Mossoff in WSJ Re: The Sewing Machine War
Current competing claims on smartphone technology are reminiscent of the Sewing Machine War of the 19th century, says Professor Adam Mossoff.
In a Wall Street Journal article, Mossoff explains how the sewing machine became "the first complex consumer product that arose through incremental inventions" and went on to spawn the first example of what is now referred to as a "patent thicket."
In 1850 Isaac Meritt Singer merged ten different inventions to creat the first commercially successful sewing machine. The holders of competing patents responded by filing a web of lawsuits that came to be known as the "Sewing Machine War" and which then prevented Singer from selling his invention. The standoff ended when a lawyer proposed what Mossoff calls "a groundbreaking but breathtakingly simple" solution—a combination of the various patents into a "patent pool" in which the patent holders would share profits from sales of the sewing machine.
Mossoff points out that the smartphone is not yet caught in a patent thicket and is not likely to be, given that lawsuits may function as an invitation to negotiate for amicable licensing agreements .
"What the patent system is about is not what's happening today or yesterday," he says,"but what's going to happen tomorrow."
What Smartphone Makers Can Learn From the Sewing Machine Patent War, The Wall Street Journal, October 28, 2010.By David Zax.
"Mossoff takes several lessons from this historical example. First, he notes that despite the litigation, the smartphone market isn’t caught in a patent thicket yet, with production and marketing held up indefinitely as happened with the sewing machine. There are, of course, thousands of smartphones for sale, and new ones being developed.
"Second, even if it gets to that point, it wouldn’t necessarily be cause for alarm. 'If our intuition says, "The sky is falling," we can say, "OK, but did the sky fall in the 1850s?”' Though anti-trust legislation today would likely render a smartphone patent pool an impossibility, the fact remains that lawsuits are often no more than an invitation to negotiation. 'Oftentimes the way a party signals to another party in one’s industry, "I’m serious about this–you need to speak with me," is by filing a lawsuit,' says Mossoff.
"And most companies do reach amicable licensing agreements where they use one another’s technology for a fee. 'The average cell phone has thousands of patents owned by entities that have licenses with each other,' says Mossoff. Earlier this month, for instance, Microsoft licensed patents by Palm, Palmsource, Bell Communications Research, and Geoworks.
"So while the maze of patent lawsuits might seem like wasteful litigation, Mossoff cautions that the opposite might very well be true. Those who defend the patent system and intellectual property rights argue that it encourages innovation by ensuring that inventors get their due."