One could be forgiven for presuming that patent wars have reached their peak in 21st century super-technology disputes, commonly referred to as “the smart phone wars”. However, a historical examination of patent wars reveals a very different, and somewhat surprising, picture. Understanding patent wars to include their litigatious element, as “battles between companies or individuals to secure patents through litigation, either offensively or defensively”, today’s patent wars seem light in number compared with those in history. However, a historical perspective shows that the complexities of patent disputes, both legal and technological, show amazing similarities between then and now.
Since much patent litigation is still solved in the jurisdictions of the U.S.A. this is a good starting point for examining the history of patent warfare. 1790 saw the introduction of the first patent law but it was the dawn of the US industrial revolution that brought the upsurge in patent disputes: the period c.1850 – 1900 is the half century when patent wars really flourished.
The first piece of technology that struggled to protect itself against copy-cat versions was the sewing machine. Elias Hunt had patented his version in 1846 but in 1850 Isaac Singer was pursuing his claim. The issues present in the 1850’s are interestingly similar to those in today’s high-technology patent wars: then many over-lapping patents covering single but similar products were issued. Even then the accompanying law suits were high profile, expensive and taking place in multiple venues.
Commercial exploitation of the patents was not so different from that pursued today; selling and trading patents amongst firms was rife, and partnerships between patent – licensing entities and manufacturers were not unknown. Like today’s patent disputes, the Singer Machine War was not quick to settle. After six years of wrangles, it was solved by establishing a patent pool (a cross-licensing agreement between all the patent owners) known as “the Sewing Machine Combination”. Other similar 19th century patent disputes followed the inventions of barbed wire, the telephone and airplanes, to name but a few. In the patent litigation for the telephone, a mere five hours separated the filing of rival patents in 1876 between Alexander Bell’s “Improvement in Telegraphy” and Elisha Gray’s “Transmitting Vocal Sounds Telegraphically”. In 1878 five hundred and eighty seven separate lawsuits were filed in the ensuing litigation. Thus, making the estimated one hundred suits currently filed in the smart-phone wars of today, seem somewhat insignificant. Such was the profligacy of patent litigation in the late 19th, it has been estimated that the patent litigation rate for the 1840’s decade was 3.6%, compared with today’s rate of 1.5%. These statistics help to put into perspective the fears of those pessimists today who refer to the “patent litigation explosion” in high-tech patents as revealing a “broken patent system”. That it survived into the 20th century from the 19th suggests that it will not collapse in the 21st!
The beginning of the 20th century saw the on-set of patent disputes in the nascent drugs and pharmaceutical industries. Again what has not changed is the marrying of complex science-technology arguments and the legal arguments and judgements that need to be made to protect their ownership and commercial exploitation. In 1912 Judge Learned Hand lamented his own lack of technical expertise and “the confusion the intricacy of the subject-matter causes”. Similar problems regarding the intellectual and technological challenges have been aired by Judge Posner, over his own deliberations in the “smart phone war”. Again an interesting statistic is that in these present patent disputes, the estimated $20 billion spent by companies like Apple and Google on their patent lawsuits, exceeds their expenditure on research and Development.
This article was provided by Vannin Capital, a commercial litigation funding specialist.