Mossoff on Patent Wars

Recent legal skirmishes in the smartphone war have added fuel to the fire raging in the public policy debates about the patent system, with many claiming that there has been an unprecedented “patent litigation explosion” and that the “patent system is broken,” says Professor Adam Mossoff.

Writing in Slate, Mossoff maintains that these allegations are mostly "the byproduct of inflammatory rhetoric and unscientific and unreliable studies."

"In fact, the smartphone war is anything but unprecedented. Our patent system has long, and effectively, promoted innovation—and legal battles, sometimes substantial legal 'wars,' have always occurred along the way," Mossoff says, citing the sewing machine wars of the 1850s as the first of many examples of patent-related legal struggles.

The Sewing Machine Patent Wars, Slate, December 3, 2013. By Adam Mossoff.

There are many more similarities between the sewing machine war and the smartphone war than can be described in a short essay (you can read more in my 2011 law review article on the subject), but it’s important to recognize that the sewing machine war was not an anomaly. It ended in 1856 when the patent-owners created the very first patent pool—a new and innovative patent licensing company at that time. Patent pools are still used to this day for technological inventions covered by many overlapping patents, such as digital video (MPEG), wireless ID technology (RFID), and, of course, the telecommunications technology owned by the Rockstar consortium (a licensing company backed by Microsoft, Sony, Nokia, Blackberry, Apple, and Ericsson). Patent wars, and their resolution via patent pools or other commercial arrangements, have been commonplace with each technological leap forward. There were patent wars over the incandescent light bulb, electrical distribution systems, telephone, automobile, airplane, radio, laser, medical stents, and others—even disposable diapers in the 1980s.

"By these historical standards, the smartphone war isn’t even much of a patent war, at least not yet. The total number of patent lawsuits over smartphone technology amount to several hundred lawsuits, at most. In 2011, an estimated 100 patent lawsuits were filed in the smartphone industry. But the telephone war at the end of the 19th century comprised 587 patent lawsuits filed just by Alexander Graham Bell’s company over the span of a couple of decades. Over the same period, more than 600 lawsuits were filed in the patent war over the incandescent light bulb, involving Thomas Edison and many others. One historian has found thousands of patent lawsuits filed annually against consumers, retailers, and manufacturers throughout the 19th century."

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