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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.

Tracy Johnson (www):
Does this mean the sewing machine depicted in "Fiddler on the Roof" could have been an illegal device from a stolen patent?
4.27.2009 12:33pm
DDG:
Now that is interesting work from a patent law professor. It's actual scholarship with practical application. Most patent law professors appear to be worse than useless, but maybe we have someone worth reading. I'll be reading this article closely when I have some free time.
4.27.2009 12:54pm
Sean M.:
Has the paper been placed? I'm looking forward to seeing Prof. Mossoff's posts this week.
4.27.2009 1:05pm
jviss (mail):
Awesome! I am eager to read the paper and follow this. While I'm not an attorney, I'm an engineer and U.S. inventor, and have served on the corporate intellectual property committees of two large corporations.

One thing, 'though, that troubles me, is the assertion that Howe was a "non-practicing entity" or "patent troll." It is my understanding of history that he did, indeed reduce his invention to practice, and manufactured it in Bridgeport, CT. Perhaps this was after the patent fight? I'd like to know.

Thanks,

jv
4.27.2009 2:37pm
Adam Mossoff (mail):
It's great to read some of the preliminary responses to Professor Volokh's introduction, and I just hope that everyone feels just as positive and passionate about my paper after I've discussed it in a few posts.

To give some quick responses:

Sean M.: I have not yet placed the paper yet, as I'm still doing my research and writing. Thus, I'll be very interested in reading the feedback and in engaging the VC readers on the historical and policy issues.

Jviss: Actually, Elias Howe initially licensed his brother, Amasa Howe, to manufature sewing machines under Howe's patent. Amasa manufactured and sold sewing machines as "Howe Sewing Machines." Throughout the Sewing Machine War and for many of the early years of the Sewing Machine Combination, Elias Howe was a non-practicing entity who earned his money solely through licensing. However, in the mid-1860s, in the last few years of his 7-year-extended patent term, Elias Howe did try his hand at manufacturing, but this was long after he had made his millions in royalty payments. (He and Amasa even got into an interesting trademark fight over the use of the Howe name.) Howe was principally a non-practicing entity; in fact, a contemporaneous account identified Howe as having litigated his way to fortune and fame. I'll be talking about these and other details soon.

Best regards,

Adam Mossoff
4.27.2009 2:49pm
Harry Eagar (mail):
There's an excellent history of sewing machines, including a discussion of the patent pool, in David Hounshell's 'From the American System to Mass Production, 1800-1932,' so I am surprised to be told there is a debate about whether patent thickets existed.
4.27.2009 2:53pm
Paul Hsieh (mail) (www):
Excellent! I've heard Prof. Mossoff lecture before on property rights to general audiences and he's an excellent and clear speaker.

I look forward to reading his blog posts here.
4.27.2009 3:16pm
Fub:
Adam Mossoff wrote at 4.27.2009 2:49pm:
... Throughout the Sewing Machine War and for many of the early years of the Sewing Machine Combination, Elias Howe was a non-practicing entity who earned his money solely through licensing. However, in the mid-1860s, in the last few years of his 7-year-extended patent term, Elias Howe did try his hand at manufacturing, but this was long after he had made his millions in royalty payments. ...
I found your post enlightening, and I expect the paper in waiting to be even moreso. But I'm not sure how you have defined "patent troll".

If a patent troll is a patent holder who does not practice the patent by manufacturing and selling devices, but who merely markets patent license to manufacturers, then there are far more patent trolls than I previously thought.

I always naively assumed (IANA patent attorney) that the requirement for practicing (or reducing a patent to practice) was met by merely producing a working model.

Additionally, I personally know inventors who have been granted utility patent on devices or processes, produced and submitted working model to patent examiners, but could not market the device as a retail product due to manufacturing and marketing startup costs. The inventor then sold license to manufacturers who could and did profitably produce marketable devices. But the inventor and patent holder never manufactured and sold the devices. That just doesn't strike me as patent trolling, at least in the news reports I've see about actual patent trolls over the years.

There are many innocent reasons that a patent hold would not produce and sell the actual patented devices. Among them are inability to raise the capital to build a factory. If a patent troll is anyone who doesn't build a factory, then lots of actual inventors are patent trolls.

Clarifying the definition of "patent troll" would be very helpful to those of us who are not patent attorneys.
4.27.2009 4:01pm
jviss (mail):
From Wikipedia:



Patent troll is a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic, often with no intention to manufacture or market the patented invention.

Related, less pejorative expressions are non-practicing entity (NPE),[1] non-manufacturing patentee,[2][3] patent marketer,[2][4] and patent dealer,[4] which describe a patent owner who does not manufacture or use the patented invention.[1]


4.27.2009 4:36pm
DDG:
Fub,

1. A patentee need not create a working model of the invention or otherwise create a working example of the invention (what patent attorneys call "actual reduction to practice"). The only statutory requirement is that the patent application filed enables the practice of the invention ("constructive reduction to practice). Alexander Graham Bell's telephone patent was not actually reduced to practice until some time after he filed his application, for example. (The Telephone Cases is a fascinating read).

2. The more neutral term for "patent troll" is "nonpracticing entity", as jviss noted. Troll is a term for NPEs that others dislike. It's difficult in practice to draw coherent distinctions between "good" NPEs (like Universities) and "bad" NPEs.
4.27.2009 5:04pm
Fub:
DDG wrote at 4.27.2009 5:04pm:
1. A patentee need not create a working model ... The only statutory requirement is that the patent application filed enables the practice of the invention ("constructive reduction to practice). ...
Thanks. My knowledge of patent law is far less than half vast.
2. The more neutral term for "patent troll" is "nonpracticing entity", as jviss noted. Troll is a term for NPEs that others dislike. It's difficult in practice to draw coherent distinctions between "good" NPEs (like Universities) and "bad" NPEs.
That's the distinction I was looking for. I think that, historically, being a "good" NPE was one incentive to invent something: invent a device, market the license to manufacturers, and collect royalties. That seems on its face an honest line of work.

Recent years have brought the terms "patent troll" and "submarine patent", which entities appear inherently dishonest (even if legally acceptable) in the way they operate.

Although it may be difficult to draw the distinction, I'd hope that some distinguishing features could be defined, beyond what NPEs "others dislike". But doing so is beyond my pay grade.
4.27.2009 6:24pm
jviss (mail):
Mr. Mossof,

Where should suggestions and critiques on the paper be sent or posted? Here? Or this there an email address?

Regards,

jv
4.27.2009 10:49pm
DDG:
Fub,

A submarine patent is something different and frequently was a true abuse of the system. Until about 10 years ago, US patents had a term of 17 from the date of issue regardless of how long the patent was in the Patent Office. Patent prosecution was secret until the patent issued. This frequently created an incentive to extend the time the patent was in the process of prosecution. Certain entities (Jerome Lemelson is the primary example) specialized in filing rather vague patent applications, keeping them in prosecution for many years while a technology matured, and then causing the patents to issue with claims that read on the now mature technology. The patents seemed to appear out of nowhere to the people in relevant fields -- hence the submarine moniker.

Sometimes prosecutions could be very long for legitimate reasons -- interferences, appeals, etc. -- but many times it was simply to game the system. Patents are now 20 years from the date of filing (more or less; there are exceptions), and there are very few old applications still hanging around.
4.27.2009 11:37pm
jviss (mail):

Patents are now 20 years from the date of filing (more or less; there are exceptions), and there are very few old applications still hanging around.


I may be rusty here, but I thought one important distinction of US patent law from most of the the rest of the world was that ours was based on date of invention, not date of filing. Is this no longer so?
4.27.2009 11:42pm
PatentWoman:
jviss: In the US, date of invention matters for purposes of deciding who gets the patent when multiple overlapping applications are filed. (By contrast, in the rest of the world, the first person to file a patent application wins.)

The term of a patent in the US ends 20 years from the earliest filing date the application claims to be entitled to.
4.28.2009 12:17am
Antares79:

I may be rusty here, but I thought one important distinction of US patent law from most of the the rest of the world was that ours was based on date of invention, not date of filing. Is this no longer so?


The date of invention is special in the United States, but not for determining the 20-year patent term patent term. That term is tied exclusively to the application filing date (with patent term extension looking at the issue date, but that is another provision entirely.)

The date of invention is used uniquely in the US for establishing dates that prior art must antedate in order to render invalid a patent on the invention. In most foriegn jurisdictions, it is only the patent application filing date that determines the content of the prior art. (Note that US patent law does key some prior art determinations to the filing date under 35 USC 102(b).)
4.28.2009 12:20am
Patent Lawyer:
Fub-

One other major complaint about patent trolls is that they're neither manufacturers nor inventors. The worst kind act as patent holding companies, buying up patents from legitimate inventors to extort businesses providing good products to consumers. At least, that's the defense lawyer story :)

The more pleasant spin on this is that patent holding companies act as middlemen to provide small inventors with some value for their patent, which they would never be able to enforce on their own given the cost of patent litigation. Pick your preferred story.
4.28.2009 10:10am
David M. Nieporent (www):
Although it may be difficult to draw the distinction, I'd hope that some distinguishing features could be defined, beyond what NPEs "others dislike". But doing so is beyond my pay grade.
There are many reasons one might not manufacture/market the invention oneself, such as lack of capital; there's nothing wrong in that situation with licensing the patent to someone else so that they can use it to manufacture/market the invention. I would think that what makes an entity a patent troll is that one has no intention of producing the item, that one simply waits until others produce things and then try to extract royalties out of them.
4.28.2009 10:17am
DDG:
David,

That still doesn't cut it. Universities are classic NPE's who have no intention of the marketing an invention. They exist solely to license and create a revenue stream. In the pharmaceutical world, for example, universities sometimes develop and patent fundamental inventions. They never develop products. It's hard question.
4.28.2009 11:19am
Voice:
"Non-Practicing Entities" actively attempt to license out their inventions.

"Patent Trolls" wait for someone else to *also* invent what their patent covers, and then attempts to either *stop* them from producing the invention, or *force* them to license the patent (or both) through law suits.
4.30.2009 4:30pm

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