Mossoff: Smartphone Wars May Mimic Sewing Machine Wars

Smartphone patent wars between rival manufacturers could go the way of the sewing machine wars of the 1850s, says Professor Adam Mossoff.

"The sewing machine wars ended not by new legislation in Congress, not by new regulation or by the courts," Mossoff says in an article appearing in Bloomberg. "It was brought to an end by the patent owners themselves. In 1856, they realized engaging in litigation was not in their best interest."

Some inventions on sewing machines predated Elias Howe's concept of the lock stitch. A free-for-all broke out when sewing machine manufacturer Isaac Singer threatened Howe with violence after Howe accused him of patent violations. Howe sued, and the battle spread to every manufacturer who could lay claim to an unique feature of the machine.

"As he began to win the lawsuits, the other manufacturers realized they could do the same thing and could get royalty agreements,"Mossoff explains. The result, Mossoff says, was a situation that "burst into a full-scale war by 1853. Having four entities that owned the relevant patents was enough to creat a mass of patent litigation."

Representatives of the companies were put in a room on the eve of the trial, Mossoff said. They decided to create what became the first patent pool in U.S. history, where anyone, for a fee, could obtain access to all patents neessary to build a sewing machine.

Apple Phone Patent War Like Sewing Machine Minus Violence, Bloomberg, October 8, 2012. By Susan Decker. 

The smartphone war including Samsung Electronics Co. (005930) and other rivals is the latest dispute over innovations that have transformed society since the Constitution established U.S. patent rights. Inventions of the telephone, the airplane and electric-power delivery all set off years-long clashes that featured larger-than-life characters, created fortunes, and altered the course of markets.

“'When the founding fathers set it up, I don’t think they were looking to foment litigation, but the inevitable outcome of a patent right is to keep other people from infringing,' said Jesse Jenner, a partner at Ropes & Gray LLC in New York.

"The number of patents is soaring. Of more than 8.3 million U.S. patents since 1792, more than a quarter were issued after 2000."

Read Mossoff's article The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s on SSRN