The numerous lawsuits comprising the sewing machine war occurred in many different states, in different court houses, and among many different individuals and companies as well. While not the global legal conflict that the smartphone war is today, we must remember that this was a time before telephones, typewriters, and other modern marvels of communication, and travel was still predominantly by horseback, canal, or coal-powered trains. Widespread education was also minimal; many of the inventors who contributed to the sewing machine had no formal training in mechanics or even “natural philosophy” (science), and juries and judges were just as uneducated about such matters. As a result, patent infringement lawsuits were just as complex, lengthy, and difficult proceedings to undertake as they are today. Judges and commentators complained incessantly about the delays of justice and the costs of bringing or defending against a lawsuit. A single deposition transcript in just one of the many lawsuits in the sewing machine war was more than 3,500 pages in length—the only person who benefited from this was the lawyer who billed for his time.
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.
These statistics reveal that, contrary to many claims about the smartphone war and patent litigation generally, there is no “patent litigation explosion” occurring today. The patent litigation rate between 2000 and 2010 was a constant 1.5 percent. As reported by award-winning economist Zorina Khan, the average patent litigation rate between 1790 and 1860 was 1.65 percent. In fact, for three decades in Khan’s study patent litigation rates were higher than today’s litigation rate. Between 1840 and 1849, patent litigation rates were 3.6 percent—more than twice the patent litigation rate of the past decade. Also, it bears noting that the measurable increase in patent litigation in 2012 was entirely the result of legal changes to the patent system instituted by the America Invents Act of 2011, as recognized by Congress’ GAO Report on Patent Litigation (August 2013).
Of course, simply because something has happened repeatedly before does not mean that it is necessarily correct. But claims today that the “patent system is broken” are based on a mythical historical standard—and they are motivating Congress, regulatory agencies, and courts to make substantial revisions to the patent system. These “reforms” impose substantial legal burdens on licensing and selling patented innovation in the marketplace and on suing infringers. It’s striking that, while there are certainly some bad actors in the patent system today, there are no studies whatsoever on the effect these legal revisions will have on legitimate patent owners.
History thus reminds us that incredible innovation has occurred throughout all of the patent wars, just as everyone is benefiting from a vibrant high-tech and telecommunications industry today.
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