Inventors are a special breed. Their quest to create something new, driven as much for the self-fulfillment of pulling it off, as for the commercial gain, is much to be admired. There are many great stories but one that that really grabs me is that of Robert Kearns, the inventor of the intermittent windshield wiper. I remember first hearing his story over the car radio during a rainy day, where the DJ purposefully picked up on the tidbit of news that Robert Kearns had died. This, after a career lifetime battling to prove that his invention was patentable.
What is interesting about his plight is the parallels and insights to the SR&ED audit process.
The crux of the story is that Robert Kearns had designed and patented the intermittent windshield wiper. Naturally, he shopped the idea around to the auto manufacturers. But, their engagement was of a very unscrupulous nature, and Ford was the first to simply copy his design. They had already been working on their own design, but just couldn’t get this intermittent thing to work reliably and consistently.
Robert Kearns was a man of principle and was driven with the purpose to set the record straight. He embarked on a legal battle that consumed him for the rest of his career.
It is the legal argument that has a good parallel with the SR&ED audit process. Ford’s defense was on the basis that the intermittent windshield wiper was not something that was patentable (even though patents has been issued by the US Patent Office). Their claim was that the design did not meet the patent standards for originality and novelty. Ford deemed that the solution was obvious, because it did not use any new components in the underlying design.
This process is very much akin to what happens in the SR&ED audit process. The SR&ED technical reviewer is driven to subdivide all activities into their most basic set of activities. And then comes with the assertion: “This is what you guys do every day”; and: “There is no uncertainty or advancement in completing these tasks”.
Robert Kearns’ defense was that it made no sense to look at the components that were used. That part did not matter. What really mattered, was in how those components were combined in order to accomplish something that had not been done before. In the movie dramatization, Flash of Genius, he uses the analogy of taking a single word out of the dictionary. Plucking any set of words out of the dictionary does not make a great work of literature. It is how those words are combined that can yield a literary masterpiece.
It really doesn’t seem that hard to understand. Inherently, it is possible to break down any product, system, process or material, into some set of building blocks. And each of those building blocks may form part of a base set of knowledge. If you are a developer, it is your job to know the building blocks that are there for you to develop. And surely, it is reasonable that as a developer, you know how to combine the building blocks in order to create something greater than the sum of the parts. And to a degree, this is true.
But just because the project can be subdivided into a base set activities, does not mean that there is no risk and uncertainty in combining those activities. And with SR&ED audits, winning this argument has become harder than it should be. Unless you are prepared for the audit strategy used against you, it will be tough go.