Flash of Genius: Movie Review and Perspective

by Ryan P. O'Connor

In the movie Flash of Genius, patents absolutely played a central role. Dr. Robert Kearns (1927–2005), a “garage inventor”, is played by Greg Kinnear.

In a true story, Kearns takes on the Ford Motor Company, whom he accuses of stealing his idea for the intermittent windshield wiper. The invention was eventually patented; one of the Kearns patents is summarized in this drawing:

To the general public, patents can be obscure legal documents. So I was a bit worried about how the movie would handle the key aspects of patent law. Fortunately, the film casts a pretty good light on patents. Although Kearns really couldn’t prove that Ford stole his invention, he was able to demonstrate that his invention was novel and non-obvious, thereby rendering his patent valid. This is a subtle point in the movie. Kearns was not an astute business person and apparently did not require Ford to sign any non-disclosure agreements. Legally, Ford may not have actually breached anything by copying Kearns’ invention, however unethical it may have been, while the patent was pending. Kearns had a strong case precisely at the point when he could enforce his patent rights. The patent effectively leveled the legal playing field for an individual inventor against a large company.

Ford tried to argue at trial that they invented the intermittent windshield wiper that Kearns developed. However, in my view what they were really trying to argue was that they could have invented Kearns embodiment, even if they didn’t actually invent it—and because of this, the patents must have been invalid due to obviousness. Ford’s lawyers contended that the invention was a combination of old elements. Kearns correctly rebutted that virtually every invention and creative work of art, in fact, employs known elements and configures them in some new way. He presented an effective example to the jury—a Charles Dickens story that utilizes only known English words in a new combination, to create something novel and valuable.

Kearns understood his battle was not just his own. He was fighting for independent inventors across America. Many were counting on Kearns to carry through on his passion to fight for his patents. He was not motivated by money, which became clear when he turned down huge cash settlement offers from Ford litigators before and during trial. Sadly, Kearns’ legal battles became so personally taxing that his family life suffered greatly. I don’t want to divulge all the details of this movie, but I recommend it highly, especially to all you independent inventors and small start-ups out there!

In actual history, Kearns won one of the best-known patent-infringement cases against a major corporation. Having invented and patented the intermittent windshield-wiper mechanism, which was useful in light rain or mist, he tried to interest the “Big Three” automakers in licensing the technology. They all rejected his proposal yet began to install intermittent wipers in their cars beginning in 1969. Kearns sued Ford in 1978 and Chrysler in 1982 for patent infringement. The Ford case went to trial in 1990 and there were two trials. Ford lost and agreed to settle with Kearns for $10.2 million with an agreement of no further appeals. The Chrysler verdict was decided in 1992. Eventually, the Chrysler decision was challenged and went to the Supreme Court who ruled in 1995 against Chrysler and in favor of Kearns. Chrysler was ordered to pay him $18.7 million.

Another historical note relates to the title of the movie. For a long time in the United States, an inventor needed to be able to demonstrate a “flash of creative genius” to be entitled to patent rights. It became so difficult to establish what such a flash of genius really meant, that in 1952 the patent laws added the fundamental doctrine that to be entitled to a patent, an invention must not have been obvious to a person of ordinary skill in the art at the time the invention was made (35 U.S.C. §103). In a fatal strike to the flash-of-genius standard, the last sentence of 35 U.S.C. §103 is that “Patentability shall not be negatived by the manner in which the invention was made.” Inventors do not need to point to a single moment in time.

More recently, the U.S. Supreme Court may have resurrected some form of the flash-of-genius test. (KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 2007). An invention, according to the Supreme Court, cannot just be the product of “ordinary innovation,” i.e. putting together combinations of prior teachings in the art. The Court suggests that there must be something more, something exceptional. Yet almost everything appears obvious and ordinary in hindsight. It is also interesting that the KSR case, like the Kearns case, involves components in automobiles!

As a final note, I read U.S. Patent No. 3,351,836 issued to Kearns, to ascertain whether it appears to be a non-obvious invention. Based on my quick review, the patent describes and enables the scope of the claimed invention. There are many tricks involved, which gives a certain “coolness” factor to the patent. I see nothing that would suggest the invention would have been obvious to a skilled artisan at the time of filing. Furthermore, many secondary considerations point to non-obviousness, including: long-felt need in the art; failure by others (in Detroit) to solve the problem; and copying of the invention commercially. Kearns was right, and he ultimately prevailed.