersey to Nevada. "I don't mind saying
that the reason for it is that it's a lot easier to litigate from
out there," he says. "When I litigate in New Jersey or
New York, it takes five to ten years to get to trial. Out in Nevada,
it only takes a year."
Lemelson is a corporation's worst nightmare. To his critics he is
merely an inventor of paper patents, who is exploiting the power
that the patent system gives the independent inventor. As Lemelson
sees it, though, litigation is the only way an independent inventor
can protect his rights. "Occasionally, it is possible to earn
money selling licenses--it's a lot easier these days than it used
to be," he says. "But the simple fact is that most manufacturers
would rather infringe a patent than pay a license. Have you heard
of N.I.H.--the Not Invented Here syndrome? Well, it's a disease
that American industry in general suffers from. The attitude is
'If we didn't invent it, we're not interested.' Or 'If it's such
a good invention, how come we didn't think of it?' Or 'Hey, we have
all these thousands of engineers on our payroll--why should we have
to pay someone else for an idea?' It is virtually impossible for
an independent inventor to invent for an American U.S. corporation.
They're just not interested in inventions that they don't make."
Clifford Sadler is an executive in the patent department
of Ford. Sadler, known to his colleagues as Kip, is a lean, likable
fellow with silver hair and a droll sense of humor. He listens to
questions with his head to one side, his fingers making a lawyerly
tent in his lap. "Electronics was simply the way the world
was going," he told me recently. "I would say it's to
Dr. Kearns' credit that he perceived this. But for Dr. Kearns to
say he invented the electronic intermittent windshield wiper is,
we feel, sadly unrealistic. Even in 1963, the resistor-capacitor
timing device was a standard piece of engineering--it was sophomore-in-college
Sadler stretched his long legs out in front of him, rocked back
in his chair, and sighed. "I think Dr. Kearns honestly believed
he was part of the Ford design team," he said. "But Ford
never saw it that way. As far as the engineers were concerned, Kearns
was a sort of pest. He was always stopping by the lab and saying,
'Hey, what's going on? Need any help?'-that sort of thing."
Sadler said that under no circumstances had Ford copied Kearns'
design. "As for infringement, we had our lawyers examine Kearns'
patents, and in their view the patents were invalid." He added
that Kearns' great ambition--to be a supplier of windshield wipers
to Ford--was misguided. "Ford has more than two thousand suppliers,"
he said. "In no case that I can think of has an independent
inventor who has no manufacturing track record ever become a supplier
to the auto industry. It just doesn't happen."
The Ford case came to trial in January, 1990--twelve years after
it was filed. Most of Kearns' patents had expired by then. The waters
of progress had closed over his head. Judge Avern Cohn divided the
trial into two parts: one to determine whether Kearns' patents were
valid and infringed, and, if they were, one to determine how much
Ford should pay for infringing them.
Marty Adelman, the Wayne State law professor, was an expert witness
in the Ford case. He told me that once Kearns got into the courtroom
the odds of his winning shifted dramatically in his favor. "The
inventor has a piece of paper with a big blue ribbon on it that
issues from the Patent Office, and that he can wave around in front
of the jury, and the jury tends to say, 'Oh, he has a patent, he
must be right,' " Adelman said. "The corporation is placed
in the very formidable position of trying to convince the jury that
the Patent Office is wrong.
"The inventor has a story to tell. The cardinal rule for any
patent attorney representing an independent inventor is to tell
the invention story. You know--how he got the idea. It comes to
him in a dream, or when he's in the shower or mowing the lawn. In
Kearns' case, the guy gets hit in the eye with a champagne cork
on his wedding night, he starts thinking about how the eye works,
and ends up inventing a wiper that works like an eyelid. A classic
invention story. That's not how things get invented in the lab.
It's the heroic theory of invention versus the social theory of
invention, and in front of a jury the former is going to win every
time. The judge can lecture the jury till he's blue in the face
about the Doctrine of Nonobviousness, but the flash of genius is
what people want to hear."
Adelman thought for a moment and added, "Of course, in the
Kearns case the really scary thing is that Kearns is probably crazy.
I mean, any rational holdup artist would have taken the money."
The first trial lasted three weeks, and the jury deliberated for
another week. It found that Kearns' patents were valid and that
Ford had infringed them. Ford, concerned about the size of the award
that a jury in Wayne County might give Kearns, offered to settle
the case for thirty million dollars. Kearns, against everyone's
advice, turned the money down. "To accept money from Ford would
have been like admitting it was O.K. for them to do what they did,"
So there was a second trial, and the second trial awarded Kearns
$5.2 million, or about thirty cents a wiper plus interest. Kearns
wasn't there for the verdict, having left the proceedings in protest
two weeks earlier. Without even telling his family, Kearns had returned
to Gaithersburg ("inventor in wiper lawsuit disappears"
was the headline in the Detroit Free Press) got his camping equipment,
pitched a tent in Little Bennett Regional Park, in West Virginia,
and was living off pork and beans. Meanwhile, Judge Cohn, his patience
wearing thin, suggested that if Kearns did not reappear and accept
the money he might begin proceedings to determine whether or not
Kearns was mentally competent. Finally, Kearns and Ford settled
for $10.2 million.
On June 10, 1992, the night before the Chrysler verdict was
announced, Kearns went out on the town with his family: Dennis;
Tim; Tim's girlfriend, Francine; Maureen; Maureen's fiancé,
Paul; and Kathy. Wherever they went in downtown Detroit, bartenders
and waiters came up and wished them good luck. Kearns' spirits were
high. He was confident that he had persuaded the jury to award him
a sum of money large enough to hurt Chrysler seriously--he believed
that the sum would be around forty million--and to send a message
to corporations everywhere that patent infringement does not pay.
"I believe I laid it on 'em pretty straight," he said.
The Kearnses ate dinner at the Pontchartrain Hotel. The possibility
that the family might become extraordinarily wealthy the following
morning wasn't discussed. The money was like a guest at the table
to whom no one had been introduced. People talked about it obliquely.
Everyone chose a number and put twenty dollars in a pool. After
dinner was over and Kearns had left, Kathy said, "The main
thing is that Dad seems happy." She said no one was under the
illusion that the next day would be the end of anything. "I
remember during the Ford case my father's girlfriend Jean used to
say, 'Well, soon it will all be over, and he'll be mine.' Finally,
I had to say, 'Jean, are you crazy? Don't you get it? This is never
going to end.' "
The next morning, the courtroom began filling up at eight-thirty.
Lou Mihaly, Kearns' college roommate, came, with his wife, Pinkie.
The attendant from the Fort Washington Garage, where Kearns parked
his car, came. Phyllis was there. She had driven up from Maryland
the night before, with her son Robert. That night, Kathy had said
to me, "It's obvious that Mom still cares for Dad. I mean,
you can see it in the way she is just thrilled when he comes up
behind her and puts his hands on her shoulders. But she just can't
live with the lawsuit. It's too crazy." Now Phyllis said she
was trying not to be nervous, by focussing on the fact that the
jury had already made its decision, and nothing she felt or did
could change it. She clenched her hands into fists and said, "Oh,
I want willful infringement so badly."
Shortly after nine, the jury came in. Judge Cohn asked his clerk,
Judy Cassady, if she would read the verdict. Ms. Cassady read, "Did
you find that Dr. Kearns proved by clear and convincing evidence
that Chrysler acted willfully when it infringed any of Dr. Kearns'
patents? Answer: no." Phyllis gasped softly. Ms. Cassady went
on, "What amount do you find is a reasonable royalty on a per-unit
basis for the total of twelve million five hundred and sixty-four
thousand one hundred and seven units? Answer: ninety cents per unit."
In the silence that followed, one could almost hear people multiplying
12.5 million by .9. It comes to about eleven and a half million
dollars. With the years of interest, the total will probably be
around twenty million.
Judge Cohn thanked the jurors for their efforts and dismissed them.
Then he said goodbye to the lawyers. "I'm sure I will see you
here again," he said in the direction of Kearns.
The Kearns family moved out into the corridor. The garage attendant
reached for Kearns' hand, and Kearns accepted his congratulations
somewhat awkwardly. Reporters encircled him. Kearns looked grim.
"I would have to say I'm disappointed," he said. The family,
standing around, seemed unsure of what to do. It wasn't clear whether
anyone felt like whooping it up over eleven and a half million dollars;
it was perfectly clear that it would be considered bad form if anyone
did. They talked about who had won the pool. Eventually, Kearns
said he had to get over to the office, and he moved toward the elevators,
with a crowd of family and reporters trailing him. Down in the lobby,
a woman pointed at the entourage and said, "Who's that?"
One of the guards said, "That's the man who invented the intermittent
The family walked down West Lafayette Street. In the elevator, on
the way up to Kearns' office, on the fourteenth floor, no one spoke.
Kearns stared at the ceiling. "I just don't understand it,"
he said finally, to no one in particular. "I just don't understand
why they didn't hold for willfulness."
The family spilled out onto the fourteenth floor.
The former tenants had recently left, taking even the wall-to-wall
carpeting with them, so we walked over slabs of epoxy-encrusted
concrete. The view from the windows was of downtown Detroit--empty
hotels and department stores, abandoned machine shops. In an unused
room sat a disembodied windshield-and-dashboard assembly from a
1965 Dodge Dart, with a windshield-wiper system rigged up to it,
which Kearns had used in the trial.
The family went into the Kearns' offices. It
was only ten-thirty--too early to go out to lunch. Phyllis suggested
that she make some coffee. Her ex-husband seemed to be slipping
away into one of his hopeless moods. "The moral is that unlawful
conduct does pay," he said. "I don't see how any of us
could go home to our children and say it does not." He sat
at his desk. He looked like a man outdoors in very cold weather
who was concentrating hard on staying warm.
Copyright (c) John Seabrook 2003. All rights
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