This is a commonplace statement for scholars of the criminal justice system (Abrams and Yoon, Reference Abrams and Yoon2007, 1146, 1150) and an acceptable statement within the history of business, considering the intertwined history of the modern corporation and the corporate law firm, as lawyers managed restive workforces, built trusts, and defended them from the federal government (Ernst, Reference Ernst1995; Lipartito, Reference Lipartito1990).Footnote ¹ However, it is a novel, and near-heretical, statement within the history of technology, with a tradition of identifying and glorifying inventors. Since the nineteenth century (Howe, Reference Howe1840; Smiles, Reference SmilesFootnote 1862–68), hagiographic biographies have been used to tell the story of industrialization and technological innovation in the United Kingdom and the United States as one of exceptional individuals, the great men of invention. Despite scholarship identifying and debunking this trope, it continues, as witnessed in the popular biography of a current hero of invention, Steve JobsFootnote ² (Isaacson, Reference Isaacson2011). Lawyers, if they even appear in narratives of technological change, are bit players, not heroes.

Stathis Arapostathis and Graeme Gooday, who authored Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain, and Christopher Beauchamp, who wrote Invented by Law: Alexander Graham Bell and the Patent That Changed America, upend this traditional understanding. These historians examine some of the iconic inventions of the late nineteenth century, such as the telephone and the light bulb, by focusing on patents and patent litigation. They argue that it did all come down to the lawyers. While these are not the first histories to explore the reputational and commercial fights among rival claimants to these technologies,Footnote ³ these books do so by paying careful attention to legal rules, lawyers, and, particularly, litigation as a means of resolving such disputes. These two significant additions to the historiography of patents and invention both argue that behind the great (white) men of invention were the men of law; without them, innovators remained relatively unknown.Footnote ⁴ Both inventions and inventors, in the memorable phrase of Beauchamp's title, were “invented by law.” These books bring the law into the analytic approach known as social construction of technology (SCOT) to place law and lawyering at the center of the development of disruptive technologies.Footnote ⁵

This scholarly turn is noteworthy because it expands the domain of law and society scholarship to patent law, an area of law neglected by, if not downright resistant to, constructivist analysis, and for understandable reasons. Inventors focus on the application of physical laws. Materiality counts. Alexander Graham Bell's English patent case turned, in part, on the accidental bending of a piece of metal on the model of his telephone he had given to William Thomson (Lord Kelvin), rendering it inoperable (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 87–88, 101–02; Beauchamp, Reference Beauchamp2015, 111, 146). Thomas Edison won one of his many patent cases by testifying about his search for increasingly exotic plants as a source for a long-lasting fiber to use in light bulbs.Footnote ⁶ Yet these histories demonstrate that innovators and the machines they build are also crucially dependent on the malleability and indeterminacy of human-made law. Although the authors do not explicitly rely on the sociology of law, their tales of patents and litigation illuminate familiar transhistorical concerns of law and society scholarship in ways previously unappreciated by historians and legal scholars alike. They teach us that the social construction of technology includes law, lawyers, and legal systems, and that the coproduction of law and society does not stop in the realm of technology.

The significance of this approach to contemporary concerns of law and society is demonstrated by A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War. Its author, Ronald Fierstein, is an attorney who has written the story of a late-twentieth-century epic patent battle from his perspective as a junior member of Polaroid Corporation's legal team. In Fierstein's telling, Edwin Land is the charismatic inventor of the breakthrough technology—instant photography—that becomes the key to the success of Polaroid Corporation. Although Land is much less well known today, Fierstein compares Polaroid and Land to Apple Computer and Steve Jobs as a source of must-have consumer products run by an admired innovator and showmanFootnote ⁷ (Fierstein, Reference Fierstein2015, 526–28). His book reminds us that great men of invention narratives, and the need to resolve inventorship disputes in the courts, are not mere historical artifacts, but remain part of our twenty-first-century world.

Collectively, these books invite us to consider the role of narrative in both history and law. Historians and lawyers are both trained to construct narratives in pursuit of the truth.Footnote ⁸ Yet both professions have been seeking to debunk “heroic inventor myths” as a guiding narrative for the understanding of technological innovation (Hunter, [1943] Reference Hunter and Layton1973; Hughes, Reference Hughes1989, 19). Invented by Law and Patently Contestable are contributions to a broad trend in history seeking to displace so-called great men histories generally, and in the history of technology, in particular. Recent patent law scholarship, too, has sought to disprove the “myth of the lone inventor” and suggest that patent law needs to better reflect the complex reality of contemporary invention, which often occurs in teams of workers guided by managers with an eye on the corporate bottom line (Burk, Reference Burk2006; Silbey, Reference Silbey2010, 215; Lemley, Reference Lemley2012).

An easy take-away from these legally focused accounts of famous Anglo-American inventors—although not one urged by Arapostathis, Gooday, or Beauchamp—might be to replace the “great men of invention” with the “great men of law.” A Triumph of Genius, a massive book that provides a detailed recounting of the fifteen-year, all-out “patent war” over a collection of Polaroid instant photography patents, reminds us that it is not quite that simple. There are structural reasons that “great men” stories exist and persist. Stories not only originate in courtrooms, but move in and out of legal spaces. They are essential to an adversarial process that purports to do justice by encouraging parties to offer versions of the past, and then picking from among those legal histories.Footnote ⁹ Lawyers create narratives of their cases in part by borrowing explanations deeply rooted in culture, and the great man of invention narrative is a tried and true, culturally powerful explanation for the origins of technology (Silbey, Reference Silbey2008, 330, 341–42). Bringing the law and lawyers into the social construction of technology should not be read as an invitation to privilege legal stories, but as a contribution to scholarship in both law and history that decenters heroic narratives, giving needed attention to institutions, assistants, consumers, and financiers, as well as to lawyers and their clients, and that also examines the persistence and re-creation of such narratives in law and society.Footnote ¹⁰

Making Inventions by Law

Patentably Contestable and Invented by Law contribute to the small, but recently expanding, world of patent historiography. Largely ignored by legal historians, the history of patents has been the domain of economic historians, who seek to measure change in innovation over time, and historians of technology, who have used patents in multiple ways to pursue their project of explaining the process of technological change.Footnote ¹¹ To the extent that the history of patent law has been written, it has been largely as intellectual history, tracing doctrinal developments and, in particular, the shift from privilege to property right and the emergence of the idea of individual invention (Bugbee, Reference Bugbee1967; Sherman and Bentley, 1999; Mossoff, Reference Mossoff2001; Pottage and Sherman, Reference Pottage and Sherman2010; Bottomley, Reference Bottomley2014; Bracha, Reference Bracha2016).Footnote ¹² Arapostathis, Gooday, and Beauchamp are each trained historians who have placed law front and center in their investigations of the history of invention and technological development, and in so doing, developed nuanced, contextualized social histories of patents and patent law in the late-nineteenth-century United Kingdom and United States.

Arapostathis and Gooday consider the “patent contests” of their title broadly, using a series of case studies drawn from the history of electrical technologies in Great Britain. They examine contests involving telephony, dynamos (generators), wireless telegraphy, and electric lamps (light bulbs) between 1870 and 1920. Alexander Graham Bell, an immigrant to the United States who did his initial work on the telephone in Massachusetts and pursued both US and UK patents and business opportunities, is one of their examples. Arapostathis and Gooday argue that Bell won the status of great inventor in the United Kingdom through his lawyers (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 2, 87–106). Through other case studies, they contrast the status of Bell and the telephone with other significant contemporaneous innovations and explore the breadth and diversity of legal support for inventorship narratives.

For example, early dynamo innovation in Great Britain proceeded without patents. Even though later improvements were patented, Arapostathis and Gooday argue that the lack of any candidate for a “foundational patent” contributed to the lack of a dominant origination narrative of the dynamo, or any designated great inventor (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 2). Without a patent, early dynamo innovator Henry Wilde brought a libel suit against his rival Silvanus Thompson as a way of claiming inventor status (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 114–19). Contests could also be resolved without litigation. The authors demonstrate that in the quest for inventive laurels in wireless telegraphy by two patentees, the Englishman Oliver Lodge and the Irish-Italian Guglielmo Marconi, even the shadow of the courthouse was enough to consolidate an inventive narrative. Marconi changed the entire field of wireless telegraphy by seeking the first UK patent, but then maneuvered for commercial success and inventive status by avoiding patent litigation as much as possible, instead gaining the title of sole inventor through ownership, eventually purchasing Lodge's patents (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 172–73). Arapostathis and Gooday use these examples alongside other patent litigation to consider the “moral economy” or the “credit culture” of patenting, that is, the reputation issues at stake in each contest, whether the inventors were litigants in a patent suit, arguing about statements to the press, as in the libel suit, or serving as expert witnesses in a third-party patent dispute as a means of promoting their preferred narrative of the technology (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 205–12).

In Invented by Law, Beauchamp focuses solely on Bell, and largely on his US activities, although he also examines Bell's transatlantic business and legal concerns in Great Britain. As perhaps the most well-known of all the inventors discussed by Arapostathis and Gooday, Bell is a prime example of the great man of invention, long celebrated as a technological hero (Beauchamp, Reference Beauchamp2015, 2–3). Beauchamp agrees with Arapostathis and Gooday, arguing provocatively that Bell, as the famous inventor of the telephone, and the telephone itself, that marvel of the new era of communication, were the product of lawyers.Footnote ¹³ Lawyers drafted “the patent that changed America,” in the words of his subtitle, and litigated the patent in the courts. Beauchamp argues that the “patent that changed America” was only elevated to that high status after significant work in law to frame, interpret, and define one of Bell's many patents, which became, well after its drafting and filing, the “foundational” patent (Beauchamp, Reference Beauchamp2015, 4–5).

Beauchamp's story can be likened to a lengthy game of “Telephone” in which Bell's ideas were passed along a chain of fellow experimenters, patent drafters, businessmen, rival claimants, lawyers, and judges until judges declared through formal opinions what the starting idea had been, a process that, just like the popular party game, involved unexpected revisions along the way. Beauchamp argues that only because of Bell's successful legal claims of patent infringement against competitors do we now believe Bell to have been the inventor of the telephone, rather than one of the many rival claimants to that title, whose invention narratives were not accepted by the courts. Further, by paying equally careful attention to the business history of the telephone, which went hand in hand with control of Bell's patent rights, Beauchamp reminds us that the particular business model chosen by those who controlled the Bell patent, later known as the Bell system, shaped telecommunications in both the United States and the United Kingdom for decades. He argues that the Bell system was also the result of the patent and lawyers drafting and wielding it (Beauchamp, Reference Beauchamp2015, 163). Legal strategy called forth the question “who invented the telephone” and Bell's lawyers successfully and consequentially answered it (Beauchamp, Reference Beauchamp2010, title).

In the case studies of Patently Contestable, and in Bell's multiple patent disputes analyzed in Invented by Law, the authors detail how through the process of litigation, lawyers culled one timeline of actions from a messy set of multiple innovators, false starts, and commercial puffery. This culling was then presented to a court, and the judge in his ruling wrote a definitive history of technical origins, picking among the narratives presented. In the end, Arapostathis and Gooday argue, it is the judge who plays a “crucial” role, as the requirement in Anglo-American law that there must be a “true and first” inventor was the “curious presumption” that led judges to draft “the early heroic narratives,” that is, the first great man histories of invention, as part of judicial opinions (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, xii, 17, 217).Footnote ¹⁴ These authors argue that these stories then moved from the courtroom into popular culture, resolving, or at least quieting, priority disputes waged in the court of public opinion. In this explanation, great men narratives are written by lawyers and judges first, and the truth of inventions and inventions is a product of law, reinforced by historians and popular tales of innovation.

In placing these legal battles in social context, these books join the project of historians of technology who have embraced social history, with its turn away from political and intellectual history and its emphasis on “bottom-up” rather than “top-down” investigations (Tilly, Reference Tilly and Zunz1984, 11–13, 19–20). Focusing on the relationship between technology and society, historians have previously argued that great man histories of invention are insufficient to explain technological change. In ways that would seem analytically familiar to law and society scholars, they have focused on networks, systems, linkages, and social construction, reallocating agency from the “great men” who have traditionally been assigned causal roles. In one influential example, Thomas Hughes reconsidered electrification, traditionally attributed to another of the pantheon of great US inventors, Thomas Edison. He found that the adoption of electric lighting was fundamentally as dependent on networks of finance, wires, and corporate structure as on Edison's laboratory tinkerings (Hughes, Reference Hughes1983). Arapostathis and Gooday, in their chapter on the British electric lamp industry, show how patents were also part of the network created by Edison, helping him to best the many other inventors of electric lamps and supporting the “resilient transatlantic myth” that Thomas Edison invented the incandescent light bulb (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 175).

These books are not the first to point to law in all its many manifestations as a crucial aspect of the history of patents and invention. Carolyn Cooper was perhaps the first historian of technology to analyze US patent lawsuits, seeking to understand the career of early-nineteenth-century American wood lathe innovator Thomas Blanchard. She considered Blanchard's choices to assert his patent in litigation and to license it as key aspects of what she called Blanchard's “patent management,” analyzing the uses of a patent over its lifespan to allow an inventor to claim ownership, money, and status (Cooper, Reference Cooper1991, title). Historian of business and technology Steven Usselman indicated the need to think further about patent law over twenty years ago, identifying courtrooms as the places where statutes were adapted for the real life of business and invention (Usselman, Reference Usselman1991, 1048). Steven Lubar focused on legislative action to change the patent laws, as well as court decisions, to understand “the complex economic, legal, and political game of the patent system” as played by inventors, users, and investors in patented technologies (Lubar, Reference Lubar1991, 932).Footnote ¹⁵ Despite this work, however, the history of patents has remained a neglected backwater, even among historians of technology.Footnote ¹⁶ In the words of Beauchamp, “patent law is overdue … for a move into the historical limelight” (Beauchamp, Reference Beauchamp2015, 7).Footnote ¹⁷

Both Patently Contestable and Invented by Law help make this move in explorations of key inventions of the late-nineteenth-century United States and United Kingdom. But these authors are doing more than filling gaps in patent historiography; they are introducing historians less familiar with law to what law and society scholars know well. These scholars show that the law is not a static entity with a simple cause and effect relationship between laws, legal documents, and legal decisions, on the one hand, and the behavior of innovators and users, on the other. They emphasize that patents, as legal documents, do not have one clear and true interpretation, as much as their owners may wish that they did. Both in the courthouse, and in “the tribunals of the press,” patents are “read in different ways by participants” (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 173, 205). When these historians examine the industry-specific application of patents in detail, they find that “the supposedly robust and concrete rationality of patent law” is, like other areas of law, “rather malleable in the hands of skilled and strategic legal personnel” (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 216). Law then becomes another aspect of the social construction of technology, or perhaps a “technology” itself; “just as much as any other feature of technological systems, legal frameworks and practices both enable and constrain key aspects of technological trajectories” in ways that echo “far beyond the courtroom” (Arapostathis and Gooday, Reference Arapostathis and Gooday2013, 216). Demonstrating this indeterminacy, and the role of judges to choose one set of meanings, Arapostathis, Gooday, and Beauchamp conclude that it is law, considered as a capacious and multifaceted system of “frameworks and practices,” that ultimately determines the meaning of patents and thus of technology and the reputation of certain men involved in its creation. Inventors and inventions, according to these historians, are “made by law.”

Constructing Great Men of Invention in Law and History

To law and society scholars, this constructivist argument, with its attention to law and legal truth making as contingent processes, may seem a straightforward extension of foundational analytic approaches to a new area.Footnote ¹⁸ The acknowledged malleability of the law and the constant interplay between law and society is part of what makes it uncontroversial among those who study legal systems to argue that it all comes down to who has the best lawyer: skill in using that malleability on behalf of a client matters to outcomes. Arapostathis, Gooday, and Beauchamp have deployed this well-established insight into law to disrupt great men of invention narratives by showing how reputation as an inventor, as well as the meaning of legal documents, can be dependent on legal skill and strategy. In doing so, these scholars are engaged in a historical form of law and society scholarship that makes patent historiography relevant to non-historically-minded law and society scholars by concentrating our attention on the distinct, but interdependent, roles of narrative in law, culture, and history.

Scholars of law and society, as much as these historians of technology, seek to understand the construction, deployment, and persistence of narratives through law (Ewick and Silbey, Reference Ewick and Silbey1995, 206–11). Invented by Law and Patently Contestable explain the persistence of a powerful cultural narrative, the great man of invention, by pointing to legal doctrine and the litigation process. As mentioned above, this narrative has implications for contemporary patent law. In making their critique of the lone inventor mythology, legal scholars have drawn on historical work, arguing that this “myth” became more prominent just as invention was becoming an organized group activity through corporate research departments (Merges, Reference Merges2000, 2215–16; Janis, Reference Janis2002, 910–11; Cotropia, Reference Cotropia2009, 57–61).Footnote ¹⁹ Although Bell had only a few collaborators, his even more famous contemporary, Edison, often introduced with reference to his nearly 2,000 patents, ran a large research organization (Israel, Reference Israel1998). In this context, the “heroic” or “lone” inventor as he appears in law and policy is sometimes explained as a gesture to a nostalgic past that continues to generate public goodwill toward a patent system that largely benefits corporations (Janis, Reference Janis2002, 911–12, 920). From a policy standpoint, this myth is understood as false and harmful, and to the extent it is the product of law, it is thus a defect needing to be corrected so that there is no longer a misalignment between legal requirements and the reality of invention (Silbey, Reference Silbey2010, 214–16; Lemley, Reference Lemley2012, 711).

Law and society scholarship has much to say about such misalignments, but Beauchamp, Arapostathis, and Gooday do more than provide another example of a classic law and society problem. By providing convincing examples of late-nineteenth-century technologies “invented by law,” they pinpoint law and lawyering as a source of this misalignment, asking us to think about law's role in narrative production and reiteration. But we can readily find evidence for the generation of great men narratives in other sites as well, inviting us to think about the movement of cultural narratives as we consider their use in law and history.Footnote ²⁰

Consider Eli Whitney, who patented an improved cotton gin in 1794. He is perhaps the first anointed great American inventor (Cooper, Reference Cooper2003, 87; Lakwete, Reference Lakwete2003, viii). Innovating as a guest on a Georgia cotton plantation, Whitney was not working on a research team or for a corporation. In that sense, he was a “lone inventor.” Yet he may have had assistance in developing the cotton gin patented in his name, and certainly developed and sought to commercialize his innovation in a landscape replete with different gins, many of which were patented (Lakwete, 2005, 47–71). Like Bell, he encountered rival claimants, and his business partner strove to use patent litigation to quash rivals and make Whitney's patent, like Bell's, foundational to a new technological direction. Unlike Bell, though, Whitney suffered mostly legal defeats. Although his patent was never ruled invalid, his lawyers repeatedly failed to persuade courts that his patent was infringed by rival gins. Many contemporaries argued that these cases proved that he did not invent the cotton gin. Still, by the early nineteenth century, his name became firmly associated with a novel form of the cotton gin, which in turn was credited with a transformation of the agricultural economy of the US South (Lakwete, Reference Lakwete2003, 66–71). Writing in opposition to the judicial decisions, Whitney's contemporary supporters, popular writers, and generations of historians crafted and maintained the tale of Whitney's ingenuity as a great inventor, a tale that continues to be told to schoolchildren and college students today (Majewski, Reference Majewski2004, 520).

While we might decide that Whitney fits within the “invented by law” argument because his reputation was secured by a patent, it is clear that his fame was not made in the courtroom, the site of his losses. Further, his reputation as a great inventor has not been maintained for over 200 years by law, but rather, as Angela Lakwete has convincingly shown, by other forces, including the contested terrain of North/South relations that led not only to the American Civil War but also to decades of historical narratives seeking to explain slavery, the war, and its aftermath (Lakwete, Reference Lakwete2003).

It is also clear that the great man of invention tale about Whitney maintained by this historiography became a resource that lawyers, seeking to craft winning narratives in subsequent patent cases, could draw upon. In seeking to “make” their client into the first and true inventor through law, lawyers not only originate stories, but also reuse and repurpose existing stories, and powerful cultural tropes such as the world-changing genius inventor are a good starting framework for winning legal arguments.

If the malleability of the law, and the power of its narratives are not only acknowledged, but also viewed as intentional and positive, then our perspective on the great inventor narrative shifts. To dismiss the use of such narratives in law as “myth making” misses an opportunity to consider relevant scholarship about truth making in law. Law and society scholarship offers an explanation of the persistence of such narratives despite their reductionist falsity by thinking institutionally, rather than doctrinally, about the law.

Judicial resolution becomes useful precisely when the truth is unclear, and it is the very indeterminacy of the legal system, including the interpretative flexibility of patents, that supports resolution, as patent drafters and litigators write and rewrite the origin story of an invention. From this perspective, Bell's legal victories, for example, and his status as inventor of the telephone, are not so much a failure or hoax, a myth designed to obfuscate, cheat other participants in invention out of credit, or cast a rosy glow on a past of independent craftsmen (although the truth produced in a courtroom may serve all these roles), but can be seen as the law working, if not perfectly, at least as many observers have described it. The law is functioning as we have designed it to function, to create a dominant story, and thereby end a dispute. Great men of invention are, perhaps, a necessary, or perhaps at least an inevitable and not undesirable, byproduct of the legal system.

Even so, these books are a crucial intervention. There is undeniable value in destabilizing great men of invention narratives by exposing how such historical rewritings oversimplify inventive processes as well as by revealing their contingency, a contingency that, in technologies involving patent disputes, is deeply linked to the workings of the Anglo-American legal system. As scholars of legal storytelling have incisively noted, legal narratives can reiterate inequality, and require examination and, often, disruption (Ewick and Silbey, Reference Ewick and Silbey1995, 215–17). Counternarratives can sometimes assist that process (Ewick and Silbey, Reference Ewick and Silbey1995, 199), but to replace great men of invention with “great men of law” who “made” inventions in the courtroom would be to draw only superficial conclusions from these books, conclusions their authors avoid. In the end, despite their emphasis on the role of legal frameworks and practices, Arapostathis, Gooday, and Beauchamp acknowledge the lack of any single causal link between patent litigation and inventive fame. As Beauchamp concludes, despite his bold claims for the “patent that changed America,” “the role of patents can be surprisingly hard to pinpoint” (Beauchamp, Reference Beauchamp2015, 165). We should be as suspicious of single-origin stories grounded in law as we are of such stories grounded at the workbench, or, like Whitney's fame, in the historian's pen. Social construction of technology as a methodology was designed to decenter one actor to look more broadly at innovation, an approach that law and society analysis of the legal system generally supports. If we pick one causal explanation, even one as multifactored as the legal system broadly construed, we lose sight of important actors, institutional frames, and motive forces. However, if we avoid substituting the reductionist great men of law for the great men of invention, these books offer a more useful lesson, pushing us to consider legal storytelling alongside other sources of great inventor narratives.

Legal Storytelling and Edwin Land

Fierstein provides a recent example against which to test the arguments Arapostathis, Gooday, and Beauchamp develop using examples from a century ago. He also provides us with a detailed example of contemporary legal storytelling. Triumph of Genius tells the story of instant photography and of a great inventor, Edwin Land, by concentrating on how lawyers defended Polaroid Corporation's patents.Footnote ²¹ To Fierstein, the indeterminacy of the law is not news; it is his bread and butter as a lawyer, and the foundation of his story. Further, unlike historians left to draw inferences from remaining traces, Fierstein, as a member of Polaroid's trial team, personally knew the great man of invention at the center of his book, and had access to materials beyond the public records, including his own recollections (Fierstein, Reference Fierstein2015, 535–36). The book is thus replete with detail, although the reader needs to remain cognizant that it is a Polaroid-centered retelling, with Fierstein's account of Kodak's actions necessarily based on many fewer sources, primarily news accounts, legal filings, and moments in which Kodak lawyers and scientists interacted with the public and with Polaroid. Although Fierstein strives for a neutral tone and presentation, he is as susceptible as any litigator to the tendency to believe that one's client's position is correct, and that any adverse ruling is caused only by some mixture of attorney or judicial error.

Land's biography provides excellent fodder for a great inventor narrative. A prodigy who invented his first successful technology, polarized glass, at age nineteen as a Harvard College student on leave, he began working on instant photography in 1943 (Fierstein, Reference Fierstein2015, 11–12, 42). Supposedly spurred by the impatient question of his young daughter, who wondered why she could not see a vacation snapshot instantly, Land dreamed of a camera that would develop each picture immediately upon taking, revolutionizing the film industry (Fierstein, Reference Fierstein2015, 42).

Polaroid introduced the first instant camera in 1948 (Fierstein Reference Fierstein2015, 64–65). Land was not satisfied, however, and wanted to make his instant cameras faster, more compact, and able to develop color film (Fierstein, Reference Fierstein2015, 66). He continued to develop the technology to the point that, by the 1970s, instant cameras were cheap and reliable enough to become a widespread consumer item—and to offer a competitive threat to KodakFootnote ²² (Fierstein, Reference Fierstein2015, 122, 167). Triumph of Genius recounts in depth the patent battle between Polaroid and Kodak that began in April 1976, just a week after Kodak Corporation announced the introduction of its competing instant photography cameras and film, and concluded in 1991. The breathtakingly large damage verdict won by Polaroid, equivalent to at least $1.5 billion today, was preceded by years of hard-fought discovery and pretrial motions, and then months of direct and cross-examination in the courtroom, first in the liability phase and then in the damages phase of trial.Footnote ²³

Fierstein centers the dramatic focus of the book, and the bulk of its text, on the fight to prove the Polaroid patents valid as describing new and original means of developing film. As in the nineteenth-century patent battles described by Arapostathis, Gooday, and Beauchamp, the defendant Kodak sought to prove that the Polaroid patents were invalid in order to avoid a finding of infringement. In part, Kodak sought to demonstrate that the Polaroid patents claimed inventions that were previously known, or obvious in light of earlier technologies. This argument challenged the status of Land as the inventor of instant photography; his business and his reputation were at stake.

To Fierstein, the fact that there is ample room in the legal system for parties to craft competing narratives of invention is what his client, Polaroid, was paying for. He delves deeply into what he sees as the crucial role of lawyers and law in creating the Polaroid patent portfolio and defending it. He describes Land's insistence on keeping a patent lawyer full-time at his side during intensive months of work on his pet project so that the lawyer would understand and be able to craft protective patent applications along the way (Fierstein, Reference Fierstein2015, 49–50). The sheer volume of detail in the book about the choices made by Polaroid's litigators, from the order in which depositions were scheduled to the extent to which Land would be involved, lends credence to the significance of legal strategy in the eventual legal vindication of Land's inventions and Land's status as inventor. Unquestionably, the narrative of instant photography that the Polaroid legal team presented to the judge—a narrative that was largely accepted—was the product of lawyering, from patent drafting and an initial business alliance with Kodak to the many strategic decisions of trial preparation and case presentation. Following the arguments developed by Beauchamp, Arapostathis, and Gooday, one might readily conclude that Land and instant photography were “invented by law.”

Yet Fierstein does not question the role of Land as hero of the story. Even though he obviously thinks highly of the lead Polaroid lawyers, he does not tell a “great men of law” story to explain instant photography. Instead, he presents Land himself as the author of the narrative ultimately issued by the district court to support its finding that Polaroid's patents were infringed by Kodak. As a witness, Land recounted a story that linked together his past actions in Polaroid offices, scribbles in lab notebooks, conversations with collaborators, flashes of inspiration, and days of grinding experimentation as the stuff of a novel technology. In Triumph of Genius, his lawyers were (very intelligent and skilled) narrators, but not originators. It is Land's genius that triumphs.

Fierstein argues that the “extraordinary effectiveness of Land as a witness” was “the reason” Polaroid prevailed, albeit “bolstered … by the big-picture, real-world story [the lawyers] had worked so hard to present” about the problems Land had encountered and his solutions (Fierstein, Reference Fierstein2015, 471). In a battle of expert witnesses about the meaning of those slippery documents, the patents, Land had a unique tale to tell as the inventor. Fierstein quotes the presiding judge as recalling later that Land “was ‘fabulous’ as a witness because he was fighting for his intellectual children, ‘protecting what was his’” (Fierstein, Reference Fierstein2015, 510–11). Insofar as we get glimpses into Land's point of view as Fierstein quotes Land's speeches and interviews, Land agrees that he is the originator and patent law is one of his tools. Throughout his career, Land repeatedly explained how his ability to introduce the exciting new technologies he dreamed up, beginning with his first break-out product, polarized lenses, was dependent on a strong patent system (Fierstein, Reference Fierstein2015, 74–78).

Thus, even while demonstrating how much lawyering supported Polaroid's patent victories, and the ultimate legal declaration that Land invented instant photography, Fierstein tells us that law does not invent, it merely ratifies. In Fierstein's worldview, the patent system is an indispensable part of the innovation economy, and lawyers are key to that system, but they are not a means of picking one inventor out of many contributors. Although Arapostathis and Gooday argue that without a definitive patent litigation, technologies often lack an origin story associated with one inventor, Fierstein portrays Land as the known inventor before, and outside of, any courtroom action, irrespective of his assistants and other claimants to the new technology. He accepts the great inventor narrative, not as a form of myth making by the law, but as a certification by the court system of a preexisting truth.

Triumph of Genius further discourages us from understanding Land or his invention as made by law because, poignantly, Fierstein invites his readers to learn the story of Land's greatness with the knowledge that Polaroid's legal victory did not save the company from bankruptcy. Indeed, the final settlement occurred as the company was crumbling from the onslaught of digital photography, and after Land himself had died. The “triumph of genius,” at least as a matter of patents and litigation, appears hollow. Patents could not ensure long-term financial success for Polaroid (Fierstein, Reference Fierstein2015, 308–09, 504). What lives on is Land's reputation, which Fierstein portrays as distinct in origin and fate from either litigation or the Polaroid Corporation; the great man of invention stands alone, independent of his lawyers.Footnote ²⁴

Why does a lawyer who is intimately familiar with the role of lawyering in the legal victory that ratified Land's inventor status avoid a great men of law narrative? Triumph of Genius reveals another assumption that Fierstein as a lawyer makes easily about law and lawyering. Just as law and society scholarship has frequently analyzed the indeterminacy of law that the historians found in past patent cases, it also has considered a key aspect of the use of narrative in legal systems related to the role of law and judicial authority: the legal system is designed to obscure the role of lawyers and judges in truth making. More specifically, the legal system refuses to accept the role of creator, as fundamentally incompatible with that of arbitrator. For a historian of technology to explain that an invention is “made by law” is an illuminating intervention in historiography. For a lawyer or judge to say so is to disturb the delicate balance of the courtroom drama and the edifice of the law. As prior scholars have explained, the law is socially constructed as a neutral truth finder, rather than as a truth maker. The legal system is organized to avoid “hard” realist explanations that place all agency in the person of a single judge. In Anglo-American law, “compulsion and precedent … give legitimacy and authority” to the judge, cloaking judicial choice (Gewirtz, Reference Gewirtz1996, 10–11; Levinson, Reference Levinson1996, 188–89). Only when we maintain the illusion that inventions are made solely by inventors, before and outside of the courtroom, can patents, as legal entities, fulfill all roles their drafters and owners ask of them. As a well-professionalized lawyer, Fierstein is guided by this assumption, even though he takes pride in, and gives ample weight to, the skill of lawyers in assisting Polaroid to protect its business through patent law.

Fierstein's tale reveals how Land's legal team unselfconsciously relied on the refusal of law and society to assign too much agency to law, lawyers, and courts. Land wanted patents to protect his business and recoup the significant financial investment he made in research and development (Fierstein, Reference Fierstein2015, 75–77). Each patent lawsuit, and patent asserted, was a business decision about profit maximization. But Land also saw the patents as validation of his status as inventor, and part of what is striking about Fierstein's story is how protective his attorneys were of that second purpose, even while committed to litigation as a business tool. Fierstein begins his book by quoting Land from 1976: “The only thing that keeps us alive is our brilliance. The only thing protecting our brilliance is our patents” (Fierstein, Reference Fierstein2015, ix). Polaroid's attorneys made strategic decisions, including the crucial question of which patents would be asserted against Kodak, in part by considering when and how Land would appear as a witness in the litigation to claim his mantle as the brilliant inventor of instant photography (Fierstein, Reference Fierstein2015, 212). They sought to use the law to protect and bolster Land's reputation, even as they advanced the business interests of Polaroid by seeking to push Kodak out of the instant photography market. Having examined Bell's use of patents a century earlier, Beauchamp also argues that patents are both “a tool of business” and “a means to gain inventive credit” (Beauchamp, Reference Beauchamp2015, 206). The malleability of law, and the indeterminacy of the patent as a legal document, required skillful lawyering to maintain Polaroid's business and to help Bell launch his companies, but in certifying Bell and Land as inventors, the law claimed to be ratifying, rather than making, their inventive genius.

In representing their clients, lawyers rely on this assumption, seeking to offer narratives that fit within the judiciary's own legitimizing narrative of truth finding rather than truth producing. Courts enact truth finding by borrowing and sometimes adapting existing narratives, such as the great man of invention narrative, already well-established by the time of the Kodak patent war.Footnote ²⁵ From this perspective, the origins of technology are neither in law nor in the laboratory, but in a feedback loop among popular tales of famous inventors in circulation since the origin of the republic, crafty legal strategies, and judges who make an outcome look obvious, deflecting attention both from their own work and that of the legal teams before them.

Invention in Law, History, and Culture

In his unspoken reliance on legal truth finding, despite the ways in which technology is “invented by law,” Fierstein illuminates the problem that Beauchamp finds hard to solve in his historical work: “The role of patents can be surprisingly hard to pinpoint” (Beauchamp, Reference Beauchamp2015, 165). While the law may produce inventions and inventors, that is not the end of the story, as Gooday and Arapostathis also emphasize. Great lawyers, while remaining out of the public eye, juggle reputational and business goals. Bell may be remembered today because he won patent lawsuits; as Beauchamp discusses, he also may be remembered because men who controlled his patents built a long-lasting business entity that bore his name, the Bell system, and, for decades, Americans used Bell telephones (Beauchamp, Reference Beauchamp2015, 2). And even when lawyers lose, as Whitney's lawyers did, a patent may serve as the foundation for a tale of Yankee innovation that revamped the southern economy.

Meanwhile, Land's celebrity status has long since been eclipsed by that of Steve Jobs, who arguably copied and exceeded Land in showmanship, but achieved fame without a reputation-cementing patent battle.Footnote ²⁶ Both Jobs's fame, and Land's more limited reputation, are signs that made by law or not, great men of invention narratives resonate in popular culture, reiterated in a world that enjoys technological heroes. The strength of such narratives in law and culture, even when critiqued by historians and patent scholars alike, suggests that they are not so much made by law as perpetuated by the legal truth-making machine. The legal system provides incentives to lawyers to adopt powerful cultural beliefs to aid their clients in litigation and to judges to use them to add plausibility to their performance of truth finding. Even as we consider the reductionist limitations of great men of invention narratives, we need to also remember how the reiteration of cultural narratives is part of the stuff of law.