Sewing-Machine-Blogging from Prof. Adam Mossoff This Week:
I'm delighted to report that Prof. Adam Mossoff (George Mason University School of Law) will be guest-blogging this week about sewing machines. You might think that an odd topic for this blog, but I much enjoyed reading Prof. Mossoff's article about the history of sewing machines, the patent law fracas that erupted over them in the mid-1800s (A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket), and the possible implications of this history for the current debate about what patent law should do about "patent thickets." I think many of you would likewise be interested both in Prof. Mossoff's piece and in the commentary that he'll provide in his posts this week. Here's a summary of the article:
The invention of the sewing machine in the antebellum era was an achievement on par with the latest high-tech or pharmaceutical discovery today. This paper presents the first comprehensive empirical study by a legal scholar of the invention, patenting and commercialization of the sewing machine in the nineteenth century.
In so doing, it challenges many assumptions by courts and scholars today about the alleged efficiency-choking complexities of the modern patent system, revealing that complementary inventions, extensive patent litigation, so-called "patent trolls," patent thickets, and privately formed patent pools have long been features of the American patent system reaching back to the antebellum era. This is particularly significant with respect to patent thickets, as there is a vigorous debate on whether patent thickets exist. The sewing machine patent thicket -- called the "Sewing Machine War" -- confirms that patent thickets are not just a theoretical construct. But the Sewing Machine War also reveals how patent-owners have strong incentives to resolve patent thickets.
In this case, it led to the first patent pool in American history -- the Sewing Machine Combination. Even more important, this innovative contractual solution to the first patent thicket occurred at a time when patent-owners received strong legal protection of their property rights (injunctions), including even injunctions issued on behalf of Elias Howe, who was a "non-practicing entity" or "patent troll." The Sewing Machine Combination ultimately spurred further commercial innovation that was essential to the success of the Industrial Revolution in the United States. Thus, the story of the invention of the sewing machine is a striking account of early American technological, commercial and legal ingenuity, which heralds important empirical lessons for understanding how the successful American patent system has weathered patent thickets and related problems.
This is one of a series of articles by Prof. Mossoff on the intellectual history of intellectual property, and in particular of patent law. His previous articles have discussed matters such as the historical protection of patents under the Takings Clause and the correlation between the legal realists' theory of property in land and modern patent theory. I much look forward to Prof. Mossoff's posts.
Who Cares About 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. :) )
The Incremental Invention of the Sewing Machine (Part 1 of 2):
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.
The Incremental Invention of the Sewing Machine (Part 2 of 2)
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.
The Sewing Machine War -- Howe v. Singer (Part 1 of 2):
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.
The Sewing Machine War -- Howe v. Singer (Part 2 of 2):
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.
The Sewing Machine War -- The First American Patent Thicket:
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.
The Sewing Machine Combination -- The First American Patent Pool:
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 Sewing Machine Combination -- A Fountainhead of Innovation:
In this last of the purely historical posts, I'll discuss the success of the Sewing Machine Combination, not just in ending the Sewing Machine War but also in serving as a fountainhead for further innovation by its members.
Altough the Sewing Machine Combination was repeatedly attacked in court and in the popular press as a "grinding, pitiless monopoly" that engaged in "oppressive conduct," it served a vital commercial function beyond simply resolving the Sewing Machine War. Even more important, it freed the sewing machine manufacturers to get down to the business of making and selling sewing machines. This was especially true with respect to Singer, who found motivation for his business acumen in "the dimes, not the invention." Thus, he and his business partner, Edward Clark, were able to use the legal and commercial freedom secured to them by the Combination to create and to profit from several innovative marketing and business strategies.
First, Singer recognized very early on that the success of the sewing machine was predicated on his convincing the public that his new sewing machine was not merely a repeat of the past failures of prior inventors. He thus pioneered mass marketing and advertising; in essence, he was the nineteenth-century equivalent of Billy Mays and the "as seen on TV" approach to advertising. One historian has noted that, at that time, Singer's mass marketing techniques represented an entirely "new concept of selling." This entailed a concerted and sustained marketing campaign directed to bringing his sewing machine to the public's attention and to convincing them of its practical virtues. He traveled the country, giving free demonstrations at fairs, carnivals, and in rented halls. In addition to these free demonstrations, he performed renditions of Thomas Hood's Song of the Shirt, reminding his audiences of the toils from which seamstresses would be freed by his new invention.
But Singer also recognized that he had to do more than just sell the public on the practicality of his sewing machine, he also had to address the prejudice that women were incapable of working machinery, or, if they could, that it was improper and unwomanly for them to do so. Driven by his own pursuit of fortune, and thus setting aside his own personal bigotry, Singer hired women to demonstrate his sewing machine, as well as teach other women how to use it. One of I.M. Singer & Co.'s first employees was Augusta Eliza Brown, who was hired in 1852 for solely these purposes.
Demonstrations of the sewing machine by Ms. Eliza and other women not only disproved the widespread belief that women could not work machines, they also played an important role in Singer's new concept of splashy, eye-catching marketing. In 1852, Edward Clark wrote to a company agent that "we have got possession of a front window under our office [in Boston] at the moderate rent of one thousand dollars a year, and a nice little girl is operating a machine in it, to the great entertainment of the crowd."
In addition to his innovative marketing campaign, Singer and Clark also pioneered novel business practices to increase the company's sales and profits. A significant barrier to the widespread adoption and use of the Singer Sewing Machine was its price: It cost $125, which may not seem like much today, but in the 1850s, the average American family earned less than $500 per year. In response to this problem, Clark invented a new business method for selling their sewing machines: the installment-purchase program. The company's newspaper, the I.M. Singer & Co. Gazette, explained the purpose of Clark's rent-to-own sales program:
Why not rent a sewing machine to the housewife and apply the rental fee to the purchase price of the machine? Her husband cannot accuse her of running him into debt since he is merely hiring or renting the machine and under no obligation to buy. Yet at the end of the period of the lease, he will own a sewing machine for the money.
This was the first such installment-purchase program in American history, and it was a brilliant solution to the price problem in selling Singer Sewing Machines. In combination with Singer's novel marketing schemes, this program should have had a tremendous impact on I.M. Singer & Co.'s bottom line. It did indeed have an impact, tripling the sales of Singer Sewing Machines from 1855 to 1856, but such successes were tempered by the massive expenses imposed on the company by the now-raging Sewing Machine War. Sales of Singer Sewing Machines were dismal from 1853 to 1855, which, in comparison to the explosion in its sales following the formation of the Sewing Machine Combination in 1856, is perhaps a result of the uncertainty surrounding the Singer Sewing Machine caused by the legal dispute between Singer and Howe, and then the start of the full-scale Sewing Machine War in 1854.
Following Potter's creation of the Sewing Machine Combination in November 1856, Singer and Clark's innovative efforts at commercializing their patented invention began to realize their full potential. In fact, the year after the Combination was created, Clark invented another new business method to further secure I.M. Singer & Co.'s place in the soon-to-be exploding sewing machine market: he conceived of a trade-in plan in which I.M. Singer & Co. would accept any older version of a Singer Sewing Machine, or any competitor's sewing machine, in exchange for a $50 credit toward a new Singer Sewing Machine. Again, this was a brilliant marketing stratagem, as it killed two birds with one stone for I.M. Singer & Co. First, it reduced the price of a new sewing machine, increasing overnight the number of purchasing consumers (and revealing an implicit understanding of elasticity of demand on the part of Clark). Second, it effectively prevented the rise of a second-hand market for used sewing machines that would compete with sales of new sewing machines.
Singer and Clark's innovation in both creating a sewing machine market and then securing I.M. Singer & Co.'s place as a dominant firm within this new market is a palpable example of the commercialization benefits secured by property rights in patented inventions. With the end of the Sewing Machine War and the formation of the Sewing Machine Combination in 1856, I.M. Singer & Co. immediately began reaping the fruits of its labors. Despite the severe economic recession of 1857, the members of the Combination flourished, including I.M. Singer & Co., whose sales almost doubled from 1857 to 1858. And, despite the tremendous economic and political tumult of the Civil War, sewing machine manufacturers continued to experience tremendous sales growth, helped in part by the fact that their machines were clothing Union soldiers. During the war, I.M. Singer & Co., which was renamed the Singer Manufacturing Company in 1863 (see the postscript below for an explanation of this), watched its sales grow each year from 16,000 machines in 1860 to 23,632 in 1864.
As a result of its constant focus on innovation, made possible by its patented inventions and its participation in the Sewing Machine Combination, the Singer Manufacturing Co. eventually overtook Wheeler, Wilson & Co. in 1867 as the top-selling sewing machine firm. By 1876, the Sewing Machine Combination's records reveal that the Singer Manufacturing Co. sold more than double the number of sewing machines than that of its closest competition. When the Sewing Machine Combination terminated in 1877, the Singer Manufacturing Co.'s sales accounted for more than half of the total sales of sewing machines, and the company controlled 75% of the world market for sewing machines. In sum, Singer and Clark's commercial innovation, made possible by Singer's patented improvements to the sewing machine, not only ensured the success of Singer Manufacturing Co., it was largely responsible for the success of the American sewing machine industry writ large. By all accounts, Singer's company was the most successful sewing machine company, and it justifiably served as the public face of the Sewing Machine Combination.
In my next couple posts, I will discuss some of the policy insights we may draw from this historical case study of the incremental invention of the sewing machine, the first patent thicket, the first "patent troll," and the first patent pool. In so doing, I'll also discuss and respond to some of the issues raised by commentators over the past week.
POSTSCRIPT: Some readers may be wondering about the 1863 name change of I.M. Singer & Co., to the Singer Manufacturing Co. This was a result of Singer's characteristic intemperate nature — and his polygamy. After forming their business partnership in 1851, Clark and Singer worked very well together until 1860, when a public scandal erupted after one of Singer's wives, Mary Sponsler, discovered Singer with one of his other wives, Mary McGonigal, in the middle of Fifth Avenue in New York City. Following this confrontation, Singer nearly choked Mary Sponsler to death, and he then fled to Europe for a brief respite from the public uproar. He eventually returned in 1863 to marry another woman, Isabella Boyer. Clark was of high birth and he could not abide by such behavior. Following Singer's return in 1863, they formally dissolved the I.M. Singer & Co. partnership. Clark then incorporated the Singer Manufacturing Company, with Clark in control of the company and its assets and Singer receiving guaranteed income from his ownership of 40% of the stock.
Patent Thickets, Incremental Invention, and Innovation:
The story of the sewing machine is an important empirical case study of how the American patent system has long dealt with incremental invention and resulting patent thickets. It's also a self-contained case study, which challenges the principal focus of the literature on recent inventions and recent changes in patent law, such as the rise of biotech patenting since the early 1980s. Given the cutting-edge nature of biotech research and its equally innovative commercialization, this new field presents a moving empirical target for patent scholars and economists. This perhaps explains why recently published studies on patent thickets, at best, have found none, or, at worst, have been inconclusive.
As a single case study, it cannot serve as the basis for drawing definitive conclusions, as more empirical studies will have to be done. The Sewing Machine War, however, does point toward some important lessons for the modern policy debates over patent thickets. One lesson is that the incremental invention of complementary elements of new technology seems to be a common feature of the type of cutting-edge discoveries that the patent system has promoted for more than two hundred years. From the sewing machine to automobiles to airplanes to radios, incremental innovation seems to be omnipresent in the historical evolution of science and technology.
There was even incremental innovation in the invention of the incandescent light bulb, which, contrary to popular myth, was not discovered by Thomas Edison. Just as Isaac Singer invented only the final few elements of a practical and successful sewing machine, Edison invented only the first practical incandescent light bulb. (Of course, both of these were tremendous achievements, and thus this is not meant to denigrate their inventive contributions.) In fact, Edison was even sued for patent infringement by one of the earlier inventors of the light bulb. Unlike Singer's hapless luck with Walter Hunt, however, Edison was able to invalidate this earlier patent under one of the statutory requirements for a valid patent grant. Yet, decades later, the inventive cycle repeated itself again, as Edison was again embroiled in controversy, but this time it was with Nikola Tesla, who successfully patented and commercialized follow-on innovation to Edison's own cutting-edge work in electrical power systems.
Professor Michael Heller and other scholars have given passing acknowledgements to a few of these historical examples of incremental innovation and resulting patent thickets. As I noted in my introductory post, much of the chapter on patents in Heller's The Gridlock Economy is spent discussing alleged patent thickets in biotech. In fact, the only historical patent thicket to which Heller devotes anything more than a sentence or two is the airplane patent thicket of the early twentieth century. Coincidentally, this was also the only patent thicket that was solved through a public-ordering solution — a compulsory patent pool imposed on the patent-owners by federal legislation. In fact, Heller devotes more time to discussing this legislatively coerced solution to the airplane patent thicket than to the nature of the patent thicket itself. Again, the underlying assumption is that patent thickets are a property problem to which a public-ordering regulatory model is the best solution.
As commentators have pointed out in prior posts, especially in my first introductory posting (Who Cares About the Invention of the Sewing Machine?), there are important differences between the nineteenth century and our modern digital age. The computer revolution was spawned by the invention of the integrated circuit in 1958 by Jack Kilby and Robert Noyce, and innovation in computer technology and related fields, such as biotech, has grown exponentially. This is technological growth that surely outpaces anything humanity has seen before. This is undeniable.
But there are perhaps just as many myths about the significance of these differences as there are truths. For instance, one commentator claimed that a significant difference in the inventive activity between today and the nineteenth century is that hobbyists can work on computers in their garages today but that inventive work in the nineteenth century required massive capital expenditures. Yet Elias Howe and many other inventors in the nineteenth century, such as Charles Goodyear, Samuel Morse, Samuel Colt, and Eli Whitney, to name just a few, were what we would now call "hobbyists" — people without formal training or full-time employment in the field of technology in which they hit inventive pay dirt.
One could still argue that, compared with the potential success of a new computer technology, nineteenth-century industrial technology required massive upfront investment outlays — what economists call "sunk costs." This is certainly true with respect to railroads, steamboat fleets and, later in the nineteenth century, steel mills and industrial factories. But the investment dollars were there to be had for those with new ideas.
Charles Goodyear, for instance, toiled for years after his invention of vulcanized rubber in 1839 to convince American firms of the value of his invention. Goodyear's troubles were the same as those that affected Howe — both inventors faced skeptical investors and commercial firms who had already lost boatloads of money on prior inventors who had claimed to have solved the technological problem. In fact, the nascent rubber industry experienced in the 1820s and 1830s a bubble that was equivalent to our own "dot com" bubble at the turn of the last century. Hundreds of thousands of dollars in investments went up in smoke when products made from pure rubber lost their cohesion in hot weather or became brittle in cold weather. Goodyear's invention of vulcanized rubber solved these problems, but it was difficult for him to convince firms and the buying public after so many failures — and such spectacular financial wipeouts. Goodyear struggled, but, more important, he succeeded.
The sheer number of patents and the increased amount of inventive activity in the twenty-first century is another important difference between today and the nineteenth century. For instance, some have pointed out that Sewing Machine War was a manageable thicket insofar as it was resolved through an agreement between only four entities: I.M. Singer & Co., Grover & Baker, Wheeler, Wilson & Co., and Howe. Today, a patent thicket may comprise thousands of patents, which are owned by individuals or corporations spread throughout the globe.
Yet the same technology that makes inventive activity and patenting more common also reduces the transaction costs in finding information and in coordinating commercial behavior. Word processing programs, email, and web-based searchable databases, such as at the U.S. Patent Office and Google, make it possible to research patents, communicate across the globe, and to reach deals quickly and efficiently in ways that Singer and Howe could have only dreamed about one-hundred-and-fifty years ago. Today, one can search every U.S. patent with a single click of a mouse, send email with proposed licenses as attachments, or FedEx a cease and desist letter in a fraction of the time it took in the nineteenth century. In the mid-nineteenth century, travel between Boston and New York City took a couple days, at best, by horseback (the most efficient method of travel over land). And, even after the telegraph was up and running by the mid-nineteenth country, it facilitated only minimal communication (via the dots and dashes of Morse Code). It is very hard for us today to imagine trying to search patents, negotiate licenses, litigate numerous lawsuits, or operate national commercial enterprises under such conditions — as the sewing machine patentees all had to do in the Sewing Machine War!
In sum, we must beware of anachronisms when we assess technological advances, commercial activities, and legal interactions in a bygone era that lacked, not just the problems of our technology, but also its benefits.
To be clear, it bears emphasizing the empirical merits of the Sewing Machine War and its related features, such as Elias Howe's role as a non-practicing entity in this patent thicket. This is admittedly a single patent thicket involving a single commercial product. I would be committing the logical fallacy of a hasty generalization to draw definitive generalizations from this single data point. At a minimum, though, this case study serves as a cautionary tale against the assumptions that dominate the current discourse concerning patent thickets and closely related policy concerns, such as the impact of incremental innovation and the so-called complicating features of modern inventions. To wit, these are not modern phenomena that are necessarily best resolved with distinctly modern regulatory measures that restrict the property rights secured to patentees. They have long been features of the American patent system, which has long dealt with incremental invention and resulting patent thickets.
In my next post, I'll discuss the issue of "patent trolls" and patent litigation, and whether these have proven to be insurmountable problems to the resolution of patent thickets, past and present.
UPDATE: Some minor spelling errors were corrected.
Patent Thickets and Patent Trolls:
One of the features of the Sewing Machine War that makes it appeal to our modern sensibilities is that it is the first patent thicket in American history in which a non-practicing entity — the inimitable "patent troll" — played a fundamental role at each important point in the story.
With respect to the role of "patent trolls" in patent thickets, and in patent litigation generally, the parallels between Howe and modern non-practicing entities are palpable. An oft-cited example of a "patent troll" at work was the recent Blackberry litigation. In this case, the patent-holding company, NTP, Inc., successfully sued Research in Motion Ltd. (RIM), the manufacturer of the Blackberry, for infringing NTP's patents on wireless email communication. NTP was a non-practicing entity who was not actively commercializing its technology; its sole source of revenue was the royalties it was seeking from RIM. As such, many commentators believe that NTP is an exemplar of a modern "patent troll," since it was a non-practicing entity that used an injunction to compel RIM to pay for a license. In fact, in the "patent troll" debates, NTP is the most commonly cited example of a "patent troll." Thus it seems that NTP is one of the few examples, if not the only one, to which this term best applies (or at least applies without generating tremendous controversy).
If NTP was a "patent troll," then Howe certainly was a "patent troll" — a non-practicing entity using injunctions to compel licenses from actual manufacturers of the completed commercial product. As I noted in an earlier post, some commentators don't believe that it is legitimate to call Howe a patent troll, because he tried to commercialize his invention, or, as some put it, he was acting in "good faith." But if attempts to commercialize one's patented invention prevents one from being deemed a "patent troll," then NTP is not a patent troll either. NTP also tried to commercialize its technology, something it repeatedly pointed out in its court filings in its litigation against RIM. In fact, similar to Howe, NTP failed to find a firm willing to invest in its technology, and, similar to Howe, NTP belatedly discovered RIM's Blackberry several years later and initially demanded a license from RIM. As in Howe's lawsuit against Singer, NTP sought and successfully obtained an injunction against RIM only after RIM rejected NTP's request to enter into a license. Moreover, just as in Howe v. Singer, RIM tried to invalidate NTP's patents in separate hearings at the Patent Office (called "reexamination proceedings"). The correlation between Howe v. Singer and NTP v. RIM is strikingly robust.
In sum, if Howe is not a patent troll, then NTP is not one either, and thus we're left with an epithet that refers to few, if any, actual patent-owners in the real world. One problem is that a "patent troll" is often defined simply as a non-practicing entity that has no intent on manufacturing a product. But the problem with this definition is that it includes universities that license technologies created by their professors. Yet, among those who use the term "patent troll," no one seems to consider universities to be bad actors deserving of this epithet. Universities, like Howe, seem to be imbued with that aura of "good faith" that makes the "patent troll" epithet seem inappropriate.
If one then (re)defines a "patent troll" as an entity that did not invent the patented invention, but rather bought it from the actual inventor for the sole purposes of licensing it, then this just creates other problems for using this term. As a preliminary matter, it would now exclude NTP, which was a corporation solely owned by the inventor. In fact, many individual inventors incorporate themselves, and then transfer their patents to these newly formed holding companies, for liability and tax purposes. Moreover, this new definition would now include many corporations, such as IBM, which collect patents, not for manufacturing purposes, but to use them as a shield against patent infringement lawsuits. (Coincidentally, two commentators to my prior post on incremental invention mentioned IBM's practice of hoarding patents.) In sum, IBM, which has long been one of the largest owners of patents in the country, uses patents defensively. Its policy has been one of "mutually assured destruction," i.e., if someone threatens to sue it for patent infringement, then it promises that it can find a patent in its massive patent portfolio with which to countersue for infringement. This policy has worked marvelously well for IBM, which has mostly avoided patent infringement lawsuits and has been left free to devote its time, energy and money to developing new products and services that it offers in the marketplace. But IBM's policy of hoarding patents is certainly "patent troll"-like behavior — patents are being used solely for litigation purposes and not for development of actual products sold in the marketplace.
Another commentator mentioned that Jerome Lemelson was a patent troll, but this is mixing two different concepts in patent law — a "patent troll" and a "submarine patent." Lemelson exploited procedural loopholes in the regulations governing how patent applications are processed at the Patent & Trademark Office. Traditionally, patent applications were kept secret until the patent issued. The result of Lemelson's procedural machinations was that he was able to keep his patent applications secret for decades, while firms invested hundreds of millions of dollars in technology that they believed was in the public domain. Lemelson then let his patents issue, and he sued the companies for patent infringement. Many of the firms settled, but some fought back. Ultimately, the courts dealt Lemelson (or, more precisely, the company formed after his death) a blow when they used the doctrine of laches to prohibit his enforcement of his patents. Moreover, Congress changed the law on patent applications in 1999, and now patent applications are publicly disclosed 18 months from the date of filing.
So, the problem with Lemelson was not that he was a patent troll, but that he was using submarine patents — patents that were kept secret and then surfaced to sink established companies with the threat of litigation — to game the system in his favor. Courts and Congress have now closed the legal loopholes that made Lemelson capable of using submarine patents. Moreover, Lemelson was the inventor of all of his patents, and thus he would fail the other feature of a "patent troll" — the patent-holding company is not the inventor.
In sum, the problem is that the term "patent troll" is so amorphous and protean in its usage that it's effectively meaningless in conveying anything other than the fact that the person using the phrase thinks some practice in patet law is bad. But if this is the case, then one should precisely identify the practice that one thinks is improper, rather than use this epithet. The term "patent troll" is ambiguous and indeterminate, as its referents constantly change and nothing is constant except for its negative normative connatation. In this respect, the term "patent troll" is tantamount to what the logical positivists, such as A.J. Ayer, thought of all normative terms; in essence, the logical positivists believed that to call something "bad" was the cognitive equivalent of an emotional ejaculation, such as yelling, "Boo for that!" (Conversely, Ayer explained that to call something "good" was cognitively the same as yelling, "Yah for that!")
It seems as if the term "patent troll" confirms the logical positivsts' assessment of normative terms. It becomes impossible to respond to it, because whenever one thinks one has it nailed down in its meaning, it changes its referents to accommodate some other bad practice or to differentiate some practice people think is good for the patent system. The result is a game of normative whack-a-mole, and a vague general feeling that property-owners can act badly. But that's just a tautology, as the freedom provided by property rights permits people to act badly or properly, such as an annoying neighbor who uses property disputes (trespass, nuisance, etc.) as a proxy for his own personal grudges.
This point about landowners acting badly thus highlights the one feature of the "patent troll" debate that is noticeably absent — an actual sense of how bad "patent trolls" are and whether it's been empirically established that they now trump the benefits derived from the patent system generally. This is important, because most critics of "patent troll" behavior (whatever this might be) are calling for systemic changes to the patent system, whether it is changes to remedy doctrine, licensing rules, validity determinations, or all three. So, as Hamlet put it, here's the rub: Do we really want to make systemic and structural changes to the entire patent system based on an amorphous and ill-defined rhetorical epithet? Even assuming that "patent trolls" are an actual problem, are these calls for patent reform comparable to calling for systemic changes to our real estate system given the ability of some troll-like landowners to exploit trespass, nuisance and other doctrines so that they can harass their neighbors? Without definitive empirics to help us understand the scope of the problem — and the empirics will be almost impossible to come by as long as it remains virtually impossible to define the "patent troll" term with any precision — this is a dangerous game that we are playing with the system that is responsible for promoting and securing property rights in innovation.
In contrast to the widely accepted picture of difficult property-owners who hold out against all entreaties, requiring some type of public-ordering response from Congress, the courts or the Patent and Trademark Office, the Sewing Machine Combination confirms that voluntary patent pools are not just theoretically possible, but have occurred in the real world. There was no Patent Reform Act of 1856 that prompted the formation of the Sewing Machine Combination by eliminating Howe's ability to get injunctions, limiting his royalty payments, or imposing restraints on his or other patentees' commercialization rights. (At the time, such measures may have been deemed to have constituted an unconstitutional taking of the sewing machine patentees' property under the Fifth Amendment. For further elaboration, see here.)
The Sewing Machine Combination was initiated by private actors for their private benefit — within the governing rules of a property system that provided strong property protections to the relevant entitlement owners. For this reason, the Sewing Machine War and its resolution in the Sewing Machine Combination is an important empirical case study that teaches important lessons for understanding the theory of how non-practicing entities function within patent thickets.
In my next post, I will discuss the concerns expressed in the patent literature and in many comments to my prior posts about the allegedly unique problems with patent litigation today, such as the difficulties in determining what is a patented invention for computers. Alas, nineteenth-century case law is replete with similar complaints, which perhaps suggests that the old adage — all things old are new again — is actually true.
Patent Thickets, Bad Patents, and Costly Patent Litigation:
Some might conclude that "patent trolls" are a more serious problem today because of larger problems in patent litigation generally. We often hear reports of an explosion in patent litigation, problems with determining whether patents are valid, problems with determinig patent boundaries, and commercial products being held hostage to the threat of infringement litigation. Such complaints are particularly loud in the computer industry, as supported by academic commentators.
Here, we must be especially cautious in assuming that modern problems are necessarily different from those experienced in yesteryear. Of course, it goes without saying that there are differences between the 1850s and today; in fact, there are differences between 1995 and today. There are always differences between two distinct points in time. So it's important to always figure out if these are differences without a distinction, and, even more important, if there are any similarities.
In this respect, recall that many facets of the Sewing Machine War reflected many of the purportedly new problems with patent litigation today, such as massive and costly litigation and the threat of injunctions. And it's not just cases from the Sewing Machine War that reflected these and other so-called modern concerns. As someone who has been immersed in historical patent jurisprudence for much of his academic career, including having read, among other things, all patent decisions in the Federal Cases reporter (approximately 1,460), I often hear today the echoes of long-forgotten patent disputes.
In 1862, for instance, a judge expressed his frustration at inventors being "frightened off the course by threats of ruinous litigation," and that in the particular case before him, the "astute counsel and experts have been employed to surround this machine or invention ... with a fog of nebulous rhetoric, and to make this concrete machine appear a transcendental abstraction ...."
In 1855, in the midst of the Sewing Machine War, a judge instructed a jury in a patent trial unrelated to the swirling disputes over the sewing machine:
For the maintenance of his right [an inventor] is subjected to legal controversies, which, not infrequently involve him in an expenditure beyond the amount of his profits. Inventors and discoverers are proverbially poor. It is said that the man, by the operations of whose genius the streets of the city of London were first lighted, was a wanderer and a beggar in the streets.
In 1877, another judge complained in a patent decision that "litigation in regard to patents has been found so expensive and so wearisome to the courts." Such problems arose from how each "contest involves an immense sum in value, and where the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount of them on either side and yet this class of cases is one in which there is value to be attached to experts." He further noted that it "is a sad thing to say that perhaps no class of cases coming before the courts have as much fraud, perjury, and wicked conduct, as patent cases. ... there is a large amount of false swearing and corruption in them."
If anyone has a tendency to commit the anachronism of thinking that the inventions of yesteryear were simple compared to today, they need look no further than an 1855 decision from Justice Grier, riding circuit, in which he observed:
It is no reflection on juries or trial by jury to say that many disputes about the originality and infringement of patents depending upon complex mathematical calculations, upon a knowledge of the principles of chemical science, and of mechanical philosophy, cannot be satisfactorily decided by the verdict of twelve men, a majority, if not all of whom, have no knowledge or experience on the subjects they are called to decide on.
And, in 1841, Justice Story, one of the principal architects of American patent law, observed how "Patents and copyrights approach nearer than any other class of cases ... to what may be called the metaphysics of law, where the distinctions are, or at least may be very subtle and refined, and sometimes, almost evanescent."
These are just a few of the many long-forgotten patent cases I have uncovered in my research (some of which I discuss in a previously published article) and which warn against several anachronisms in patent law today. These nineteenth-century complaints remind us that the inherent technical and legal problems in assessing complex innovation — such as distinguishing between different complementary contributions to a commercial product, determining imprecise contours of a patented invention, and litigating a case in a court system that moves at a plodding pace — are long-standing features of the American patent system.
The American patent system, as economist B. Zorina Khan has explained, was tremendously successful in the nineteenth century — as compared to older and more established patent systems in England, Germany, and France. As Professor Khan has shown, the American patent system excelled precisely because it did what none of these other patent systems would do: It secured inventions as property rights within an institutional framework governed by the rule of law.
It was within this framework that the first American patent thicket arose from the incremental invention of the sewing machine. It was this framework that also provided for the resolution of this patent thicket by the sewing machine patentees — exercising their rights of use and disposition in their property by contracting to their mutual benefit.
In my next (and final) post on the sewing machine patent thicket, I will raise an issue that is not yet discussed in my paper — antitrust. The impact of antitrust doctrine on how patent-owners contract with other patent-owners may create significant variances between the nineteenth century and today on how patent-owners may resolve patent thickets. I am still researching the relationship between patent pools and antitrust, and so I am especially keen on receiving feedback from the readers of this series.
Patent Thickets, Patent Pools and Antitrust:
This is my final blog posting, and I'd like to briefly raise an issue with the readers of this series about a complex policy and legal issue: antitrust and its impact on patent pools.
Among all the differences between the nineteenth century and the modern age that have been identified and discussed by VC commentators and others over the past week, this is perhaps one of the most consequential. Interestingly, it's a difference in law, not in science or technology. Yet this may have the biggest impact on patent thickets, because it makes its private-ordering solution that much harder to form.
As I discussed in my posting about the Sewing Machine Combination, this patent pool and commercial trust was attacked in the popular press as a "grinding, pitiless monopoly." In the Sewing Machine Combination's patent infringement lawsuits, defendants repeated such arguments, such as calling its litigation war chest an act of "oppressive conduct." Such arguments, however, fell on deaf ears in the courts. In one 1862 case, for instance, a federal court rejected this claim, asking rhetorically, "why they might not make a common fund for the purpose of protecting their common rights by prosecuting those they thought had infringed them, I am at a loss to conceive."
After the enactment of the Sherman Antitrust Act in 1890, this was no longer a rhetorical question for a court to ask, as the federal government embarked on a campaign of "trust busting" (to use Teddy Roosevelt's famous term).
I am not an antitrust expert, and so I am very much hoping for some substantial feedback from the VC readers. It's my understanding that, for much of its history, antitrust law prohibited patent pools as anticompetitive -- they were deemed to be a form of collusion for the purpose of squelching competition. In more recent years, this hard line against patent pools has softened a bit, as the federal government now applies a "rule of reason" analysis to determine if patent pools are pro- or anti-competitive. This requires the courts to engage in a market-specific, context-sensitive, patent-specific analysis of the nature of the pool and its function, asking such questions as whether the patents in the pool are complementary or substitutes for each other, whether prices will rise or fall, whether the pool will facilitate a product coming to market or not, etc.
Now, I think there is a legitimate philosophical question to ask about whether such concepts are even valid, but that is beyond the scope of both my paper and this blog posting. Here, my inquiry is pretty limited in scope.
Antitrust scholars acknowledge that rule-of-reason analysis is "indeterminate," which means that it is next to impossible for the firms to predict ex ante whether their actions will run afoul of the antitrust laws or not. So, here's my question: How does this indeterminacy impact the use of patent pools to resolve paten thickets? If so, does this make patent thickets more or less problematic today? In other words, is one of the reasons for the problem of patent thickets today exogenous to the patent system -- is antitrust mucking up the workings of the patent system here?
I don't know the answers to these questions yet, but it seems commonsensical that antitrust would be relevant to the patent thicket problem. The question would seem to be how much and in what way. I'm really interested in hearing from people who know more about antitrust than I do -- I'm currently researching it as part of my writing project on patent thickets -- and so any ideas, suggestions, pointers, cases, etc. would be greatly appreciated.
With that said, I'm now signing off from my guest-blogging stint here at The Volokh Conspiracy. I wanted to thank Eugene again for inviting me to do this. I had a lot of fun, and I hope you (the readers) did, too. I know that my final paper will be far improved as a result of this experience. In fact, I really enjoyed my engagements with the commentators, who are to be commended for their thoughtful and substantive remarks. The comments stayed on track and did not get sidetracked, and for that, thank you.