Posted by Adam Mossoff, guest-blogging:
Patent Thickets, Bad Patents, and Costly Patent Litigation:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241494415
Some might conclude that [1]�patent trolls� (as discussed in my
previous post) 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 (for an example, see [2]here), including having read
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 [3]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
[4]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.
References
1. http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241494164
2. http://ssrn.com/abstract=892062
3. http://ssrn.com/abstract=892062
4.
http://www.amazon.com/Democratization-Invention-Copyrights-Development-1790-1920/dp/052181135X/ref=sr_1_1?ie=UTF8&s=books&qid=1241547435&sr=8-1
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