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[Adam Mossoff, guest-blogging, May 1, 2009 at 12:04am] Trackbacks
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.

iffylee:
Part of what makes a blog post appealing is its brevity.
5.1.2009 6:51am
jviss (mail):
Agreed. Before I read the first comment, I decided to post a comment that this blog post, and the preceding ones in this series, are way too long! I read the paper. Anyone who wants the background content can go read the paper.

Second, I still reject the "troll" epithet in Howe's case. It strikes me as a bit of sensationalism to apply that tag to him. Howe, after all, did indeed invent the things he did from a genuine interest in inventing a sewing machine. He wasn't a technically disinterested predator waiting to spring a trap on unsuspecting entrepreneurs after they had invested heavily in bringing products to market.
5.1.2009 9:02am
Curt Fischer:
Yeah, yeah, what the other guys said. Brevity is the sole of wit and all that.

Dr. Mosoff, any chance in your final posts you will be tying your studies of the sewing machine to proposed patent reforms today? Is the bill currently working its way through Congress responsive to the patent system's recent problems, or do your studies suggest that these "problems" aren't all that new and that trying to fix them now could lead to greater problems in the future?
5.1.2009 9:31am
Adam Mossoff (mail):
Your points are well taken, as I've struggled a bit with how to best break up the paper into blog posts.

For those who've read the paper, you'll see that I already broke up the paper sections into multiple parts for the blog posts. But, since I'm new at this blogging thing, your comments have made me realize that I wasn't breaking them up enough.

At first, I wanted to keep the entire story of Howe v. Singer together in one post. But that did end up being way too long, and so I've broken it up into two postings (parts 1 and 2).

The third posting on the Sewing Machine War will be shorter relative to the Howe v. Singer postings.

Lastly, in response to Mr. Fischer, the answer is "yes," as my paper has a whole concluding section in which I talk about the implications of this story. I'll be posting that, and possibly adding some new content for the blog postings.
5.1.2009 9:55am
Aultimer:
I also think "troll" is unfairly applied where the patent-owner make real efforts (although without success) to commercialize the invention. He's no Katz or Lemelson.

FWIW, I don't mind the longish posts. If you're young enough to think or write "tl;dr" it's your attention span that's the problem.
5.1.2009 9:58am
jviss (mail):

FWIW, I don't mind the longish posts. If you're young enough to think or write "tl;dr" it's your attention span that's the problem.

No, it's not my attention span. When I want to read a paper or a book, I read a paper or a book (online or otherwise). A blog entry is not supposed to be either one; at least that's my expectation when I come here. I expect a pithy topic introduction and a question or opinion, with links to the source material (new article, book, paper, other blog).

p.s. I had to look up "tl;dr."
5.1.2009 12:01pm
Adam Mossoff (mail):
I like that people are talking in the comments about whether "patent troll" is a valid concept, as people really engaged each other on this issue in response to my first blog post.

If the concept of a "patent troll" has any validity, then it has to have a definitive set of characteristics that identify consistently this phenomenon in the real-world. When one keeps coming across instances of the concept in which one keeps saying, "oh, this isn't it, because of X," such as, Howe seems like a good guy who tried to commercialize his patent, but X is a common characteristic of how the term is being used elsewhere, such as with universities, then one can take one of two approaches.

First, one can integrate the new situation and redefine the concept so that it continues to have a consistent application across all types of patent-owners -- including universities, inventor-owned holding companies, large corporations that use patents for purely defensive purposes in litigation, etc., etc. But one has to make sure the new definition is internally consistent, because otherwise one just ends up using the concept in the normative equivalent of a "whack-a-mole" game: It's a protean phrase that shifts meaning and import from person to person. This then leads us to the second response.

Second, one can recognize that the concept is truly meaningless, i.e., it's a mere rhetorical epithet that has no content beyond its negative normative content. In other words, it's just another way for one to identify patent-owners that one considers "bad" or "wrong." But then the new concept is not doing any real cognitive work other than serving as a duplicative emotive expression which does nothing more than merely express one's disapproval.

The fact of the matter is that Howe has many of the characteristics of what people today call patent trolls, including many of the modern "patent holding companies." So, the appropriate response is not to hold onto the concept and just keep explaining away contradictory data. That's just prioritizing one's concepts in favor of the facts of the world, but the whole point of our using conceptual categories is to help us integrate and deal with the world, not make it irrelevant. So, I think we could learn something here from the scientists , who ideally induce theories from facts and, when applying Bacon's method properly, when one sees a contradictory data, one needs to check one's premises and reassess whether the concept one is right or not.

I'm not done yet with my historical postings from which I can draw some inferences. In fact, I've preempted my final postings a bit here, but I just wanted to engage the "patent troll" debate a bit and give some more substantive teasers about what's coming up.
5.1.2009 1:25pm
Ken Arromdee:
Adam: Definitions often don't work that way in real life. One of the classic examples, for instance, is trying to define "chair"--you'll find that your definition probably won't include beanbag chairs, chairs in museums, etc. and you'll end up with a definition that's full of clauses to include special cases and still fails when someone asks you if a chair in a dollhouse is really a chair.

So the fact that you can find edge cases that don't seem to match people's definition of "patent troll" may be interesting in a discussion of how we use language, but doesn't have much point in a discussion of patents.
5.1.2009 1:58pm

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