Microsoft’s April 9 deal to spend $1.3 million apiece on 800 patents from AOL was another skirmish in the patent wars that have engaged the technosphere. Just last summer, we watched a blizzard of headlines, lawsuits, and billion-dollar bills:

We wonder: Is this a situation that only a patent lawyer could love, or are these purchases and lawsuits the inevitable price of progress in our high-tech world? Are they the inevitable outgrowth of a venerable system that, for all its flaws, is still better than nothing?

Patents are licenses to exclusively make and market an invention that are inscribed in the U.S. Constitution. The concept is simple — and ridden with inherent conflict. If you invent a small device (a “midget widget”) that is new, useful, and “not obvious” to people skilled in the art of widgetry — your widget can be protected by a U.S. patent.

If I make or sell a widget that uses your invention (that “infringes on your patent”), you can sue me for damages, and a court may order me to close my widget-works.

So far, my invention has benefited me, my employees and customers, but when the patent (which must explain the inner workings of my midget widget) expires after 20 years, it becomes available to anybody.
And so (in theory) patents stimulate innovation and progress by conferring a short-term monopoly in return for short- and long-term social and economic benefits.

But what sounds good on paper can hide complexities that only a patent lawyer could love:

“Greasing the wheels of innovation” or “throwing sand in the gearbox”?

It’s not hard to find claims that the patent system is “broken,” and nobody disputes that “bad patents” have been issued for innovations that are obvious, inane or unworkable.

Patent battles are nearly as old as the U.S. patent system: Eli Whitney spent years in court trying to enforce his patent against infringers who cobbled together homemade cotton gins. His “victory” came just one year before the patent expired.

Lawyer-letters about patent infringement are a dreaded fact of life in technology industries, but no matter who wins, patent battles transfer money from the buyers of phones and computers to patent lawyers.

The pace of U.S. patent awards has picked up to about 200,000 per year, and some with a dog in the fight say the system does protect the rights of inventors.

The sentiment is not universal.

Adam Jaffe, an economist at Brandeis University, co-wrote a book on the patent system² that refers to a “broken patent system” in the subtitle. Jaffe says patents cut both ways. “Patents are important in fostering innovation, because 99.9 percent of the time, inventing something is just the first step. You require a significant investment … to get something from the invention stage to actual production, and unless you are independently wealthy, you need someone who is hoping to make money to take you through the development stage.”

And that “someone” may view a strong patent as your most valuable asset.

Software and high-tech patents?

Innovation “is a very complicated process,” Jaffe adds. “In most cases multiple ideas are interacting. In the extreme case, in software and high technology, people say a product might invoke 100,000 patents. It can get very messy.”

When the United States started issuing large numbers of software patents in the 1990s, the inexperienced patent examiners issued many dubious patents. Although the examinations have gotten more stringent, some still think software should be exempt, or patented under different standards.

Searching for competing inventions in software, for example, is comparatively difficult, and the search is the basis of the patent examination.

In most cases, says Tim Berners-Lee, a commentator on tech issues, software developers don’t bother doing thorough patent searches, which, he maintains, could require more patent lawyers than exist on earth.

Trolling for profits?

Although patent disputes are nothing new, they have been systematized by “patent trolls” — companies that own, defend and license a library of patents. Depending on your point of view, trolls are:

NPR covered a prominent case of trolling, complete with shadowy, unoccupied offices.

But even if trolls can be a barricade to innovation, “in practice it will be very difficult to change the rules in such a way as to prevent that,” says Jaffe. Would you allow infringement suits only from those who are moving a patented idea toward the market? “Say I’ve got an invention and am looking for a company that has the resources to bring it to market… and someone else comes along and steals the idea. Are you saying I can’t sue because I am not on the market?”

As with many parts of the patent system, finding faults is easier than fixing flaws, he indicates. “I don’t disagree that in a sense people are abusing the system by amassing piles of patents, but it’s naïve to think you can tweak the system to shut that down.”

First-to-file, or first to invent?

The America Invents Act, signed into law September, 2011, made what former commissioner of the Patents and Trademark Office Robert Stoll calls “the most revolutionary change in patent law in 60 years.”
The changes start with the basis for obtaining a U.S. patent. Previously, you had to prove that you were the first to invent something; now you must be the first inventor to file.

“First-to-file” will make life simpler, Stoll told an audience at the University of Wisconsin-Madison in April, by deleting disputes about who made the invention first. “First-to-file provides more certainty to the system, and reduces the ugly interference cases that don’t provide much benefit to the United States.” (An interference proceeding now determines whether someone made the invention before the patent applicant.)

“First-to-file really favors large companies that have sufficient resources to get to the patent office first,” argues Carl Gulbrandsen, managing director of the Wisconsin Alumni Research Foundation (WARF), the private, not-for-profit technology transfer arm of the University of Wisconsin-Madison, “and it disadvantages independent inventors and universities. I expect filing costs will go up.”

Got an app for that patent?

Here’s the snag: When you invent a molecule that could make a tire last forever, you may not know right away if it’s worth filing a patent application. Under first-to-invent, you could wait as much as one year to file.

Filing a patent can cost tens of thousands of dollars, which is money you could better spend on research that might show that your invention is solid — or as evanescent as a rainbow.

But under first-to-file, you lose if an inventor in Berlin or Tokyo files an app before you have time to decide. “AIA has weakened the grace period and the ability of independent inventors to test out the invention, and appropriately get financing to help with filing,” says Gulbrandsen.

Gulbrandsen also charges that the new law contains, “So many undefined terms that they will be litigating it for 15 years. They have essentially thrown out 100 years of case law; it’s a full employment act for lawyers.”

Winnowing the chaff — or weakening the patent system?

Although interference proceedings are now history, Gulbrandsen says AIA contains too many new ways to challenge patents. “There used to be two principal ways to attack a U.S. patent, and that made them strong. Now there are literally nine ways, and that weakens them overall. For a university, this will mean increased expense [for defending existing patents], and many of them won’t be able to bear that.”

Since its founding in 1925, WARF has contributed $1.24 billion to UW-Madison as royalties from more than 2,300 patents for inventions by university researchers. It has become a significant source of income to the university’s researchers and a model for other university patent offices.

A strong patent system has benefited the United States, says Gulbrandsen. “It’s necessary for innovation, and the last thing you want to do, if you want to create jobs, is to weaken the patent system, and that is exactly what we have done” with AIA.

But Jaffe, although no fan of the patent system, sees a benefit in these after-the-fact challenges, since “the vast majority” of the 200,000 U.S. patents granted each year are trivial (like that baling-wire-and-chewing-gum flying machine). Because the patent office must judge a flood of applications with limited resources, “It cannot do an exhaustive analysis, and it would be crazy to invest the resources to get it right every time.”

Under the new system, after the initial patent examination culls the obvious chaff, Jaffe says, competing inventors could contest a wobbly patent. Now, he says, “You have the opportunity, at least in theory, to go to the patent office and say, ‘This wasn’t really novel.’”

Although it’s easy to criticize the patent office, Jaffe says it has more expertise than the federal courts, the final resting place for most patent disputes.

Who benefits, who gets hurt?

In the ideal world — where patents are perfectly drawn — innovation wins. “I equate patents and innovation,” says Gulbrandsen. But despite its promising moniker, the America Invents Act “makes it more difficult for the inventor to raise the funds necessary to bring the invention to market. One of the best tools an entrepreneur or a startup has to raise money is a patent. It gives some assurance to investors that if they provide the funding, they will be able to recover it and get a return. The patent gives you the right to exclude others. Weakening the patent system increases the risk for investors, and that’s bad for inventors.”

University technology-transfer offices are going to suffer, says Gulbrandsen, who directs one of the oldest and largest in the nation, since many of them must wait to file a patent until they have found a business that wants to pay for filing and license the patent. “Although WARF is an exception, under first-to-file, you don’t have time to find a licensee, and so most universities tech-transfer offices will drop out.”

Individual inventors, Gulbrandsen notes, seldom have a patent lawyer on retainer.

Still, too much protection stifles innovation, says Jaffe, who says the system requires balance. “I don’t think first-to-file changes a lot. The rest of the world has been on that for a long time. There are going to be impacts in both directions, but in most cases, first-to-invent is just a source of conflict, because it’s harder to establish. This just simplifies things and reduces controversy, which is a very good thing.”

Ever wonder why the calendar requires us to retool a schedule every year? Ever question why your birthday will fall on a different day of the week next year? Do you grit your teeth trying to remember to insert a leap day every four years, except on the century, except you do add a leap day on the fourth century?

Any rule that requires a double-exception to the exception, friend, is a rule that has overstayed its welcome.

Our calendar must account for the fact that Earth rotates 365.2422 times during one full orbit of the sun, so any calendar will require some shimming.

Two questions: How many shims are too many? And how many people would be willing to swap out the clunky calendar for a better one? Remember, no matter how smart the invention, inertia always gives an undeserved advantage to tried-and-true kludges like the QWERTY keyboard, invented to slow your typing speed.

Shims and arrows of outrageous calendar

The modern calendar dates to 46 B.C., when Julius Caesar (or more likely a lackey) built a calendar on the assumption that the year contains 365.24 days.

For a while, that was close enough, but by the 16th century, the tiny error was adding up, and the actual seasons no longer jibed with the calendar. In 1582, Pope Gregory (or was it his flunkeys?) pruned 11 days from October and produced the modern calendar.

The Gregorian calendar, sadly, still relies on that jury-rigged leap day, and it also forces any given date, whether holiday or not, to rotate around the seven days of the week like a weather vane in a tornado.

All those encumbrances bothered Richard Conn Henry, a professor of astronomy at Johns Hopkins University. “It’s disjointed, hideously inefficient and there’s no value added,” he told us.

Hideously inefficient?

Rather than kvetch ’til the end of days, however, Henry worked with Steve H. Hanke, an economist also at Hopkins, to build the logical, “permanent” calendar seen in the rollover, above.

Henry studies an obscure type of background radiation in the universe. We mentioned that astronomers are obsessed with time, date and Earth’s position, but Henry says, “I got into this calendar as a complete sideline. Some years ago, I was putting together a schedule for my course, and I thought, ‘Why do I have to put together a schedule? I just taught the same identical course.’ The reason is the stupid calendar changes each year in a pattern that is completely irregular.”

Nor was he the only person with this problem, he realized. “Every school, team, club, everybody has to go through this. But it’s not necessary at all. We can make a simple adjustment, preserve religious sensibilities, and come up with a stable calendar.”

Calling clever calendars

The Hanke-Henry Permanent Calendar has 12 months: four have 31 days, and eight have 30. Each quarter of the year is 91 days long, with two 30-day months and one 31-day month. Each year starts on Sunday, meaning Christmas is also Sunday.

Every year.

If you’ve been pecking keys on your calculator, you’ve already objected: I’ve been short-changed! The year has only 364 days! Right, and to compensate, every five or six years, we get an added seven-day week.

The freebie week, while not part of a month, allows the calendar to jibe with the seasons.

Beyond simplicity, the new calendar would help the money-changers, Hanke observes. Financial institutions calculate interest on a daily basis, but months have different numbers of days, and calculations require a lot of software tweaks. “Our calendar would simplify financial calculations and eliminate what we call the ‘rip off’ factor,” explains Hanke. “To determine how much interest accrues on mortgages, bonds, forward-rate agreements, swaps and others, day counts are required. Our current calendar is full of anomalies that have led to the establishment of a wide range of conventions that attempt to simplify interest calculations.”

Can the new calendar fly? The Gregorian calendar won acceptance because the Pope backed it, Henry notes, but he’s not sure he can get papal participation this time around. But without widespread acceptance, an “improved” calendar would really make things even worse.

Image: eliazar

Here’s a great idea that flopped: Part of a lesson in Esperanto, a simplified language invented in 1887 that, sadly, never caught on and brought international peace despite its many practical advantages.

One time fits all?

We’ve been saving the best for last. Doesn’t a stable calendar deserve a universal system of time? That’s right: one time, one date, worldwide. If it’s midnight in London (already hour zero on universal time), it’s midnight in San Francisco — where the sun is shining.

For people who do lots of traveling, or arrange international meetings, the advantages are obvious. Although this sounds awkward to The Why Files, Henry notes that, “In every single country, with zero exceptions,” airplane pilots already use coordinated universal time (UTC) rather than local time.

UTC helps fight confusion in the air, but even Henry recognizes that one-time-fits-all could be a tougher harder sell than the permanent calendar. The new calendar, he says, can stand on its own. “There are 365.2422 days in the year, there is nothing you can do about that. Our calendar must reflect that length. We have to take that magic number that nature has given us by accident and see what kind of calendar we can make.”

On May 4, scientists announced success after a 50-year quest to measure two key consequences of Einstein’s theory of general relativity. The most perfectly round objects ever created by human hand, spinning aboard a spaceship launched in 2004, have detected infinitesimal disturbances in spacetime, the invisible fourth dimension of the universe:

To The Why Files, frame-dragging means that space is no longer flat, or even just warped. It is also twisted. And as a matter of principle, The Why Files likes twisted.

These consequences of predictions made in the early 20th century by history’s archetypal theoretical physicist are yet more proof that Einstein had it right, and are the latest chapters in history’s most compelling scientific detective story; which substantiated the highly theoretical speculation of a brilliant scientist through nuts-and-bolts observations of the universe.

Courtesy Eric Zuelow, University of New England

Is this tyke being “frame-dragged” in accordance with Einstein’s general theory of relativity, or is he just playing in a park in Kenilworth, England?

1905: Relatively special

In 1905, the same year he finished his Ph.D. thesis, Einstein published several amazing insights, including papers on Brownian motion and the photoelectric effect (the latter won Einstein his sole Nobel Prize). One of those papers proposed a theory of “special relativity” that said that the speed of light is fixed and independent of the observer’s motion. The 1887 Michelson-Morley experiment convinced Einstein that there was no ether (the supposed physical background that allowed light to move), and that the laws of physics were the same in reference frames moving with a constant velocity relative to each other.

Common sense says that a ball thrown from a moving car will move faster than one thrown by a person standing still – and still faster for someone in another car driving towards it. Common sense, Einstein proved, does not always apply. The speed of light does not depend on whether the light source is mounted on a Stanley Steamer, a space ship or a water tower. The speed of light is constant. And it doesn’t matter whence you observe it. Light speed is light speed. End of story.

Image: FL0

Using a device like this, Michelson and Morley found that light had the same velocity under different circumstances; a key stimulus to Einstein’s thoughts while working on special relativity.

1916: General relativity

Einstein’s theory of “general” relativity described how gravity affects space and time. Following his habit, Einstein started a thought experiment — a series of “what-if” questions – related to gravity: “If I were falling through space, I would not feel gravity.” Therefore, the laws of physics did not require gravity in every situation. But since the laws of physics must apply everywhere, then gravity must result from something else, which Einstein concluded was the fabric of spacetime.

The classic explanation for spacetime is this: gravity results when the curved fabric of spacetime causes a massive object (a bowling ball or a galaxy) to distort space-time, causing other objects to fall toward the “valley” it has created in spacetime. To us, this looks like gravity, but to Einstein, it’s more a matter of geometry.

1906: Working on the proof

One year after Einstein published special relativity, scientists got some support for the theory, says Richard Staley, an associate professor of the history of science at the University of Wisconsin-Madison. Einstein and others had predicted, for different reasons, that certain fast-moving electrons would gain mass. German physicist Walter Kaufmann did some experiments, and interpreted his results as proof that the mass gain was due to a competing theory rather than relativity, but “the tests were not accurate enough to make a decisive choice between the different theories,” Staley says.

1919: Sun’s gravity bends light

The first confirmation of general relativity appeared after a highly publicized journey by British astronomer Arthur Eddington. During a total solar eclipse, Eddington observed stars that were almost directly behind the sun. As predicted by general relativity, their starlight was bent by the sun’s gravity.

Gravity, counter to intuition, could bend light, and Eddington, no dunce, became an ardent popularizer of relativity.

Although we may look back on Einstein as an oddball with a zany haircut who stuck out his tongue and rode a bike, he was a serious man who thought about politics as well as physics. Living in Germany during World War I, he was an outspoken pacifist who organized scientists against militarism. “Einstein thought we needed to think across national borders and tried to start a book project to include contributions from people from neutral and enemy countries,” Staley notes. “Most of his colleagues said it was a great idea, but would be counterproductive. They refused to participate, so it did not happen.”

Even before his fame got a boost by the 1919 confirmation of relativity, Einstein was willing to “take stances counter to others,” Staley says. “He was cautioned about going public, but when the war was finished, he decided he’d been right. Even though physics does not give you a particular insight into politics, it was clear that nobody had better insights, so he might as well make his views public.”

1974: Neutron stars and gravity waves

By the 1920s and ’30s, relativity was enshrined as a foundation of physics, but the proofs rolled on. In 1974, researchers found that a pair of neutron stars — phenomenally dense objects formed after regular stars collapse — was losing energy. Neutron stars emit extremely regular radio pulses, and the slowing of the pulses was interpreted to mean they were losing energy through the gravitational waves that general relativity predicts. The discovery won the 1993 Nobel Prize for physics.

Detecting gravity waves remains the object of an expensive, long-term scientific quest.

1979: One weighty lens

In 1936, three years after Einstein emigrated to the United States to escape the Nazis, he predicted that immense gravitation would bend light rather like a lens. Contemporary telescopes were unable to find such a “gravitational lens,” but in 1979, astronomers noticed two surprisingly similar images of a distant quasar and concluded that they were looking at a double image of one giant light source, split in two by a cluster of galaxies along the sight path to Earth.

“As usual, Einstein was ahead of the curve,” Harvard historian of science Gerald Holton told The Why Files in 1997. In 2006, a single quasar appeared in five individual images, again due to the gravity of an intervening cluster of galaxies.

Apparently a trillion stars, more or less, will do strange things…

1997: Neutron stars and frame-dragging

Although the 2011 report from Gravity Probe B was the first to identify “frame-dragging” of spacetime due to Earth’s mass, in 1997, scientists reported that rotating black holes and neutron stars were frame-dragging. The study, by Wei Cui at Massachusetts Institute of Technology, found that the gravity of a black hole spinning several thousand of times per second was distorting spacetime into a funnel shape. “It’s a very abstract thing,” Cui told us.

Black holes are extraordinarily dense points in space with a super-intense gravity that even traps light. Their presence can be deduced from a shower of X-rays produced as matter falls into the hole.

Scientists have long accepted that massive objects distort spacetime much as a bowling ball would distort a web of fabric that supports it. But frame-dragging means a rotating mass has some “sticky” quality that drags spacetime, and frame-dragging was more proof that Einstein was right, Cui said. “These are all results of his theory of general relativity, which described gravity.” In other words, gravity becomes a property of spacetime. “You can take all the facts of gravity and explain them with a certain geometry of spacetime.”

1995: The ultimate chill-out

Back in 1925, when “automobile” meant model A, and “president” meant “Silent Cal” Coolidge, Einstein predicted that a strange phase of matter would exist near absolute zero, a frosty -273°C. Expanding upon the calculations of Indian physicist Satyendra Nath Bose, Einstein calculated that atoms would enter a unified quantum-mechanical state near the coldest possible temperature.

The atoms would become a drill sergeant’s dream — identical in mind and body.

What was dubbed the “Bose-Einstein condensate” would also be a new phase of matter. Since only four phases exist in the universe — gas, liquid, solid and plasma — discovering another phase would pump up a resume.
In 1995, Carl Wieman, a professor of physics at the University of Colorado, and colleague Eric Cornell fulfilled Einstein’s prediction by creating this bizarre phase of matter at just 200-billionths of a degree Celsius above absolute zero. As Wieman told us in 1997, “We wanted to see if real atoms could ever match the ideal system that Einstein was considering, and they did match — really quite nicely.”

Quantum mechanics says that atoms can exist in certain energy states, but not in between. A group of atoms occupies numerous energy states, washing out the quantum-mechanical effects, but in a Bose-Einstein condensate, Wieman said, “You have a bunch of atoms in a single quantum state, obeying the laws of quantum mechanics as a whole. Traditionally, to see a quantum state, you had to look inside a single atom. Now we can look at millions of atoms.”

2011: Sweet success smiles on Gravity Probe B

The insights of the former Swiss patent clerk are impossible to exaggerate, but it took a lot of technical sophistication and ingenuity to detect disturbances in spacetime in the vicinity of Earth. That was the goal of Gravity Probe B.

Francis Everitt, a Stanford University physicist who has devoted his career to sailing Gravity Probe B across technological and financial shoals, compares the “dragging” of spacetime to a giant pot of honey. “As the planet rotated its axis and orbited the Sun, the honey around it would warp and swirl, and it’s the same with space and time.”

Save for the effects of gravity and relativity, the high-tech gyroscopes aboard the spaceship should point forever in one direction. Instead, gravity changes their orientation in subtle but measurable ways.

The rotors in those gyroscopes are the most precise spheres ever manufactured, which is astonishing if you consider that they were measured with “micro-inches” rather than microns.

It is not necessary  to offer a practical justification for a proof of relativity – simply explaining the universe is ample. But Gary Shiu, a professor of physics at the University of Wisconsin-Madison, notes that the ultra-precise equipment crafted for the gravity probe helped improve global positioning systems and the gizmos used to map the microwave background radiation that was created shortly after the Big Bang and still pervades the cosmos. “These technologies have already been developed, the spinoff already proven,” Shiu says.

Although some of the previous proofs of general relativity could conceivably be explained with alternate theories, Shiu says, “The frame-dragging detected in Gravity Probe B provides yet another independent test that any alternative to Einstein’s general relativity would have to meet.”

A man apart

A theory must explain the working of some aspect of nature, and it must be tested, generally by trying to disprove its predictions. Does your theory say gravity is an attraction between any two objects? Then, if you can find objects that fail to attract, you need to revise or reject your theory.

After a century of confirmation of Einstein, the obvious remaining question concerns scientific creativity rather than physics: What was Einstein’s secret? “He was very persistent, was the prototypical scientist,” says Shiu, who helped organize an upcoming conference on Cosmology since Einstein. “When he wanted to solve a problem, he could take 10 or 20 years. We cannot figure out the answer in a few months or years, we need to do whatever it takes to solve the problem.”

Kip Thorne, a California Institute of Technology physicist, told us in 1997 that he attributed Einstein’s deep insight to his “conviction that the universe loves simplicity and beauty… His willingness to be guided by this conviction, even if it meant destroying the foundations of Newtonian physics, led him, with a clarity of thought that others could not match, to his new description of space and time. … All new laws that have been successful in describing the real universe have turned out to obey Einstein’s principle of relativity.”

Indeed, Thorne called relativity a kind of super-law that “must be obeyed by all laws of physics, no matter whether they are laws governing electricity and magnetism, or atoms and molecules, or steam engines and sports cars.”

Gerald Holton, a physicist and historian of science at Harvard University, pointed to several characteristics that helped Einstein ^{1 2} excel:

Beyond a unique ability to peer inside the universe, Holton says Einstein also wrote about his philosophy and technique. “This man allowed himself to be more public and frank, and in particular about his scientific method, which is very much the method still used by other physicists.”

Yet for all his brilliance, Einstein failed to find the holy Grail of physics –a “grand unified theory” to explain all four physical forces. Electromagnetism and the strong and weak nuclear forces are explained by a single theory called the “standard model,” but to this day, gravitation stands stubbornly apart.

Summing up? Einstein

Einstein’s revolutionary theories grew from his philosophy of nature and insistence that physical laws must be true on Earth, space ships and stars, combined with a phenomenal intuition for nature and enough self-confidence to rewrite Newton’s laws of gravitation and motion. Einstein interpreted experiments from the 1880s, which suggested that the speed of light was independent of the observer’s motion, as meaning that the speed of light is constant throughout the universe. He then proposed that mass would affect light and spacetime, which is the backdrop for all events, atomic, human, cosmic and comic.

Still, everybody makes mistakes. Einstein denied the existence of black holes and loathed the role of chance in quantum theory, saying “God does not play dice with the universe.” He also cooked up a “cosmological constant” because his theories implied that the universe was changing size, which he considered too weird to be true.

When astronomer Edwin Hubble proved that the universe was expanding, Einstein called the cosmo constant “the greatest blunder of his life.” And yet recent discoveries indicating that the universe is, for unknown reasons, expanding ever faster could mean that his “greatest blunder” was not that far off…

Although Newtonian physics still describes what we see every day, more than a century after the young patent clerk brutally shouldered Newton aside, there’s no question Einstein grasped the big picture. And that returns us to this simple question: “How did he do the things he did?”

“Einstein was typically working between several different theoretical approaches,” says Staley, the science historian. “He was looking for places in which the best laws we currently have fail or don’t provide clear guidance, and then was trying to use those critical gaps to provide new insight into connections between different areas. People often think he thought outside the box. I think he thought across several boxes, and saw ways to link theory that others did not recognize. Although others were also looking at the limits of theory and trying to unify different areas, he did it better.”

For decades, one name has dominated discussion of the ancient New World: Clovis. Tools representing the characteristic Clovis technology, first found in Clovis, New Mexico, in 1929, have long been considered the product of the first inhabitants of the Americas. With a tool style that’s been found across much of North America, Clovis was the best-selling brand in “the first Americans” competition.

Clovis technology is apparently a home-grown phenomenon, as it’s never been found in Northeast Asia, the source of migrants into the New World.

The oldest solid date for Clovis people is 13,100 years ago, says Michael Waters, an archeologist at Texas A&M University. Now, in an article in Science on March 25, Waters and colleagues argue that tools have been found near Austin, Texas, that date to 15,500 years ago.

The researchers found 15,528 artifacts at a site called Buttermilk Creek. Most of their finds were flakes busted off while making stone tools, but the site also yielded 56 stone choppers, points and scrapers.

Using a technique that calculated when an object was last in direct sunlight, “We took the most conservative route to estimate the age,” says Waters, who directs the Center for the Study of the First Americans at A&M. The stone tools and flakes were probably made by a band of hunter-gatherers who paused at the creekside site.

Looking for a date

Because no organic remains were available for carbon-dating, the scientists relied for dating on optically stimulated luminescence, or OSL. “OSL has been around for a long time, has been employed in geology for 30-plus years” for dating windblown sand and silt, says Waters. “It’s been compared to radiocarbon dates, toe-to-toe, and in all cases, OSL ages have been determined to be comparable.”

The OSL dating, which essentially figures how long something has been buried, took place at the University of Illinois, in Chicago, under the direction of Steven Forman.

The find at Buttermilk Creek is the latest — and one of the better documented — archeological sites to break the Clovis barrier. Others pre-Clovis finds have been made in Oregon, Wisconsin, Pennsylvania and even Chile.

The news got WhyFilers wondering:

How convincing?

To get the skinny on the Texas discovery, we phoned Steve Shackley, a professor of anthropology at the University of California at Berkeley. “Proof does not exist in science,” he told us, “but Mike [Waters] has made good, defensible arguments.”

Much of the discussion about the Buttermilk Creek site concerns the vertical position — the stratigraphy — of stone artifacts, and the Waters team went to great lengths to show that older material was under younger stuff, as expected in an undisturbed site. Undetected dislocations can confuse archeologists, who tend to think deeper is older and shallower is younger.

Buttermilk Creek actually offers a three-fer: Clovis artifacts are sandwiched above those now identified as pre-Clovis, but below artifacts are in a more modern style. “This site has all these time periods, superimposed, in the correct order,” says Shackley. Because Waters is “one of the foremost” experts in analyzing the geology of archeological sites, “I think it’s going to be difficult to defeat his stratigraphic work. He’s been very careful about it.”

Douglas Bamforth, an archeologist at the University of Colorado, says the Waters team has avoided three errors that often destabilize ancient archeological claims:

“They have absolutely dated the site, they absolutely have artifacts, and the article talks in great detail about how intact the sediment was, they have really addressed whether the artifacts are in place,” says Bamforth. “They have refitted the [stone] flakes to the tools; I am totally convinced they have an intact site” and solid dates.

But that does not prove, to Bamforth, that the artifacts are pre-Clovis — they may be early Clovis. “The deep levels at the site are certainly older than the oldest carbon-14 date on Clovis-style projectile points, which Waters very emphatically argues is the beginning of the Clovis period. But the first problem with seeing the deep levels as different from Clovis is that there seems to be exactly nothing in those levels that differs from Clovis [as the site does not contain arrow- or spear-points that would prove or disprove the case]. … So I do not see why the site is not just early Clovis.”

Not so fast!

Aware that the latest find may be seen as final vindication for the “Clovis was not first” viewpoint, we phoned Thomas Dillehay, professor of anthropology at Vanderbilt University and the University of Southern Chile, who fought for decades to have Chile’s Monte Verde site recognized as pre-Clovis. Now that Monte Verde is finally accepted as one of the best-confirmed pre-Clovis sites, we figured the experience would make Dillehay receptive to the new find.

We were wrong. “I have a mixed opinion,” Dillehay told us, proceeding to list some shortcomings in the study. “It would be most convincing if there was standard radiocarbon dating, and even better if those dates were taken from features like hearths and food stains. OSL dating has become more reliable, but it’s still not as reliable as carbon-14, although the sequences do line up very nicely with sediment dating.”

Dillehay has questions about the three-layer sandwich of pre-Clovis, Clovis and post-Clovis material. “I’m not saying the materials are mixed. Geologists, to identify the strata, applied these excellent, meticulous sediment and particle analyses, but there was no clear visible stratigraphy to distinguish Clovis from pre-Clovis, and again this does not meet standard archeological criteria.”

Dillehay also points to the lack of “diagnostic, complete projectile points in either the Clovis and pre-Clovis material. In a discipline that has placed incredibly heavy emphasis on formal projectile points as the primary criteria for acceptance of a site, along with C-14 [radioactive carbon] dating, and geologic stratigraphy, I find this sort of acceptance, which seems to be uncritical, to be a major shift in the discipline.”

Still, Dillehay says “the interdisciplinary work is first rate, and I admire the multidisciplinary approach. But had there been C-14 dating and diagnostic projectile points, all this extraneous analysis would probably not be needed.”

It certainly would be nice to find arrow- or spear-points, says Waters, but “You can’t dictate what you will find. You have to roll with the punches.” Further excavation may or may not reveal a “smoking gun projectile point,” Waters adds. “We don’t know what kind of weaponry they used. In Siberia and Alaska, people were using a lot of bone, ivory and antler weaponry, and it might be that early folks in North America were using this as well.”

But due to heat and humidity, such organic material would not be preserved in the Texas site, he says.

Migration routes

The timing of human occupation of North America bears heavily on their migration route from Northeast Asia, which is accepted, for geographic and genetic reasons, as the source of the first Americans. The melting of the last ice age during the Clovis period, starting roughly 11,000 years ago, producing an ice-free corridor through Northwest Canada that would have allowed transit into the North American interior.

But the region was clogged with glaciers a few thousand years earlier, meaning that any early immigrants would have moved along the coast, either on foot, or via short hops in boats.

The possibility of coastal movement got a boost in a study¹ published March 4, which reported the discovery of stone tools dating from 11,400 to 12,200 years ago on the Channel Islands west of Los Angeles.

According to study leader Jon Erlandson, an archeologist at the University of Oregon, the ancient residents of these offshore islands made delicate stone tools to hunt in the ocean. “The points we are finding are extraordinary, the workmanship amazing. They are ultra thin, serrated and have incredible barbs on them. It’s a very sophisticated chipped-stone technology.”

The stone artifacts are quite different from the fluted points left throughout North America by Clovis and the later Folsom peoples, who hunted big game on land, said Erlandson. “This is among the earliest evidence of seafaring and maritime adaptations in the Americas, and another extension of the diversity of Paleoindian economies.”

The find is yet another reason to doubt that Clovis was first, says Shackley. “When you get dates to 11,000 or 12,000 years ago, out on islands, that makes it tough for the Clovis-firsters, who reject maritime entry. On the Channel Islands, they had get out there by boat,” and if they were already using boats, that means they could also have boated down the West Coast, he adds. “A lot of people accept that now.”

But even if people did move south along the coast rather than inland, Dillehay says they probably needed a long time to reach Chile. “There are hundreds if not thousands of rivers that descend the western slope of the mountain chain from Alaska to Tierra del Fuego, and every river, whether major or secondary, is a temptation to head upriver,” slowing the overall southward movement.

Photo: University of Oregon Northern Great Basin Field School

In Paisley caves in south-central Oregon, researchers uncovered pre-Clovis artifacts and the oldest human DNA discovered in the Americas. Radiocarbon dates show that people lived in the caves between 12,000 and 14,340 years ago.

And if Monte Verde was occupied by 14,500 years ago, this logic suggests that people reached North America much earlier than even the 15,500 pre-Clovis date in Texas.

Should we trademark the “pre-pre-Clovis” brand?

At any rate, the increasing number of solid pre-Clovis finds answers a riddle: How did Clovis artifacts appear in so many places at roughly the same time? According to the Waters report, “These data are evidence that by 15.5 ka [thousand years ago], human populations occupied the continental United States… . The sites of Cactus Hill, Virginia, and Miles Point, Maryland, hint that these [pre-Clovis] technologies may have been present a few millennia earlier. This early occupation of North America provides ample time for people to settle into the environments of North America, colonize South America by at least about 14.1 to 14.6 ka (Monte Verde, Chile), develop the Clovis tool kit, and create a base population through which Clovis technology could spread.” ²

When science gets ossified

Although we’ve covered the Texas discovery as a bit of gee-whiz archeology, it’s more accurate to say that the discipline proceeds by stacking study atop study, says Sissel Schroeder, a professor of anthropology at the University of Wisconsin-Madison and expert on ancient peoples of the Americas. Although most of the signs left by people who lived in North America will never be found, if they even still exist, “We work with the best information we have. The very small samples of data can make some of our interpretations less robust. Archeology is a cumulative science, so future finds can potentially add confirmatory evidence, or can disconfirm earlier conclusions; you just have to be open to recognizing that your interpretations could change.”

But scientists, like other people, can get stuck, she adds. “It seems easy for certain interpretive frameworks to become quite entrenched, and repeated over and over again. Into the 1920s, it was hugely debated that there were even people in the Americas” at the end of the last ice age. “There were a number of very provocative finds that led scholars to suggest that people had been here at the end of the Pleistocene [about 12,000 years ago], but wasn’t until the find at Folsom, New Mexico [in 1926] that scholarly acceptance began to develop.”

The Folsom find, soon followed by the discovery of those distinctive fluted points near Clovis, New Mexico, sparked “a transformative intellectual step for archeologists,” says Schroeder. “This was a radical shift in thinking.”

“You build a reputation based on a particular perspective,” says Bamforth, “and it’s hard to see evidence that is in opposition; we all believe we are really good at what we do.” Those who gain fame for overturning the conventional wisdom can wind up in the opposite corner, defending their own views long after contradictory evidence arises.

Some early claims for pre-Clovis sites were based on faulty excavation or inaccurate dating, which left a tradition of doubt, Bamforth says. For example, erroneous radiocarbon dates arose after dig sites were contaminated with groundwater. And European-style artifacts unearthed in the Hudson River valley, once interpreted as evidence for ancient European immigration, actually came from ship’s ballast that was dumped into the river, Bamforth told us.

Once archeologists got used to refuting claims, that skeptical attitude itself became entrenched, says Bamforth. “Because people were making such poor claims, very powerful people in the field clamped down on any claims for antiquity, and often the rejected claims turned out to be correct. People at the Smithsonian famously had nothing to do with Folsom until finally the evidence carried the day. There’s a famous photo showing a Folsom spearpoint between the ribs of an extinct bison. That’s proof you can’t argue with.”

Clovis-first is dead, at long last!

After 40 years of assault, Clovis-first seems dead at last. The Texas find “anchors the fact that people were here in the 14,000 or 15,000 year range, there is no longer an argument with that,” says Bamforth.

As the technology of archeology improves, Waters expects some of the most interesting finds to emerge from South America. “We have this North American bias. I’ve heard a lot about early sites in South America of the same age [as the Texas site] or older that nobody hears about. If you think about the immensity of South America, there is no way Clovis was first. There are going to be some amazing finds in the next 10 years, given the South American evidence, the work with genetics and DNA. The story of the first Americans is going to stay exciting.”

– David J. Tenenbaum

Given the current hostility to government, you could be forgiven for thinking that “bureaucrat” is a euphemism for “bottom feeder” or “control freak.”

But does bureaucracy contain the keys to making a large state? Did bureaucracy’s characteristic division of administrative labor and power allow ancient states to rule areas that were too large to walk across in a day?

Yes, says anthropologist Charles Spencer of the American Museum of Natural History in New York. In an article in the Proceedings of the National Academy of Sciences this week, Spencer looked at states that arose thousands of years ago, in isolation from any other state.

He found that, so far as the archeological record could say, the rise of bureaucracy and the territorial expansion were more or less simultaneous. In contrast to another more traditional view of state development, the expansion did not occur long after bureaucracy appeared.

The six states under study were in Mexico, Peru, Egypt, Iraq, China and Pakistan’s Indus Valley.

“In all six cases this model seems to work, which suggests that this process of territorial expansion is perhaps how a state bureaucracy evolves in the first place,” says Spencer.

He adds that the tight link between bureaucracy and expansion “may tell us something fundamental about the nature of states and bureaucracy.”

All photos copyright Charles S. Spencer, AMNH, used with permission

The main plaza of Monte Albán, in the Oaxaca Valley. Building J (foreground), features some 40 stone slabs with inscriptions showing the city’s conquests.

Three stages of development

Chicken or egg?

When historians and social scientists pondered the origin of states, many figured that the growth of the bureaucracy was a precondition for an imperialist expansion of territory. But Spencer believes that territorial expansion and the growth of bureaucracy are united in a positive feedback loop. “There is much evidence that the pre-bureaucratic system seems to be spatially more limited. Once you start getting involved in managing territory beyond that limit, you have to have a delegation of authority to secondary and tertiary centers; this seems to be a requirement for maintaining one of these larger political-economic territories.”

Spencer says chiefs were apparently loath to dispatch powerful lieutenants to administer provinces, for fear they would go rogue, but the bureaucratic structure made it safer to send out tax collectors or generals with a limited array of powers. “To move toward a larger polity, it’s necessary to assign powers and roles,” he says. But this strategy requires a fundamentally different kind of administration, one based on bureaucratic principles.

Roots of an idea

The blond clay in “Crema” pottery came from a source near Monte Albán. The timing and distribution of crema ware shows when and where Monte Albán traded with other settlements in the Oaxaca Valley.

Spencer says he began thinking about the state development in the 1970s, while doing research at the ancient city of Monte Albán, located in south-central Mexico’s Oaxaca Valley. He says Monte Albán began to acquire a bureaucratic form of government around 300 BC, and the city flourished for roughly 800 years.

The specialization that characterizes bureaucracy is evident in the “diverse array” of buildings and temples at Monte Albán itself, Spencer wrote.

The Oaxaca Valley is a large, three-lobed valley, and as Spencer explored how Monte Albán gathered more territory, he found the expansion toward the north “happened much earlier than most people thought, and was in fact contemporaneous with the appearance of state institutions around 300 BC.”

That did not jibe with the theory that the bureaucracy arose first, long before the state expanded its territory to distant regions, but rather indicated that the bureaucracy and the territory expanded at the same time. “I started to think about how territorial expansion, rather than being a consequence of state formation, might be the mechanism through which the state arose, and the extra resources generated by expansion would help finance the administrative transformation itself.”

The El Palenque palace, near San Martín Tilcajete, in the Oaxaca Valley, dates to 300-100 B.C. Although this is the earliest palace yet excavated in the Valley, a similar but larger palace probably existed at Monte Albán during this period.

States may expand violently or peacefully, Spencer says. “There are ways to impose your will on another territory that may not involve killing. You may set up an economic relationship that is far more favorable to you than to them, with the understanding that if they do not play along, they will get squashed.”

On April 15th – America’s tax day – “bureaucracy” may conjure the Internal Revenue Service, but bureaucracies can be more beneficent or more sinister than that. “Government can do very good things, but this research suggests that the state, and by extension the bureaucracy, is inherently expansionistic, you might even say inherently predatory, and that is a cautionary note we need to keep in mind,” Spencer says. When a state initiates unprovoked warfare, “we should remember that this is perhaps the oldest doctrine of all in the story of states.”

–David J. Tenenbaum