We are now approaching the climax of our story of the sewing machine, as we've covered its invention, its patenting, and the rise of the first patent thicket -- the Sewing Machine War. How did this patent thicket come to an end? The answer to this question is in the title to this post.

By the mid-1850s, sewing machine firms were spending all of their time, money and energy in patent litigation, and, as a result, the sewing machine was languishing as a commercial product. The situation demanded a solution, and this solution came from an unlikely source: an attorney, Orlando B. Potter, who was heavily involved in the Sewing Machine War representing a prominent sewing machine manufacturer, Grover & Baker, of which he was also President. Potter’s solution was groundbreaking but also breathtakingly simple: the relevant patent-owners should combine their patents into a patent pool that would be administered as a commercial trust.

The opportunity for Potter to present his idea to the warring parties arose in October 1856, when by chance most of the principal sewing machine patentees and firms were in Albany, New York for the first trial being held among the litany of lawsuits that had been filed since 1854. In a meeting held shortly before the trial began, Potter floated his proposal that I.M. Singer & Co., Wheeler, Wilson & Co., Grover & Baker, and Howe combine their patents. By 1856, these four parties owned the patents that covered the core elements of the fully practical sewing machine as a commercial product.

Little is known about the exact details of this fateful meeting in Albany. It is clear, though, that Potter proposed his “Combination” as a solution to the patent thicket that was the Sewing Machine War. Scholars and historians recount that the three manufacturers agreed to Potter’s plan to create the Sewing Machine Combination.

Howe, however, initially opposed it, and, given the fundamental status of his 1846 patent in the sewing machine industry, the patent pool could not work without Howe’s participation. Howe’s opposition was understandable: The manufacturers made their money by producing sewing machines, and thus they would profit from a patent pool that freed them to manufacture and sell their products. But Howe was a non-practicing entity who made his money through licensing fees, which he was garnering through threatened infringement lawsuits and actual injunctions. In fact, throughout the 1850s, Howe was not attempting to manufacture sewing machines at all, and the profits he earned on the basis of his 1846 patent were obtained solely through royalties.

The three firms convinced Howe to join the patent pool by providing him with special concessions, which included a special royalty of $5 for each sewing machine sold in the United States and $1 for each sewing machine exported to foreign markets. Most important, Howe wrung a third concession from the other three firms that the Sewing Machine Combination would have no less than 24 licensees, which ensured a steady income stream for Howe from his special royalties on sales of sewing machines by these licensees. With these special terms, Howe agreed to join the Combination.

The Sewing Machine Combination functioned as a classic patent pool. As with modern patent pools, its four members were free to compete with each other in the sewing machine market, but they issued cross-licenses to each other in the use of their respective patents. Each member paid a $15 license fee for each sewing machine they produced. This fee was distributed among the four members of the Combination as follows: a small portion was put into a war chest to cover expenses for future lawsuits involving any of the Combination’s patents, Howe then received his special royalty payment, and the remaining monies were apportioned among all four members. In 1860, the Combination reduced this fee from $15 to $7, and Howe’s royalty was reduced to $1 for all sewing machines.

Yet the Combination was more than just a patent pool, it was also a trust. The consent of all four members of the Combination was required for licensing its patents; in practice, though, this collective consent was granted as a matter of course with the exception of license applicants who sought simply to copy one of the Combination member firm’s own sewing machines. Unfortunately, the Combination’s records were lost in a fire, but a few remnants remain, which show that member and non-member firms received licenses for producing hundreds of thousands of sewing machines. As the head of the Combination, Potter also became a lead plaintiff in many of the future infringement lawsuits concerning the Combination’s patents. Lastly, the Combination’s rules did not expressly require or promote price collusion among its members, but it was alleged to have occurred, which is unsurprising.

In my next posting on the history of the sewing machine, I will discuss the commercial innovation in the sewing machine market following the formation of the Sewing Machine Combination. This will be the last posting on the history, and then I'll conclude with some of my last postings as a guest-blogger with some observations of what we can perhaps learn from this tale, incorporating some issues already discussed in the comments to my blog postings.

The typical story of the Sewing Machine War is that the incremental invention of the sewing machine through complementary contributions by differing inventors now came to its full fruition with a litany of patent infringement lawsuits. However, Howe and Singer may have had something to do with this descent into full-scale legal warfare with their public announcement of the settlement of their “long and protracted legal controversy.” In the August 12, 1854 issue of the Scientific American, for instance, they concluded their settlement announcement with the following dire warning: “We caution the public against buying any of the numerous infringer machines in the market. They all infringe one, and some of them several, of our patents, and those who attempt to use them will be prosecuted.”

With Howe and Singer assuming this very aggressive litigation stance — now standing united together through their license agreement — it is perhaps unsurprising that the sewing machine manufacturers soon let loose a flurry of their own lawsuits. As one historian has observed, after Howe and Singer concluded their dispute, “all the sewing machine manufacturers got busily down to the job of suing each other out of existence.

Although it was no longer defending itself against Howe, I.M. Singer & Co. was soon defending itself against numerous patent-owners in more than twenty separate lawsuits filed in three or four different venues, including Philadelphia, the Northern District of New York, and the Southern District of New York. I.M. Singer & Co. was not just a defendant, as it filed lawsuits in federal court in Philadelphia against Grover & Baker and Wheeler, Wilson & Co., two of its main competitors in the sewing machine market. Howe was also soon defending himself in lawsuits in which he was charged with infringing the other elements of the fully practical sewing machine that had been invented by others.

The sheer number of lawsuits was not the only problem. These were patent infringement lawsuits, requiring testimony and documentation of detailed technical evidence concerning both the infringing product and the patented invention. The deposition testimony taken in a single lawsuit filed by Grover & Baker, for instance, was reported at the time to have “fill[ed] two immense volumes, containing three thousand five hundred and seventy-five pages” (emphasis added). In an age before computers, word processers or typewriters, producing more than 3,500 pages of legal transcripts for a single case was no small feat.

This was not an unusual case either, as Singer was reported to have “made a special closet to hold his [legal] files,” and “Wheeler and Wilson had several closet shelves filled with testimony.” An author of a nineteenth-century history of the sewing machine reported that he had pieced together Elias Howe’s life story, in part, from having “gone over thirty thousand pages of printed testimony, taken in the numerous suits to which sewing machine patents have given rise” (emphasis added). One historian observes that “the continuing court litigation over rival patent rights seemed destined to ruin the economics of the new industry.”

Although these details of the Sewing Machine War are well known, at least to some historians, no one has yet explained why this patent thick arose beyond identifying the fact that there were overlapping patent claims. But this does not by itself create a patent thicket. There have to be reasons why patent-owners assert their property claims against each other to the point of creating a litigation free-for-all, replicating the conditions of Thomas Hobbes’s state of nature, in which life is “solitary, poor, nasty, brutish, and short.”

From the historical record, it is possible to glean several reasons for the rise of the Sewing Machine War.

First, in the early 1850s, the sewing machine was not yet a commercially successful product, and there had in fact been numerous failures by both inventors and firms. On both sides of the Atlantic, Howe had attempted to secure financing to manufacture and sell his invention in the late 1840s, but failed. Even Sherburne Blodgett was skeptical of the commercial promise of sewing machines, although the Lerow & Blodgett firm was the first large-scale American manufacturer of sewing machines, which were produced under Blodgett’s patent. In fact, it was a Lerow & Blodgett sewing machine on which Singer tinkered in 1850, leading Singer to make his contributions to this soon-to-be valuable commercial product. Yet, after I.M. Singer & Co. began selling the Singer Sewing Machine in late 1850, Blodgett reportedly told Singer that he was an idiot for trying to manufacture and sell sewing machines. Sewing machines simply would not work, Blodgett told him, and the only profit a sewing machine patentee could make was in selling territorial licenses in the patent itself.

Singer’s early sales experiences confirmed Blodgett’s pessimism, as he would later write: “I met with continual objections to the introduction of my machine from persons who had bought those of prior inventors and had thrown them aside as useless, and in some cases was showed out of the stores where I called as soon as my business was made known by me.”

Second, in addition to the well-grounded skepticism of the buying public about the practicality of a sewing machine, there were cultural forces at work in nineteenth-century America that created roadblocks to the efficient adoption of sewing machines throughout the sewing trade. Thimonnier’s story was well known to Americans, and the spirit of the French luddites who had destroyed Thimonnier’s Paris workshop and had hounded him out of the country was appearing in pockets of American resistance to the sewing machine. One nineteenth-century article observed how tailors opposed the sewing machine, because they “thought it would beggar all hand sewers, and refrained from using it on principle”

Moreover, there was a strong cultural bias against the use of machines by women — the principal source of hand-sewing labor in the nineteenth century. For instance, Singer at first dismissed the entreaties of his business partners in 1850 to tinker with the Lerow& Blodgett sewing machine, responding in his usual hotheaded manner, “What a devilish machine! You want to do away with the only thing that keeps women quiet, their sewing!”

Although Singer eventually acted against his chauvinism, he was not alone in thinking such things, and the luddites who were agitating the sewing unions used these widespread prejudices to reinforce their arguments. An address to the Shirt Sewers’ and Seamstresses’ Union warned of the “disastrous consequences” to the hand-sewing female laborers resulting from the mass adoption of the sewing machine in the sewing trade, arguing “that peculiar branch of industry which exclusively belonged to women — that industry which developed itself in the facile and pliant use of the fingers — would be totally extinguished.” In sum, in the early 1850s, the financial success of the sewing machine was still an abstraction, but the prior failures, the skeptical public, and existing cultural prejudices were a concrete reality.

Third, in contrast to the practical and cultural difficulties in successfully commercializing sewing machines, Howe succeeded brilliantly in the infringement lawsuits he began filing in 1852. As a result of his injunctions and licenses, Howe was in control of the nascent industry and was making money hand over fist, or at least it seemed as such to the firms who were paying royalties to Howe while struggling with the vicissitudes of the new sewing machine market. In 1852, Howe’s patent, which had done nothing for the past six years to remedy the inventor’s extreme poverty, was now producing an income of “a few hundred dollars a year.” By 1860, he claimed to have earned $444,000 in profits from licensing his patent, which he attested to in his application for a seven-year extension of his patent term (which was granted). When Howe’s patent finally expired in 1867, as a result of his participation in the Sewing Machine Combination, his royalties totaled more than $2 million.

Such extensive licensing profits led one anonymous writer in 1867 to complain that Howe had “been overpaid for his inventive labors.” As some patent scholars would say today, Howe exploited “royalty stacking” to obtain license fees exceeding his incremental contribution to the sewing machine (he did contribute only 3 out of the 10 total elements of a successful sewing machine). By the early 1860s, Howe had not yet manufactured a single sewing machine, but he was one of the most financially successful patentees out of the hundreds of patents that had been issued on sewing machines by that time.

It was perhaps understandable that the other patent-owners perceived this non-practicing entity — the inimitable “patent troll” — to be flourishing through his use of lawsuits, injunctions and licensing, as they watched their own attempts at manufacturing actual sewing machines flounder in both the market and in court. They likely attributed the key to Howe’s success, however slight by the mid-1850s, to his apparent disavowal of manufacturing and his pursuit of royalties as his sole source of profit.

This was more historical accident than careful strategic business planning on Howe’s part, as he had attempted but failed to commercialize his patented invention, but that is not how the other sewing machine patentees probably saw it. A good subjective intent does not necessarily translate into actions that are objectively distinguishable from another person acting with bad intent. As lawyers well know, divining someone's intent is often a troublesome evidentiary (and metaphysical) issue, and thus objective actions more often than not are used as proxies for intent. In the Sewing Machine War, Howe's objective actions spoke loudly. As evidenced by the 1867 article in The Galaxy Magazine, most people attributed “the secret of Mr. Howe’s success” to the fact that “he litigated himself into fortune and fame.”

Of course, as a result of the sewing machine’s provenance, as one mid-nineteenth-century book remarked, “it is now utterly impossible to make a sewing machine of any kind of any practical utility without directly infringing several subsisting patents, the validity of which cannot by questioned.” The result was an explosion in lawsuits as these myriad patent-owners, such as I.M. Singer & Co., Lerow & Blodgett, Wilson, Wheeler & Co., and others, attempted to claim their rightful slice of the royalty pie. In so doing, they created the first American patent thicket.

Singer’s newspaper advertisements were carefully worded to avoid claiming that he was not infringing Howe’s patent, because there was no question that the Singer Sewing Machine, invented in 1850, infringed Howe’s 1846 patent. Singer’s newspaper advertisements thus reveal that he undertook the same arduous and expensive task that many defendants in patent infringement lawsuits attempt today: He sought to invalidate Howe’s patent by uncovering “prior art” that would undermine Howe’s claim to originality in his invention. The previous inventions and uses of the eye-pointed needle by European inventors were of no use to Singer, because Howe claimed as his invention the novel and useful combination of the eye-pointed needle and a shuttle in creating a lockstitch. Singer thus began looking for someone who had invented this unique combination of elements in the sewing machine.

Singer first attempted to uncover prior art in the patent offices in England, France, and, of course, the United States, and he even went so far as to argue that sewing machine had been invented in China long ago, but this was all to no avail. Singer’s efforts proved fruitless until he discovered Walter Hunt, a prolific American antebellum inventor. Hunt claimed to have invented a sewing machine that used an eye-pointed needle in combination with a shuttle carrying a second thread that produced a lockstitch, and that he had done this in 1834 — approximately ten years before Howe invented his own sewing machine! The problem was that Hunt had never commercialized his invention, nor had he applied for a patent for his discovery.

In 1853, Singer bankrolled Hunt in his efforts to rediscover his once-forgotten invention, and Hunt seemed to have hit pay dirt when he found some “rusty and broken pieces of metal” in an attic of the workshop at which Hunt worked in 1834. In 1853, Hunt had difficulty in recreating a working sewing machine from these nineteen-year-old remnants, but Singer provided Hunt with some legal and technical advisors, including William Whiting. As a lawyer recalled the scene years later in another patent suit, Whiting “was brought to bear upon the parts of the old carcass,” and, “after the lapse of many days, informed Mr. Hunt what he might have done, and Mr. Hunt ... agreed, and subsequently insisted, that that was just what he did do.” With Hunt’s rebuilt sewing machine as evidence corroborating his act of invention in 1834, Singer seemingly had within his grasp the prior art necessary to invalidate Howe’s 1846 patent.

In the fall of 1853, Hunt applied for a patent on his sewing machine invention, claiming an invention date of 1834. His patent application was not received well at the Scientific American, which leapt to Howe’s defense against what it saw as a pretender to the sewing machine throne. The magazine opened its October 1, 1853 article on the subject with this telling remark: “There never was a useful invention of any importance brought before the public to which there was not more than one who laid claim to be the inventor.” The magazine then republished Hunt’s lengthy advertisement in the New York Tribune from September 19, 1853, which declared, in part:

TO THE PUBLIC — I perceive that Elias Howe, Jr., is advertising himself as patentee of the Original Sewing Machine .... These statements I contradict ... Howe was not the original and first inventor of the machine on which he obtained his patent. He did not invent the need with the eye near the point. He was not the original inventor of the combination of the eye-pointed need and the shuttle, making the interlocked stitch with two threads, now in common use. .... I have taken measures ... to enforce my rights by applying for a patent for my original invention. ...

The Scientific American denounced Hunt’s belated patent application in no uncertain terms, saying that it was “opposed to such rusty claims,” and that “it has rather an ugly appearance to set up ten years’ prior claims to the lock stitch and eye-pointed needle.” It called for a quick legal resolution of this controversy “in order that the ear of the public may not be used as a kettle drum on which to beat the loudest tones for personal purposes.”

What followed was an extensive trial at the Patent Office to determine who had the legitimate claim to the patent on the lockstitch (this proceeding is called an “interference” in patent law terminology). The interference proceeding was reported to have involved “hundreds of pages of sworn testimony” proffered on behalf of Hunt’s claims to being the original inventor of the lockstitch produced from a combination of an eye-pointed needle and shuttle. At the end of this lengthy and complex trial, Patent Commissioner Charles Mason ruled on May 24, 1854 that Howe was entitled to his patent.

Interestingly, Mason acknowledged that Hunt had invented the elements of the sewing machine that later constituted Howe’s patented invention, but he concluded that Hunt committed laches (“sleeping on his rights”) in waiting eighteen years after his date of invention before filing his patent application. In patent law terminology, Commission Mason found that Hunt had “abandoned” his invention after 1834, and thus lost his right to receive a patent. Hunt’s abandonment was particularly salient given that another inventor, Howe, had brought the same invention public by patenting it in the interim.

In his decision, Commissioner Mason wrote: “When the first inventor allows his discovery to slumber for eighteen years, with no probability of its ever being brought into useful activity, and when it is only resurrected to supplant and strangle an invention which has been given to the public, and which has been made practically useful, all reasonable presumption should be in favor of the inventor who has been the means of conferring the real benefit upon the world.”

Hunt then appealed Mason’s decision to the Circuit Court of the District of Columbia, asserting a whole slew of legal issues, including even that Mason lacked statutory authority to decide an interference action on the basis of abandonment. In an extensive opinion analyzing all points of Hunt’s arguments, Circuit Judge Morsell soundly affirmed Commissioner Mason’s decision.

Hunt was technically correct that the patent statutes in force at that time did not specifically authorize Commissioner Mason to decide an interference action on grounds of abandonment. Judge Morsell’s opinion, however, followed long-established judicial practice in the antebellum era in construing the patent statutes broadly in favor of the property rights secured to patentees. For further discussion of how patents were broadly secured as property rights in the antebellum era, see my 2007 article, Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent “Privilege” in Historical Context.

Hunt’s loss in the interference action had an immediate impact in Howe’s ongoing legal contest with Singer. Howe quickly filed lawsuits in Boston against firms selling Singer Sewing Machines, and, as before, he sought preliminary injunctions. In his decision on Howe’s request for a preliminary injunction, Judge Sprague acknowledged the “earnestness and zeal with which the contestation has been carried on” in this case and in the many other legal actions. Following a lengthy review of the arguments against Howe, Judge Sprague ultimately concluded: “There is no evidence in this case, that leaves a shadow of doubt, that, for all the benefit conferred upon the public by the introduction of a sewing machine, the public are indebted to Mr. Howe.”

The defendants in the Boston litigation again argued that Hunt had anticipated Howe’s invention, despite Hunt’s earlier defeat in the interference action before Commissioner Mason. After carefully analyzing the evidence of the reconstruction of Hunt’s invention in 1853, Judge Sprague coolly remarked that “[p]rophecy after the event is easy prophecy.” Judge Sprague thus ruled Howe’s patent valid and infringed, and he issued a preliminary injunction. The Boston firms settled with Howe, who then promptly filed lawsuits directly against Singer in federal courts in New Jersey and New York, requesting injunctions.

At this point, the historical record is a bit muddled as to what happened next. One historian claims that I.M. Singer & Co. was ordered to pay Howe $15,000 in damages, but there is no extant court decision confirming this report and it is likely incorrect. In the nineteenth century, equity courts issued injunctions and law courts ruled on damages, and thus Howe would not have received a damages award in his petition before a court of equity for an injunction. (The separate equity and law courts in the federal judiciary were merged into a single court system with the enactment of the Federal Rules of Civil Procedure in 1938.)

Other historians have written that I.M. Singer & Co. settled with Howe on July 1, 1854, agreeing to pay Howe $15,000 to settle their dispute. This is probably what in fact happened. In addition to the $15,000 settlement, Singer further agreed to pay Howe a $25 royalty, consistent with Howe’s other license agreements, for each Singer Sewing Machine produced thereafter.

The end of the long-running legal dispute between Singer and Howe in 1854 did not mark the end of the Sewing Machine War. To the contrary, it lead to an explosion in patent litigation among all the sewing machine patent-owners. Thus, what followed was the descent of the Sewing Machine War into a full-scale patent thicket. I will discuss this part of the story in my next blog posting.

Elias Howe certainly played a key role in the Sewing Machine War in the 1850s. An article in the August 1867 edition of The Galaxy magazine reported that “the secret of Mr. Howe’s success” was that “he litigated himself into fortune and fame.” But the Sewing Machine War was not a story of a single aggressor, Elias Howe, pitted against the sewing machine manufacturing world. Howe certainly fired the first shots, and his litigation against I.M. Singer & Co. was the most lengthy and extensive, but he was not the only plaintiff. In fact, within a few short years after he filed his initial lawsuit against Singer, Howe found himself named as a defendant in the many lawsuits that were being filed by and against sewing machine patentees and manufacturers.

What is perhaps more surprising is the degree to which the Sewing Machine War exhibited many features of a patent thicket and ancillary policy concerns, such as “patent trolls” and the proliferation of satellite litigation. As I noted in my first post (Who Cares About the Invention of the Sewing Machine?), Howe was a non-practicing entity, i.e., a patent-owner who is not actively commercializing his own intellectual property. In modern parlance, Howe was a “patent troll.” Although the “troll” slur has proven exceedingly difficult to define with precision, an oft-cited feature is that the patent-owner makes money solely through royalties obtained through infringement litigation (or threats of litigation). If exacting royalties from manufacturers in the face of infringement lawsuits is a defining characteristic of a “patent troll,” then Howe certainly was a “patent troll” — pioneering these tactics well over one hundred years before this rhetorical epithet was even coined.

Shortly after his return from England in 1849, Howe inspected some of the new sewing machines that were now on sale and he concluded that they infringed his 1846 patent. Regardless of what other features these new sewing machines may have exhibited, they all used an eye-pointed needle in combination with a shuttle carrying a second thread to create a lockstitch. These were the three elements claimed in Howe’s 1846 patent. Since he was destitute, Howe required an investor to finance his patent infringement lawsuits, and he at last convinced George W. Bliss to invest in his litigation strategy (as well as purchase a one-half interest in Howe’s patent from a previous financial backer, George Fisher, who had not realized any return on his investment). At this point, as one historian puts it, Howe was ready to undertake what would be “his main preoccupation — indeed, his main occupation — for the next several years: namely, suing the infringers of his patent for royalties.”

The moment when Singer came within Howe’s sights was when Howe witnessed a demonstration of a Singer Sewing Machine — by none other than one of Singer’s sons — in a storefront window in New York City sometime in late 1850. Howe quickly contacted Singer, asserting that the Singer Sewing Machine infringed Howe’s 1846 patent. In the ensuing negotiations, Howe demanded a $2,000 royalty payment from I.M. Singer & Co., but the firm had not yet had any success in selling its new sewing machine and thus it did not have the monies to pay Howe. Singer’s characteristically hotheaded nature asserted itself, he argued with Howe, and then he “threatened to kick him down the steps of the machine shop.” The negotiations thus ended, and George Zieber later observed sardonically that “Mr. Howe lived to be thankful for the exhibition of Singer’s amiable disposition on that occasion.”

Howe returned in 1851 and again asserted his patent rights and demanded recompense from I.M. Singer & Co. This time Howe requested $25,000 for a license to settle the dispute. (This amounts to approximately $645,500 today.) Singer again demurred. Singer’s attorney, and new business partner, Edward Clark, wrote in an 1852 letter that “Howe is a perfect humbug. He knows quite well he never invented anything of value. We have sued him for saying that he is entitled to use of the combination of needle and shuttle . . .” It is unclear if I.M. Singer & Co. had in fact sued Howe at this point, but Clark would soon rue such sentiments.

(Edward Clark became a central figure in Singer’s company as a result of some business machinations by Singer in 1851. Given Singer's fractious nature, his dealings with his business partners reads like a plotline for a soap opera. After his invention of the sewing machine in the fall of 1850, Singer repeatedly terrorized his first two business partners, George Zieber and Orson Phelps, with his trademark temper. He ultimately cajoled them both out of the business in 1851, and he went so far as to take advantage of Zieber during Zieber’s convalescence from an illness. Compared to the monies Singer would eventually make on his sewing machine, Singer paid Zieber and Phelps a mere pittance for their share in the business. Singer then formed a formal business partnership with Edward Clark in 1851, who had been and continued to serve as the attorney representing I.M. Singer & Co. in its legal contest with Howe.)

With his newfound financial backing, Howe now made good on his threats, and he promptly sued I.M. Singer & Co. and several other sewing machine manufacturers for patent infringement. Howe’s suit against Lerow & Blodgett was the first that came to trial in late June 1852, and after three weeks, in which it was reported at the time that the “case was very closely contested,” Judge Sprague ruled in Howe’s favor on July 12, 1852. Howe quickly obtained preliminary injunctions against Singer and the remaining defendants.

For many sewing machine firms, this was too much to handle and they began to settle and accept Howe’s terms. On May 18, 1853, Howe granted his first license to Wheeler, Wilson & Co., and shortly thereafter other manufacturers caved and paid Howe for the use of his patent rights. On September 3, 1853, the New York Daily Tribune reported that Howe had granted licenses to five sewing machine firms; in addition to Wheeler, Wilson & Co., Howe had licensed Lerow and Blodgett, the American Magnetic Sewing Machine Co., Bartholf, Nichols & Bliss, and Woolridge, Keene & Moore. These sewing machine manufacturers were now paying Howe $25 for each sewing machine they produced.

By 1853, the last firm standing against Howe was I.M. Singer & Co., and their legal battle soon spilled out into the newspapers. On July 29, 1983, Howe published the following newspaper advertisement:

The Sewing Machine — It has been recently decided by the United States Court that Elias Howe, Jr., of No. 305 Broadway, was the originator of the Sewing Machines now extensively used. Call at his office and see forty of them in constant use upon cloth, leather, etc., and judge for yourselves as to their practicality. Also see a certified copy, from the records of the United States Court, of the injunction against Singer’s machine (so called) which is conclusive. ... You that want sewing machines, be cautious how you purchase them of others than him or those licensed under him, else the law will compel you to pay twice over.

On the same page of the newspaper in which Howe’s legal notice appeared, I.M. Singer & Co. published the following competing advertisement:

Sewing Machines — For the last two years Elias Howe, Jr., of Massachusetts, has been threatening suits and injunctions against all the world who make, use or sell Sewing Machines .... We have sold many machines — are selling them rapidly, and have good right to sell them. The public do not acknowledge Mr. Howe’s pretensions, and for the best reasons. 1. Machines made according to Howe’s patent are of no practical use. He tried several years without being able to introduce one. 2. It is notorious, especially in New-York, that Howe was not the original inventor of the machine combining the needle and shuttle, and that his claim to that is not valid ... Finally — We make and sell the best SEWING MACHINES ....

Howe responded to Singer’s advertisements by accusing Singer of committing libel. Howe published further advertisements, declaring: “CAUTION. ALL PERSONS ARE CAUTIONED against publishing the libelous advertisements of I.M. Singer & Co. against me as they will be prosecuted to the fullest extent of the law for such publications.”

Howe followed through with these threats, too, and he promptly filed suit against the New York Daily Tribune for publishing the alleged libel by Singer. Howe’s libel suit was too much even for the Scientific American, which was a solid supporter of Howe’s rights as the first American inventor of the sewing machine that produced a lockstitch. On August 20, 1853, the magazine opined: “We do not think that Mr. Howe is justified in suing the ‘Tribune’ for libel, but neither was it right for that paper to permit the advertisement of Singer, containing, as it did, such pointed and offensive language.”

The Scientific American also used this opportunity to condemn the state of patent litigation in the federal courts: “This case affords another illustration of the defectiveness of our United States Chancery Courts with their miserable old and complicated slow machinery. ... Among the many new inventions which are still wanting to benefit mankind, we recommend inventors to try their genius and skill in improving our United States Courts in patent trials.” This is a surprising complaint if only becaues it is almost identical to the complaints heard today about the state of modern patent litigation.

Throughout the ongoing contest between Howe and Singer, the other sewing machine manufacturers who had taken out licenses were now supporting Howe insofar as they had made substantial investments in ratifying Howe’s patent rights. This situation led one anonymous, albeit pro-Singer, correspondent to write in another newspaper:

All the other manufacturers had yielded to Howe . ... They viewed the contest between Howe and I.M. Singer & Co. much as the traditional frontiersman’s wife regarded a terrible struggle between her husband and a grizzly, merely remarking that ‘it didn’t make much odds to her which won, but she allus [sic] loved to see a right lively fight.

Singer’s infamous temper also raged against Howe and the firms that had settled with him; Zieber later described how Singer “raved to put his foot upon the neck of Howe.” Given the potentially large fortune at stake in the lawsuit, combined with a sense of personal indignation at being challenged as an inventor, neither Singer nor Howe budged from their respective aggressive litigation stances. Soon I.M. Singer & Co.’s profits and energies were almost entirely consumed with its legal battle with Howe.

UPDATE: This post ended up being too long, and so I've decided to break it up into two postings. Check out Part 2 for the rest of the story on Howe v. Singer.

Despite the Old World efforts at inventing a sewing machine (discussed in Part 1), it was a series of American inventors, working in the 1840s and 1850s, who succeeded in threading the needle in creating the first practical sewing machine. Confirming Alex de Tocqueville’s observation that “the Americans always display a clear, free, original, and inventive power of mind,” it was American tradesmen and machinists who recognized that a practical and successful sewing machine could not simply replicate the motion of human hands. With this pragmatic approach to innovation, antebellum Americans easily made the conceptual leap from hand-motion to machine-motion, and thus proceeded to invent (and re-invent) the necessary elements that constituted the first practical sewing machine.

Beginning in the early 1840s, several American inventors received patents on sewing machines or sewing machine components, including George H. Corliss (who later achieved fame with his invention of the Corliss steam engine), but these turned out to be of little significance. It was not until 1843 that Elias Howe, Jr. invented his version of the sewing machine, which was then followed by a series of independent inventions and follow-on improvement inventions that ultimately produced the first fully functional and successful sewing machine in 1850. Howe is also personally responsible for launching the Sewing Machine War a few years later, which is a fitting symmetry that secures for him a foundational role in sewing machine history.

Impoverished and suffering ill health for much of his life, Howe was working as an apprentice of little consequence in a machine shop in Boston in 1839 when he overheard an inventor and a businessman talking about how a sewing machine could not be made. As later recounted by Howe, the inventor asked, “‘Why don’t you make a sewing machine?’ ‘I wish I could,’ said the capitalist; “But it can’t be done.’” The “capitalist” then told the inventor that, if he could invent a sewing machine, “I’ll insure you an independent fortune.” Although having received no formal schooling in natural philosophy or mechanics (a common trait of most American inventors of the day), Howe was impressed by this remark and he began thinking of the problems entailed in creating a sewing machine.

In 1843, he began working on the invention in earnest, hoping to become as wealthy as the capitalist had promised. By the fall of that year, he at last invented a sewing machine, although it would take a few more years of tinkering to improve its performance and to confirm its functionality. A few years later, he filed for a patent, which issued on September 10, 1846, claiming the use of an eye-pointed needle in combination with a second thread carried by shuttle to create a lockstitch. The Scientific American promptly published the patent claims on September 26, 1846, under the heading “New Inventions.” Howe’s three elements formed the core of the Singer Sewing Machine that would eventually sweep the United States in the 1850s.

It is difficult to understand in the abstract how a sewing machine makes a lockstitch, especially if one has never operated a sewing machine. The Wikimedia Commons has an animated gif that shows how a lockstitch is made, click here. The diagram below also details step-by-step how a lockstitch is made with an eye-pointed needle and a shuttle carrying a second thread (just click to expand):

Howe’s sewing machine, of which the patent model “is acknowledged to be one of the most beautiful ever presented to the Patent Office,” was a feat of engineering.

It sewed 250 stitches per minute — seven times faster than sewing by hand. Yet firms and the buying public had been disappointed too often by earlier inventors claiming to have solved the sewing machine problem; thus Howe’s attempts at commercializing his invention were met with a resounding defeat by a skeptical business world and wary consumers.

They were not entirely wrongheaded in rejecting Howe’s sewing machine, as it did have some faults, some of which were described in a subsequent patent issued to John Bradshaw in 1848. For instance, Howe’s sewing machine used a vertical surface, which did not permit easy passage of the clothe past the curved eye-pointed needle. Also, the curved eye-pointed needle, which moved horizontally against a vertical surface, was brittle and often broke. Lastly, the mechanism for feeding the clothe through the vertical sewing machine, called a “baster plate,” made it impossible to either sew in a single continuous motion or to sew curved seams. Howe’s invention was pivotal in terms of his combination of three elements — an eye-pointed needle, a shuttle, and the creation of a lockstitch — but it was not yet a fully practical sewing machine. In October 1846, Howe set off for England to try to convince British tailors of the importance of his invention, and he would not return to the United States until 1849, having failed miserably in his efforts and even poorer than he was when he left.

During Howe’s sojourn in England, American inventors continued to apply themselves to the problem of creating a functional sewing machine. In 1849, John Bachelder began tinkering with another sewing machine that had been patented earlier that year by Charles Morey and Joseph B. Johnson. Bachelder obtained an improvement patent on Morey and Johnson’s invention, which claimed several additional elements of the successful sewing machine, including a horizontal table for holding the clothe, a vertical, reciprocating eye-pointed needle, and a more functional feeding mechanism for moving the clothe through the sewing machine. Bachelder did not manufacture his sewing machine; rather, he later sold his patent to Singer, who brought it into the Sewing Machine Combination in 1856. This patent, according to one report, “eventually became one of the most important patents to be contributed to the Sewing Machine Combination.”

Later in 1849, another inventor, Sherburne C. Blodgett, received a patent on a “rotary sewing machine,” which used a revolving shuttle in making the lockstitch. Unlike Howe and Bachelder, however, Blodgett joined forces with J.H. Lerow and began manufacturing the sewing machine, which soon came to be known as the “Lerow & Blodgett machine.” This sewing machine was ungainly, and, even worse, prone to failure. It was a Lerow & Blodget sewing machine on which Singer would experiment in making his own inventive contributions several years later, and one of Singer’s business partners, George Zeiber, complained about the low quality of the Lerow & Blodgett machine: “Of a hundred and twenty completed machines, only eight or nine worked well enough to use in the tailor’s workrooms,” and of those a fellow business partner “was constantly being called on to repair them.”

By 1850, the combined inventive work of Howe, Bachelder, and Blodgett reached a critical mass, which prompted two more inventors to put the finishing touches on the final complete invention of a fully practical sewing machine. The penultimate inventor was Allen B. Wilson, who, according to one article, “must be awarded the highest meed of praise as an inventor, and for the ingenuity displayed in constructing and improving the sewing-machine.” Wilson received a total of four patents on sewing machines, which issued between 1850 and 1854. Many of these patents were central to the innovation of sewing machines made for home use, which had to be lighter and easier to use than the industrial variants being invented in the 1840s and early 1850s.

Foreshadowing the Sewing Machine War that was right around the corner, Wilson also had the unfortunate distinction of being the first sewing machine patentee threatened with litigation for infringing another sewing machine patent. After Wilson invented a double-pointed shuttle in 1848, A.P. Kline and Edward Lee, the owners of the Bradshaw patent, threatened Wilson with a lawsuit for infringing their patent. Lacking the funds to defend himself, Wilson sold his patent rights in this invention to Kline and Lee to settle the dispute. In 1851, Wilson partnered with Nathaniel Wheeler, and the two formed the firm, Wheeler, Wilson & Company, which began manufacturing sewing machines on the basis of Wilson’s three subsequent patents. It also soon entered the fray in the Sewing Machine War, and would become one of the members of the Combination in 1856.

The American inventor who at last completed the development of the sewing machine was Isaac Merritt Singer. Singer was an irascible fellow who lived a very colorful life; he was a polygamist who married at least five women over his lifetime, lived at times under false names, fathered at least eighteen children out of wedlock, and whose violent temper often terrorized his family members, business partners and professional associates. Yet Singer was also a brilliant businessman with an innate sense of mechanics and a strong financial motivation. As he liked to quip, he was interested only in “the dimes, not the invention.”

It was perhaps this motivation that caused him to relent to the request of his two business partners, George B. Zieber and Orson C. Phelps, to try his hand at improving the Lerow & Blodgett machines that were constantly breaking down in Phelps’s Boston workshop. On September 18, 1850, Singer, Zieber and Phelps entered into a contract, which provided that Singer would “contribute his inventive genius towards arranging a complete machine,” that Zieber and Phelps would assist financially in the work, that Phelps would provide the sums necessary “to obtain a patent,” and that “said patent shall be the equal property of the three partners to this agreement, each owning one-third thereof.” Singer thus set to work on improving the sewing machine.

The breakthrough for Singer occurred approximately two weeks later. Singer later testified in one of the patent infringement lawsuits about his act of invention, which he claimed occurred after having “worked at it day and night, sleeping but three or four hours a day out of the twenty-four, and eating generally but once a day, as I knew I must make it for forty dollars, or not get it at all.” Among the various defects in the preceding sewing machines, including the curved eye-pointed needle that was brittle and easily breakable, the Lerow & Blodgett machine’s rotating shuttle also caused the thread to unravel, making the thread more prone to break as well.

Singer corrected these problems by replacing the curved needle with a straight needle that was positioned vertically rather than horizontally. He also replaced the rotating shuttle with a reciprocating shuttle. Unfortunately, at that point, the sewing machine would still not sew what Singer referred to as “tight stitches.” With the assistance of Zieber, he struggled with this last-remaining issue, and, in his words, then “it flashed upon me” what he needed to do to make the sewing machine work. (This is surprisingly similar rhetoric to that used by Morse in describing his own “flash of genius” in conceiving of the telegraph.) At this point, the problem was simply one of tension in the thread as it was fed by the spool to the eye-pointed needle. After fixing this last problem, he then produced “five stitches perfectly,” after which, he testified, he “took it to New York and employed Mr. Charles M. Keller to patent it.”

Singer’s sewing machine was invented in September 1850, and his patent ultimately issued on August 12, 1851. Singer never pretended that he invented the sewing machine ex nihilo, and his patent confirms this. His invention was an improvement on pre-existing sewing machines, such as the Lerow & Blodgett machine on which he worked in Phelps’s workshop.

Specifically, Singer claimed and described a sewing machine in which the clothe rested on a horizontal table underneath an overhanging arm containing a vertical, reciprocating, straight eye-pointed needle. The eye-pointed needle was synchronized with a reciprocating shuttle carrying a second thread to make a lockstitch in the clothe, which was held in place by a presser foot as it was stitched. A pedal provided continuous motion to the sewing machine through a series of drive belts, which now made it possible for a sewing machine operator to exert seamless control over the continuous movement of the clothe. Moreover, with the synchronization of the shuttle and needle, which produced the necessary tension in the thread for continuous sewing in straight and curved lines, the invention now contained all ten elements necessary for a practical and commercially successful sewing machine. The ultimate utility of Singer’s final improvements was irrefutable: A trained seamstress could sew by hand 40 stitches per minute, and whereas Howe’s machine could sew up to 250 stitches per minute, Singer’s machine could produce 900 stitches per minute.

In their contract governing the invention and patenting of their sewing machine, Singer, Zieber and Phelps had agreed to call it the “Jenny Lind Sewing Machine,” after a famous Swedish opera singer who had taken the country by storm in the mid-nineteenth century. After the sewing machine was invented, however, they identified it simply as the “Singer Sewing Machine.” They published their first newspaper advertisement on November 7, 1850, with a large headline in bold, capital letters, SEWING BY MACHINERY. Addressing their advertisement to “Journeyman Tailors, Sempstresses [sic], Employers, and all others interested in Sewing of any description,” they touted that the “Singer & Phelps’ Belay-stitch Sewing Machine, invented by Isaac M. Singer and manufactured by Singer & Phelps, no. 19 Harvard Place, Boston, Mass., is offered to the public as a perfect machine ....” They ballyhooed that “much labor and study has been expended upon it by the inventor,” and offered a one-year warranty that the machine would run “without repairs.” They further bragged in the lengthy eight-paragraph advertisement: “From 500 to 1500 stitches, according to the fabric operated upon, may be taken per minute.”

On the same day as this advertisement appeared in the newspaper, the Boston Daily Times reported on the invention of the Singer Sewing Machine. The Times observed that the “machine can be worked by any woman of common intelligence ... and is in fact, the prettiest, simplest and most effective result of mechanical skill that we ever saw.”

Given the difficulties with the previous sewing machines invented by Howe, Blodgett, and the many others that had come before them, such declarations were not hyperbole. The Singer Sewing Machine did indeed work as advertised.

Unfortunately for Singer, Howe had returned from England in April 1849, and he quickly discovered that the American public was swept up with a newfound interest in the labor-saving potential of sewing machines. As one historian writes: “Mechanics had read of his [Howe’s] device or seen it demonstrated, and had turned their hand to producing something similar. The Lerow and Blodgett machine which had been the basis for Singer’s improvements was one such piece of work.” In late 1850, Singer had not heard of Howe, but the casual chain of incremental innovation that linked Howe to Singer was very real. As a result, Howe would soon unleash a torrent of litigation against Singer and others that would ultimately culminate in the Sewing Machine War in the mid-1850s.

Today, the sewing machine would hardly be considered a complex invention. In our high-tech world in which pharmaceutical companies now design and construct therapeutic drugs from the protein up, or Apple Computer makes it possible to check email, update one’s calendar, surf the web, and talk on the phone all in one portable device (the iPhone), a sewing machine is downright mundane. This attitude is reinforced by the fact that few young people today have used or even seen a sewing machine, except perhaps in their grandparents' house or in a museum. Yet in the nineteenth century, the sewing machine was the equivalent of today’s new blockbuster drug or high-tech device.

Part of the problem in recognizing this basic truth about the sewing machine is that a cultural myth has arisen concerning its invention. Depending on whom you ask, you will hear that the sewing machine was invented by Elias Howe or Isaac Merritt Singer. Of course, both men played a central role in the invention and commercial development of the sewing machine in the late 1840s and early 1850s, but they were very much Johnny-come-latelies to the story. Their respective contributions brought the sewing machine to the apex of its invention as a practical and commercially viable product, which is perhaps why the public remembers only their names. The invention of the sewing machine, however, was not the creation of any single person, unlike many other antebellum-era inventions, such as Charles Goodyear’s invention of vulcanized rubber in 1839 or Samuel Morse’s self-described “flash of genius” in conceiving of the telegraph machine in 1832.

Given the basic human need for clothing, sewing has long been a skill valued by modern humans. Unfortunately, hand-sewing for long hours is extremely tedious and physically taxing, especially when clothing is demanded in mass quantities, as it was by the eighteenth and early nineteenth centuries. In Das Kapital, Karl Marx recounted the story of a milliner who literally worked herself to death as an illustration of the “vampire-like” nature of capitalists. In 1853, the New York Herald opined about the working conditions of seamstresses: “We know of no class of workwomen who are more poorly paid for their work or who suffer more privation and hardship.”

In antebellum America, Thomas Hood’s ditty, Song of the Shirt, was popular because it lamented the well-known working conditions of seamstresses:

With fingers weary and worn,
With eyelids heavy and red,
A woman sat, in unwomanly rags,
Plying her needle and thread,
Stitch! Stitch! Stitch!
In poverty, hunger and dirt;
And still with a voice of dolorous pitch —
Would that its tone could reach the rich! —
She sang this “Song of the Shirt!”

The hand-sewing trade and its workers would benefit tremendously from mechanization. As one historian remarked, “[l]ooked at in the abstract, in terms purely of ideas and markets, the sewing machine could not fail.”

Yet efforts to create a sewing machine for almost a century did repeatedly fail. The difficulties that plagued the invention of the sewing machine were essentially two-fold. One was mechanical, and the other was conceptual, but these two issues were interrelated.

With respect to the mechanical issue, the invention of a practical and commercially successful sewing machine comprised ten complementary elements. These ten elements were first explicitly identified by Andrew Jack in an oft-cited 1958 article: (1) the sewing of a lockstitch, (2) the use of an eye-pointed needle, (3) a shuttle carrying a second thread, (4) a continuous source of thread (spools), (5) a horizontal table, (6) an arm overhanging the table that contained a vertically positioned eye-pointed needle, (7) a continuous feed of the clothe (synchronized with the needle motion), (8) tension controls for the thread that give slack as needed, (9) a presser foot to hold the clothe in place with each stitch, and (10) the ability to sew in either straight or curved lines. The first sewing machine to incorporate all ten of these elements was the famous “Singer Sewing Machine,” which was first sold to the public in the fall of 1850. But Singer was neither the first person to invent all ten elements nor was he the first to patent them.

Many of these elements were invented and patented over the course of many decades, beginning in Europe in the mid-eighteenth century. Given the omnipresent need for clothing and the conditions of its production, it is perhaps unsurprising that the quest for a machine to do the work of hand-sewing began with the first steps of the Industrial Revolution.

In fact, there was a tremendous amount of inventive activity concerning the second element in Andrews’s list: the eye-pointed needle. This was first invented by a German mechanic, Charles F. Weisenthal, who obtained a British patent for it in 1755. Weisenthal, however, did not commercially develop his invention into a marketable product. In 1807, Edward Walter Chapman received another British patent for a banding machine that used an eye-pointed needle, but his patent was limited to only banding or belting, and thus he appears to not have seen the potential of a sewing machine in his invention. The eye-pointed needle appeared again around 1810, when Balthasar Krems, a hosiery maker in Mayen, Germany, began using this type of needle in a machine that produced a chainstitch. Unfortunately, he did not patent or commercialize his invention, and, according to one historian, the invention “died with the inventor in 1813.”

A year after Krems died, Josef Madersperger, a tailor in Vienna, Austria, invented a sewing machine for the purpose of producing embroidery. In 1839, Madersperger also invented a sewing machine that used an eye-pointed needle and a second thread to create a lockstitch (Bradshaw’s first element). Madersperger received Austrian patents for both inventions, but his machines were defective and impractical, as they lacked the other elements identified by Bradshaw, and thus they failed as commercial products. Madersperger died in penury in 1850.

Lastly, in 1841, two other British inventors, Edward Newton and Thomas Archbold, received a British patent for a tambouring machine that used an eye-pointed needle for stitching ornamental designs on gloves, but they neither intended nor used their machine and its eye-pointed needle for the general purpose of sewing.

The fundamental problem with these many independent inventions of the eye-pointed needle was primarily conceptual, not mechanical. The early efforts at using machines for sewing attempted to replicate the motions of the human hand in sewing fabric, i.e., driving a needle with a thread through a piece of fabric and then pulling the same needle back through to the other side of the fabric. In 1804, for instance, Thomas Stone and James Henderson received a French patent for a sewing machine that replicated hand-sewing motions by using mechanical pincers. Unsurprisingly, their machine was unsuccessful and saw only “some limited use.” As with the invention of the typewriter in the late nineteenth century, sewing-machine inventors needed to make a conceptual break between human-hand motion and mechanical motion.

This pivotal conceptual innovation was first made by a French tailor, Barthelemy Thimonnier. Thimonnier invented an industrial-size sewing machine in 1830 that contained many of Bradshaw’s ten elements of a successful sewing machine, such as a horizontal table and an overhanging arm containing a needle. In fact, Thimonnier is widely recognized as the first person to use a sewing machine for commercial profit; by 1841, he had eighty machines operating in his Paris shop stitching French army uniforms. But Thimonnier had an unfortunate birthright, and his shop was destroyed by a mob of French luddites. He later expressed “surprise[] ... at the amount of vilification his machine was attracting.” Unable to overcome the vociferous political and economic opposition to his invention, Thimonnier died poor without realizing any financial gain from his invention.

Two British inventors, John Fisher and James Gibbons, also made this important conceptual leap in 1844, but they saw their machine, which used an eye-pointed needle carrying one thread and a shuttle carrying another thread, as a way to produce only lace on fabric. As one historian observes, Fisher “readily admitted at a later date that he had not the slightest idea of producing a sewing machine, in the utilitarian meaning of the term.”

These Old World efforts at solving the problems in inventing the sewing machine proved fruitless. In Part 2, I will discuss how a series of antebellum American inventors succeeded in addressing both the mechanical and conceptual problems inherent in the invention of the sewing machine.

I first want to thank Eugene for inviting me to blog on the invention and commercialization of the sewing machine in the antebellum era. I’ve long been a consumer of the Volokh Conspiracy, and it’s quite exciting to experience it from the producer’s side. More important, I’m really looking forward to sharing my research and to receiving some valuable feedback. So, let’s jump in!

As someone who writes on topics in legal history, I often face the question: Who cares? I appreciate this question, as I’ve always believed it’s critical for an academic to connect abstract identifications to concrete reality. I will give an in-depth answer to that question at the end of my posts, after I have identified the facts of the invention and commercialization of the sewing machine that make it possible to infer lessons for the modern policy debates. For those readers who may not have a burning personal interest in the history as such, I hope this introductory posting will set enough of the modern policy context to keep you interested.

There is currently a raging debate in the patent literature about patent thickets. A “patent thicket” exists when too many patents covering individual elements of a commercial product are separately owned by different entities. This concept is not unique to patent law; it is based on Professor Michael Heller’s theory of the anticommons in real property, which arises when there is excessive fragmentation of ownership interests in a single parcel of land. According to economic theory, the problem of such excessive fragmentation of ownership interests is straightforward: It increases transaction costs, accentuates hold-out problems, and precipitates costly litigation, which prevents commercial development of the affected property.

The debate centers on whether patent thicket theory accurately explains or predicts such problems in practice, and the empirical studies produced thus far are arguably in equipoise. In speaking about anticommons theory, Professor Heller acknowledges that “the empirical studies that prove — or disprove — our theory remain inconclusive.” Nonetheless, in the patent literature and in the popular press, vivid anecdotes abound about patent thickets obstructing development of new drugs or preventing the distribution of life-enhancing genetically engineered foods to the developing world.

Given the heightened interest today amongst scholars and lawyers concerning the existence and policy significance of patent thickets, a historical analysis of the sewing machine patent thicket in the 1850s — called the “Sewing Machine War” at the time — and the denouement of this patent thicket in the Sewing Machine Combination of 1856 is important.

On one hand, it is an empirical case study of a patent thicket that (temporarily) prevented the commercial development of an important product of the Industrial Revolution. The sewing machine was the result of numerous incremental and complementary inventive contributions, which led to a morass of patent infringement litigation given overlapping patent claims to the final commercial product. The Sewing Machine War thus confirms that patent thickets exist, and that they can lead to what Professor Heller has identified as the tragedy of the anticommons.

On the other hand, the story of the sewing machine challenges some underlying assumptions in the current discourse about patent thickets. One assumption is that patent thickets are primarily a modern problem having to do with recent changes in technology and law. Professor Heller explicitly makes this point in his recently published book, The Gridlock Economy:

There has been an unnoticed revolution in how we create wealth. In the old economy — ten or twenty years ago — you invented a product and got a patent .... Today, the leading edge of wealth creation requires assembly. From drugs to telecom, software to semiconductors, anything high tech demands assembly of innumerable patents.

In fact, Professor Heller’s first foray into patent thicket theory was in assessing an anticommons in “biomedical research,” which he and his co-author, Professor Rebecca Eisenberg, saw as a logical result of extensive patenting of biotech research tools. Despite Heller’s and other scholars’ off-hand references to earlier patent thickets, the principal focus of the theoretical and empirical studies of patent thickets is on very recent inventions in high-tech and science — computers, telecommunications, and biotech.

A second assumption is that patent thickets are a property problem — too much property that is too easily acquired that results in too much control — and so they are best addressed by limiting the property rights secured to patentees. Specific proposals have called for eliminating contractual rights in patented drugs, authorizing federal agencies to terminate patent rights to avoid patent thickets, and even prohibiting the patenting biotech inventions altogether. Although the empirics have yet to confirm patent thicket theory, this has not stopped people from proposing numerous regulatory or statutory measures to redefine and limit property rights in patents.

The story of the invention and development of the sewing machine challenges these two assumptions insofar as it is a story of a patent thicket in an old technology. More important, it is a story of the successful resolution of a thicket through a private-ordering mechanism: a contractual arrangement in which patent-owners cross-license the right to use their respective patents. This cross-licensing contractual arrangement is called a “patent pool,” and it so happens that the first patent pool in United States history was the one that brought the Sewing Machine War to an end: the Sewing Machine Combination of 1856. In fact, the Sewing Machine Combination successfully coordinated the overlapping property claims in the sewing machine until the last patent in the pool expired in 1877.

As I researched the Sewing Machine War, I further discovered that this particular patent thicket is an important case study because it encompasses many other issues in patent law that are often intertwined today with concerns about patent thickets. For instance, there was massive and costly litigation between multiple parties in multiple venues. One of the patentees in the Sewing Machine War engaged in an extremely costly search for evidence of prior inventions (what patent lawyers call “prior art”) that would invalidate the other sewing machine patents. There was hard-fought and expensive satellite litigation in the courts and in the patent office. In other words, the Sewing Machine War reflected all of the concerns expressed today about an alleged explosion in out-of-control patent litigation, and yet one finds the same conditions existing in the patent system more than one hundred years ago.

Last, but certainly not least, I also discovered that the Sewing Machine War was precipitated by patent infringement lawsuits filed by Elias Howe, who was America’s first “non-practicing entity” (NPE). As an aside, commentators and judges sometimes call a NPE a “patent troll.” Interestingly, the term “patent troll” has proven extremely difficult to define with precision, and perhaps one of the lessons of the Sewing Machine War is that it is an unhelpful rhetorical epithet.

Elias Howe was a NPE, because he commercially exploited his patent by licensing sewing machine manufacturers. He also obtained injunctions against those who refused to pay him royalties, and given that Howe’s 1846 patents was valid, he obtained many of these injunctions. This is interesting, because patent scholars, as well as some Supreme Court Justices, believe that “patent trolls” arose only recently and that they are undermining the proper functioning of the patent system. Such scholars and Justices may be surprised to learn how these so-called modern problems have long existed within the historically successful American patent system.

The Sewing Machine War came to an end with the voluntary formation of the Sewing Machine Combination. In this respect, the Sewing Machine Combination reveals how patent-owners have substantial incentives to overcome patent thickets, even in contexts in which so-called “patent trolls” are exploiting the strong enforcement of the property rights in patents. The Combination was formed though pre-existing private-ordering mechanisms, such as contract and corporate law, and not through judicial decisions, PTO regulations, or statutes that limited or restricted the patent-owners’ property rights. In sum, the Sewing Machine Combination reveals the innovative ways in which patent-owners can rescue themselves from commercial gridlock, and in so doing, unleash an explosion in productivity and innovation.

In my next posting, I will discuss the invention of the sewing machine, which was an effort that took place over a hundred years (approximately from the mid-1700s to the mid-1800s). The result of this lengthy inventive process was that the sewing machine — a tremendous technological accomplishment — was developed through incremental inventive steps. By the early 1850s, the inventive contributions by so many different people over so many years resulted in a product in which there were many differing (and legitimate) property claims. This set the stage for the Sewing Machine War, and thus to understand how this thicket arose, it is necessary to identify its first cause. I will discuss this part of the story in my next blog posting.

(If anyone is interested in seeing the sources for the quotes and other factual claims in my posts, please feel free to download my paper, A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket, where you can see the sources in all their glory. As everyone who reads law journal articles knows by now, law professors love citations so much, we put them on almost every sentence, phrase and word. :) )