America’s First Patent Thicket: Sewing Machine War of the 1850s

By Adam Mossoff
May 3, 2012

Howe's U.S. Patent No. 4750 on America's first patented sewing machine.

The Sewing Machine Combination was the commercial trust that was responsible for the mass production of the sewing machine in the nineteenth century—a commodity that was fundamental to the success of the Industrial Revolution in America. The Sewing Machine Combination was also the first patent pool in American history, operating successfully from its formation in 1856 until its last patent expired in 1877. As such, the Sewing Machine Combination has been a topic of study by some historians, but the provenance of this important patent pool has long been forgotten. One finds only scattered references to the inception of the Sewing Machine Combination in what contemporaneous newspapers called the ?Sewing Machine War. Yet the details of this conflict among the early sewing machine manufacturers and patentees—how this war was started, who was involved, and what was so extraordinary about the commercial and legal conflicts that it deserved the rather histrionic title of a “war” are sketched in only the most generalized terms by legal scholars today.

Today, scholars would refer to this conflict with less rhetorical flourish, identifying it simply as a patent thicket in sewing machines. A ?patent thicket? exists when too many patents covering individual elements of a commercial product are separately owned by different entities. This concept is not unique to patent law; it is based on Professor Michael Heller‘s theory of the anticommons in real property, which arises when there is excessive fragmentation of ownership interests in a single parcel of land. According to economic theory, the problem of such excessive fragmentation of ownership interests is straightforward: it increases transaction costs, accentuates hold-out problems, and precipitates costly litigation, which prevents commercial development of the affected property. Additionally, a patent thicket can block new research into follow-on inventions, preventing the “Progress of . . . the useful Arts.“

There is now a debate raging in the literature as to whether patent thickets in fact lead to such problems, and vivid anecdotes abound about obstructed development of new drugs or problems in distributing life-enhancing genetically engineered foods to the developing world. Given this heightened interest among scholars and lawyers concerning the existence and policy significance of patent thickets, a historical analysis of the first patent thicket and its resolution in the first patent pool is important.

In modern patent and property theory, this historical study fills a gap in the scholarship on patent thickets in at least two ways. On one hand, it serves as an empirical case study of a patent thicket that (temporarily) prevented the commercial development of an important product of the Industrial Revolution. There can be no doubt that the Sewing Machine War was a patent thicket. As one historian has observed: “The great advantage of the sewing machine, from the lawyers’ point of view, was that . . . no one complete and entire working sewing machine was ever invented by one person unaided.” The sewing machine was the result of numerous incremental and complementary inventive contributions, which led to a morass of patent infringement litigation given overlapping patent claims to the final commercial product. This is important, because, as Professer Heller has observed, “[a]nticommons theory is now well established, but empirical studies have yet to catch up.” The Sewing Machine War confirms that patent thickets exist, and that they can lead to what Professor Heller has identified as the tragedy of the anticommons.

On the other hand, the story of the sewing machine challenges some underlying assumptions in the current discourse about patent thickets. One assumption is that patent thickets are primarily a modern problem arising from recent changes in technology and law. Professor Heller explicitly makes this point in The Gridlock Economy:

There has been an unnoticed revolution in how we create wealth. In the old economy — ten or twenty years ago — you invented a product and got a patent . . . . Today, the leading edge of wealth creation requires assembly. From drugs to telecom, software to semiconductors, anything high tech demands assembly of innumerable patents.

In fact, Professor Heller‘s first foray into patent thicket theory was assessing a potential anticommons in “biomedical research” that he and his co- author, Professor Rebecca Eisenberg, predicted would occur given extensive patenting of biotech research tools (a prediction that has not yet been borne out). Continuing this focus on biotech, The Gridlock Economy discusses biotech research and development almost exclusively in its analysis of anticommons theory in patent law. Despite some off-hand references to earlier patent thickets, such as a thicket in the first airplane patents that was resolved through Congress‘s enactment of a “compulsory patent pool” in 1917, the focus of the theoretical and empirical studies of patent thickets is on very recent inventions in high-technology and science — computers, telecommunications, and biotech.

A second assumption is that patent thickets are a property problem — too much property that is too easily acquired that results in too much control — and so they are best addressed by limiting the property rights secured to patentees. As Professor Heller euphemistically puts it, “Cutting-edge technology can be rescued from gridlock by creatively adapting property rights.” More specific proposals have called for limiting conveyance rights in patented drugs, authorizing federal agencies to terminate patent rights to avoid patent thickets, and “excluding patentability of genetic inventions for reasons of morality or public order.” Many scholars concerned about patent thickets hail the U.S. Supreme Court‘s recent decision in eBay Inc. v. MercExchange, L.L.C., because the Court made it more difficult for patentees to become hold-outs through threatening or obtaining injunctions. Although Professor Heller, the Founding Father of anticommons theory, acknowledges that “the empirical studies that would prove — or disprove — our theory remain inconclusive,” this has not stopped the numerous proposals of various regulatory or statutory measures to redefine and limit property rights in patents.

The story of the invention and development of the sewing machine challenges these two assumptions insofar as it is a story of a patent thicket in an extremely old technology, but, more important, it is a story of the successful resolution of this thicket through a private-ordering mechanism. The Sewing Machine War was not brought to an end by new federal laws, lawsuits by public interest organizations, or new regulations at the Patent Office, but rather by the patent owners exercising their rights of use and disposition in their property. In so doing, they created the Sewing Machine Combination, which successfully coordinated their overlapping property claims until its last patent expired in 1877. Moreover, the Sewing Machine War is a salient case study because this mid- nineteenth-century patent thicket also included many related issues that are often intertwined today with concerns about modern patent thickets, such as a non- practicing entity (i.e., a “patent troll”) suing infringers after his demands for royalty payments were rejected, massive litigation between multiple parties and in multiple venues, costly prior art searches, and even a hard-fought priority battle over who was the first inventor of the lockstitch.

In this respect, the existence and tremendous commercial success of the Sewing Machine Combination of 1856 — a private-ordering solution to the Sewing Machine War — suggests that the current discourse on patent thickets is empirically impoverished. The Sewing Machine Combination reveals how patent owners have substantial incentives to overcome a patent thicket without prompting by federal officials or judges, and that they can in fact do so through preexisting private- ordering mechanisms, such as contract and corporate law. Heller, to his credit, recognizes that there are “market-driven solutions” to patent thickets, but his writing reveals a deep skepticism about such solutions vis-à-vis his more favorably considered “regulatory solutions.” The Sewing Machine Combination is an example of how patent owners can rescue themselves from commercial gridlock, which unleashed an explosion in productivity and innovation in a product that was central to the success of the Industrial Revolution in nineteenth-century America.

For the complete article, as well as the footnote citations for what is presented herein, please see The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s.

The Author

Adam Mossoff

Adam Mossoff is Professor of Law at Antonin Scalia Law School, George Mason University. He is a Senior Fellow and Chair of the Forum for Intellectual Property at the Hudson Institute, and he is a Visiting Intellectual Property Fellow at The Heritage Foundation for 2019-2020. He is Chair of the Intellectual Property Working Group of the Regulatory Transparency Project at the Federalist Society. At Scalia Law, he teaches a wide range of courses at the law school, including patent law, trade secrets, trademark law, property law, remedies, and internet law. He has published extensively on the theory and history of how patents and other intellectual property rights are private property rights that should be legally secured to their owners and licensed or otherwise transferred as commercial assets in the marketplace. His research has been cited by the Supreme Court, by the Court of Appeals for the Federal Circuit, and by federal agencies. Professor Mossoff has been invited to testify five times before the Senate and the House of Representatives on proposed patent legislation. His writings on patent policy have appeared in the Wall Street Journal, New York Times, Forbes, The Hill, Politico, and in other media outlets. He is a member of the Intellectual Property Rights Policy Committee of ANSI and the Academic Advisory Committee of the Copyright Alliance. He has served as past Chair and Vice-Chair of the Intellectual Property Committee of the IEEE-USA.

Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of Read more.

Discuss this

There are currently 65 Comments comments.

  1. EG May 3, 2012 2:36 pm


    Very interesting history and discussion about this first “patent thicket.” One of these days, I would like to write about the similar situation in powered flight between the Wright Brothers and Curtis but without the biased “melodrama” of Unlocking the Skys.

  2. John White May 3, 2012 3:04 pm

    Yes…….but: The “anti-commons” argument against patent multiplicity has always been around. Too many owners, too finely divided, leads to a technological stalemate or logjam. Well, I think this is one of those moments when reality does not match theory. (Like Economics!) Any patent boomlet in any technology has lead to unrivaled growth in that area as everyone wants their piece of the action. Start with sewing machines, go to cars, go to airplanes, go to transistors, go to semi-conductors, go to software/smart phones, etc. I defy anyone to point to a technological stalemate owing to conflicting rights. Rather, it is almost like gold acquisition in a rising market, everyone wants in; despite logic to the contrary. My notion is that when you have powerful discrete rights, like pharma, you have a logjam (aided by FDA) that truly withholds otherwise natural advances. Odd, and contrary to logic and theory; but quite evident in reality. Regulators please go away. These proposals are always solutions in search of a problem.

  3. Anon May 3, 2012 3:30 pm

    A regulatory body or agency naturally first seeks to sustain itself.

  4. Ron Hilton May 4, 2012 11:43 am

    As long as all of the participants in the “thicket” share the goal of commercializing the technology, it should eventually resolve itself. The problem occurs when a large, well-established incumbent uses patent rights to block progress (by itself or others) in order to protect a legacy technology. Antitrust reform is the solution to that problem, in my opinion, which includes putting IP and antitrust law on an equal footing in terms of burden of proof, and adding innovation criteria to antitrust analysis.

  5. Anon May 4, 2012 1:49 pm


    I think you may be on a correct path, although “which includes putting IP and antitrust law on an equal footing” is inherently difficult based on the nature of the rights involved (think negative rights and why that notion is critical). Patent rights are not a right to do anything. Further, there is a natural collision and in the end the two will not (and cannot) be on the same level. One is an admitted allowance, based on consitutional prerogative over the substance of the other.

  6. Stan E. Delo May 4, 2012 3:11 pm


    If you write such an article, I would really love to see it! I know of another *inventor* in the very early attempts to create practical powered aircraft that was very early. I learned of it from a local friend of mine, who’s grandfather Langley (sp. ch) conceived of it, and built an aircraft circa 1905, but it crashed during the first attempt to launch it.

    I think that is where the name Langley Field here in Western Washington state came from. I will look it up later and post a link to whatever I can find out about it here.


  7. anon May 4, 2012 3:50 pm

    Wouldn’t the resolution of the Sewing Machine War (industry-wide collusion and price fixing to create the Sewing Machine Combination) today be a violation of our anti-trust laws? The Sherman Act wasn’t law until 1890.

  8. Gene Quinn May 4, 2012 3:59 pm


    Excellent point. Maybe we can have a conversation with the tape recorder running while we are in NYC teaching the patent bar review course. Probably great for publication.

    Talk to you soon.


  9. Ron Hilton May 4, 2012 4:17 pm

    I don’t know if the Sewing Machine Combination engaged in price-fixing or other behavior that would have been illegal under antitrust law. Similar behavior today would and should be prohibited. But a patent commons or cross-licensing among competitors within an industry is not an antitrust violation. However, if a sewing needle manufacturer had developed or acquired patent rights to some essential sewing machine technology, and deliberately withheld it to protect the sewing needle industry, that would clearly constitute thwarting progress, defeating the stated intent of patent law. That’s where I think antitrust remedy would be appropriate, even if the sewing needle industry was otherwise free and competitive.

  10. Stan E. Delo May 4, 2012 4:31 pm

    I believe price fixing alone would violate *modern* anti-trust law here in the US. Apple very recently got very publically spanked for trying to fix the value of digital books at a premium rate, so that others like Amazon were not allowed to offer discounted prices.

    Sounded pretty greedy to me, and I am glad they got called onto the carpet for it.


  11. Blind Dogma May 4, 2012 4:53 pm

    and deliberately withheld it to protect the sewing needle industry, that would clearly constitute thwarting progress

    Ron, that would be incorrect.

    It seems I’ve pointed this out ot you before. There is NO requirement to actually USE a patented invention. There is no such USE requirement in US law (there may be such requirements in foreign law, but that’s a difference that quite makes the point).

    The fallacy of a roadblock thwarting progess needs to be put to rest once and for all. It’s a cannard that meets the mother of necessity and loses every time. It is actually a feature of the patent system – and a fundamental one – that someone has a right to say “NO, you cnanot do that.” Anyone caught with the cannard should be pointed out that they don’t understand a basic of patent law and be summarily dismissed.

  12. Stan E. Delo May 4, 2012 5:23 pm

    Another aspect of using a *patent thicket* type of approach, is for a single inventor or entity to create their own picket fence of defense. A good friend Andy G suggested it.

    Essentially what you do, is file an initial concept, and then immediately start trying to design around your own *invention* and then start filing PPA’s as soon as possible. Usually the inventor will find a better way, and just abandon earlier filings, leaving just a few hints in their wake to hopefully puzzle later piggy-back type of innovators. They might be able to snatch a few pickets out of the fence here or there, but the fence will still be mostly intact.

    Andy apparently *invented* the whole concept of flip open lap top computers, among many other things. Success matters and informs others.


  13. Stan E. Delo May 4, 2012 5:50 pm


    Also see Santos Dumont of Brazil, if I recall it correctly. He was developing aircraft in South America during the late 1800’s circa 1896 or something like that. Like Lilienthal, I think he died while trying to fly one of his creations.


  14. Stan E. Delo May 4, 2012 5:57 pm

  15. Stan E. Delo May 4, 2012 6:16 pm

    What a great quote from the end of the Final Flight section of the Lilienthal link-

    After crashing and trying to survive for about 36 hours, his last words to his brothet Gustav were:
    “sacrifices must be made”.[16][18] The official cause of death was a fracture of the spine.[17]

    Spoken like a true inventor!

  16. Ron Hilton May 4, 2012 7:42 pm

    No rights are without reasonable limits to their exercise. The patent right is no different.

  17. Stan E. Delo May 4, 2012 9:54 pm

    Ron H-

    Much like the use of Non-Disclosure Agreements. They are governed by State tort law, and every state does not not agree about what is *legal*. If one State decides that an NDA is only valid for 3 years, that is not to say that Nevada might decide differently, and allow 5 year agreements. If the term of the NDA is deemed to be too extensive or *expensive*, they can be deemed to be invalid if they are ever challenged in court. (Who’s court?)


  18. Ron Hilton May 4, 2012 11:05 pm

    Many companies won’t sign NDAs for unsolicited inventions, so a pending patent application is always the first line of defense. An NDA may come later if they are interested in pursuing a business relationship.

  19. Stan E. Delo May 4, 2012 11:10 pm

    Usually never if they won’t agree to an NDA up front. It takes two to tango after all, dontcha think?

  20. Ron Hilton May 4, 2012 11:12 pm

    I didn’t say “thwarting progress” per se was illegal. But it certainly defeats the stated Constitutional purpose of patent protection, and a legal remedy based upon antitrust law may be possible in some cases. I believe that the antitrust option needs to be made more accessible to address such cases.

  21. Stan E. Delo May 4, 2012 11:16 pm

    If they baulk at signing an NDA, without even considering the Business possibilities, they are probably arrogant idiots anyways.

  22. Ron Hilton May 4, 2012 11:35 pm

    Perhaps, but refusing to work with arrogant idiots severely limits one’s options in the business world 🙂 The fact is that most companies view an independent inventor peddling an unsolicited idea as a potential lawsuit walking in the door.

  23. Blind Dogma May 5, 2012 12:35 am

    But it certainly defeats the stated Constitutional purpose of patent protection

    Once again, Ron, you are wrong.

    That’s a feature, not a bug.

  24. Stan E. Delo May 5, 2012 4:46 am

    “The fact is that most companies view an independent inventor peddling an unsolicited idea as a potential lawsuit walking in the door.”

    All too true here in the US, Ron. Sort of reminiscent of the three monkeys that cannot See, Hear or Speak any evil. If they decide not to look at any prior or developing art, they cannot be accused of trying to swipe it. Their ignorance is others’ gain though, and they will just have to whine later after somebody else perhaps makes their business model obsolete while they “Weren’t looking”.

    I like to think of it as evolution in action, sort of like earning a Darwin Award.


  25. Stan E. Delo May 5, 2012 5:21 am

    I actually even found the original Car-In-The-Cliff story in about 30 seconds that I had thought was gone forever about 10 years ago, just out of sheer dumb luck I guess.
    Sort of long at 25,000 words, but well written and very funny.

  26. Ron Hilton May 5, 2012 12:17 pm

    BD, Are you disagreeing with the statement that the Constitutional purpose of patent law is to help promote technological progress, or are you disagreeing that the hypothetical sewing needle example would have represented a failure to achieve that purpose? Well, I guess if all textile products still had to be hand-stitched, that might eliminate our current unemployment problem :).

  27. Blind Dogma May 5, 2012 1:26 pm

    I am disagreeing with your assertion that patents that “block” do not meet the Constitutional purpose of patent law (but your attempted strawman is nicely noted)..

    Have you ever heard of the need to design around being an impetus for creativity? The mother of invention is necessity. You keep on ignoring this well known lore that is part and parcel of patent law and runs with the very nature of patents to be exclusive.

    Your ignorance (and your persistence in that ignorance) is breathtaking.

    Have another glass.

  28. Stan E. Delo May 5, 2012 5:02 pm

    As in the *inventors* might have to take a path less travelled to try acquire a patent right, and incidentally may create new and novel solutions that are “better” or “cheaper” than what has gone before in a few cases. Much like natural selection and evolution in action.

    Unless you happen to believe in a religious concept of *immaculate creationism*, or Intelligent Design,. and all those fossils were just created by God to keep us puzzled, for reasons that we can’t comprehend.

    A free round of Lemon-Lime Limbo to all,

  29. Ron Hilton May 5, 2012 5:22 pm

    Design-around is sometimes an option but rarely the best path forward in terms of technological progress. For example, that’s what gave us VHS instead Betamax, and to some extent, Windows as the PC industry standard instead of MacOS. The problem is when the market incumbent has patent protection on the defacto industry standard. If they refuse to license the standard-setting patent(s) then the only way forward is to be incompatible with that market standard. Paradigm shifts are sometimes able to challenge an entrenched standard, but they usually do so out of legal rather then technological necessity. In other words, backward compatibiliy is not mutually exclusive with forward progress. But the result of “design-around” is the littered landscape of unecessarily incompatible legacy standards that we have today. That’s where an antitrust solution might come in. If a proprietary technology achieves market dominance as a defacto industry standard, then refusal to license that essential IP could be challenged as an illegal monopoly. That would allow technologies to compete in the market place until one essentially wins, and then use that as the common starting point for the industry to innovate forward from there. That would more fully achieve the Constitutional “progress” objective.

  30. Stan E. Delo May 5, 2012 5:41 pm

    I think I get it now BD. Open source thinking pretty conclusively.

  31. Stan E. Delo May 5, 2012 6:04 pm

    Another case of evolution in action, that I wrote about several years ago. It doesn’t really rise to level of being eligible for a Darwin Award, because nobody became extinct or got seriously harmed during the Incident.

    True story as far as I can discern, or why would my erstwhile boss have given me a perfectly good Bomarck rocket engine for free? Too strange to be fictional.

  32. Blind Dogma May 5, 2012 6:43 pm


    You are just not getting it. It does not matter what you think as far as the “optimum” goes.

    First, that’s only your opinion, which has ZERO legal signifance.
    Second, as to how it ascribes reality, you are WAY off.
    Third, the fact that you admit it exists at all deflates your attempted hijack of the legal system and shows only that you want to impress a philosophy on that legal system totally disconnected with its realilty.

    Stan, ever the astute inventor, quickly picks up on the key factor: innovation is spurred by the necessity. And in truth, innovation cannot be valued a priori as you impliedly assert. Being forced to pave a new path may create a path of innovation that NEVER would have been taken otherwise. The fact that the path itself does not pan out is immaterial. It may not pan out itself now, but it is captured and like the shoulders of other giants, it may lead to a fertillization of innovation that in the future DOES pan out. For that reason, and that reason alone, the cannard of “blocked path” should be an insult to anyone that understand patent law. Not only do you appear to not understand this, but the fact that you continue to push the cannard speaks so loudly as to your lack of understanding that no argument you make can be heard above the din.

    This is not the first time you have attempted to impress your disconnected views on what the law is.

    The fact of the matter is that the issue should be framed with a bit more care. The issue is what to do when standard settings body goes about and sets an industry standard that happens to be under the control of patents. Denigrating the patent right is not an answer. The patent right in and of itself does not – and should not – change. There are other interesting wrinkles that could be pursued, including exhaustion theory, or even improper extension of patent rights. But the basics of patent law must survive.

  33. Ron Hilton May 5, 2012 7:54 pm

    I didn’t say standard-setting bodies. I said defacto standards, which evolve on their own in the marketplace, and eventually come to dominate an industry. In evolutionary terms, not every mutation is beneficial. Necessity is the mother of invention, but evolution in response to the necessity of avoiding legal roadblocks associated with existing standards, as opposed to market-driven necessity to meet actual customer needs, will in general produce less satisfactory inventions. We don’t need artificial legal roadblocks to spur innovation. The primary purpose of patent protection is to incentivize investment in innovative technology, not to guide the course of innovation by arbitrarily blocking off avenues which have historically shown the greatest promise. Innovators are perfectly capable of discovering paradigm-changing avenues on their own, without “help” from the patent system in that regard.

  34. Stan E. Delo May 5, 2012 8:27 pm

    Funny you should mention “paradigm-changing avenues on their own, without “help” from the patent system in that regard.”

    Nearly every actually valuable concept that I have conceived of was the direct result of very extensive personally done patent searches. All I had was a basic concept, nearly no money to work with, and an Internet connection. I learned how to do a good Classification search, which was amazing, since I had several ideas to investigate.

    Suddenly about 8 *inventions* were clearly not worth throwing 6 or $8,000 apiece at, but the ones that were good suddenly seemed to look a whole lot better. Perhaps the best part though, was that while I was doing the search, something from 1932 and another bit from 1953 might complete one of my prior puzzles, making everything else obsolete in a very few minutes.

    My boat propeller idea might change things a bit, but it also was not just conjured up out of thin air. I had Seen some other things.


  35. Blind Dogma May 5, 2012 9:02 pm


    Your answer paints an even worse picture for you, as you appear to want to take “de facto” standards and somehow make them commons. You mention “artificial legal roadblocks” as if you have a clue what that is. Your continued ignorance is astounding. Why are you in the patent world?The primary purpose is NOT to incetivize investment in innovation technology, it is to spur innovation. There is a huge difference from a legal and preal world practical standard. You continue the cannard of “blocking off” and just don’t realize how foolish you sound, how academic and how out of touch.

    Stan, kudos – I know I’m preaching to the choir with you, but you seem to get that one man’s roadblocks is another’s inspiration. Ron’s inspiration seems to parrot some academic groupthink on “commons” without really understanding the basics.

    How sad.

  36. Stan E. Delo May 5, 2012 10:16 pm

    It would be much sadder if folks like yourself were not here once in a while, just to check in on the kids occasionally. Sometimes children really just need a little bit of adult supervision once in a while.

    Just seeing who is first to wound one of the Bounding Bunnies is kinda fun though, dontcha think? We could always call up inventor Wallace and his sidekick Gromit of Anti-Pesto fame if all else fails, and they would probably very happy to clean up the “Burrowing Bounders” with Wallace’s patented Bun-Vac 6000. Capable of extracting 625 RPM (Rabbits Per Minute), and transporting them to Wallace’s basement.

    Check out The Curse of the Were-Rabbit some time if you ever get a chance. Aardman and company out of England, which is totally hilarious, and the graphics are amazing.

    Ciao bella,

  37. Stan E. Delo May 6, 2012 12:00 am

    It seems as if the Bun-Vac 6000 is only capable of removing 125 Rabbits Per Minute, instead of 625. Sorry for any confusion in a numerical sense.


  38. Ron Hilton May 6, 2012 12:05 am

    Innovators are largely self-motivated. They have an in-born passion to create. Some also have an entreprenuerial spirit and are driven by the profit movtive, while others are content to work for someone else who supports their habit. But the motivation to create and the profit motive are not the same. The profit motive seeks an advantage over the competition, the stronger the better. By granting a temporary, limited monopoly, the patent system is primarly directed to the profit motive. I’ve heard more than one investor say that what they are looking for is an “unfair advantage” that will give them an edge in the market. Which is perfectly appropriate, because competing self-interest is how the free market works. The patent system, for the most part, works wonderfully well in that free market context. However, in rare cases, the exclusive negative right that is a patent can work against the free market, when it leads to unilateral control of an essential facility to the entire market in question, the same way as the trusts of the past dominated essential resources (oil, steel, telecom infrastructure). Thus the basic solution to this relatively rare but serious problem should be based in antitrust law. That’s all I’m saying. I’m not anti-patent. I am strongly pro-free market. It is precisely for that reason that I believe antitrust has an important role to play.

  39. MuenchnenOst May 6, 2012 5:23 am

    I see now that the concept of a roadblock is ambiguous. A patent grant is a KEEP OUT sign. To trespass on the protected area is to infringe. Staking a claim to new and unobvious territory does not impede routine technological activity. Such routine activity, like selecting optimal materials for the construction of an article of commerce, ought not to be impeded by issued patents. If it is, then product quality progressively declines. Conversely, patents that force design arounds are a force for good.

    Suppose DuPont makes a grand launch of a third iteration of its polymer, G. You have to get G3 from DuPont or a DuPont licensee because they patented it, and the patent is good. DuPont promote their polymer on the basis that will do what G2 does but its mechanical properties, in particular abrasion and impact resistance, are marginally better than that of G2.

    You make golf balls. Their surface is of DuPont’s G2. You get wind of G3 and file for “Golf ball with a surface of G3”. Self-evidently, your claim is new and useful. Without obviousness to help them, all the other golfball makers are unable to order G3 from DuPont, but must stay with G2.

    That’s an example of a patent roadblock, standing in the way of routine technical progress.

    Why should your claim to a new but obvious G3 ball be valid? How does your 20 year long exclusive right to G3 balls promote technical progress?

  40. Anon May 6, 2012 8:59 am

    I see now that the concept of a roadblock is ambiguous.

    I do not think it is ambiguous at all. As I mention on the post , the concept is just misapplied. Calling it “ambiguous” seems like a disingenuous attempt to apply the idea when it should not be applied at all. Blind Dogma is correct: the cannard should be recognized when it appears and should be put to rest.

    Take for example your given example. It is a clear strawman, as the patent to the material woullindeed render the obvious use of that material for a golf ball cover, given G2 was used for that very purpose and you have shared that the G3 is patented (hence prior art, so “getting wind of” avails you not). Your example is false from the standpoint that you set up a dichotomy to prove a point, but that set up would not be reached in the first place. Your attempt to make a point makes the opposite point.

    If one simply looks rationally at the desire to unblock what a patent blocks (and after all, that is all that a patent really does), one can only conclude that the desire to unblock is anti-patent. Let’s not forget that patents are expressly for limited times, and even during that limited time the Quid Pro Quo exchange has taken place so that experimental use in order to devise around is available. Roadblocks are not ambiguous. They are part and parcel of the patent system.

    It seems that there is an innate “taking” desired if a patent proves to be too useful and becomes a part of the infrastructure after it is granted. One needs to keep in mind the timing of what is being proposed. At the time of patent grant, there is no sure knowledge of how succesful that patent will be. There is no guaranteee of making money in a patent grant. There is no guarantee of being “infrastructural” in a patent grant. The current rage of thinking exhibited here by Ron Hilton (and on Patently-O by Professor Michael Burstein in his story about the book by Brett Frischmann) ignore this very important foundational element. Not to denigrate academics, but this is the type of “what-if” musings that proves the adage “too smart for your own good.”

  41. MuenchnenOst May 6, 2012 3:56 pm

    Apologies, readers. In my haste I omitted to include a reference to the parallel running thread in which Dale Halling argues that 35 USC 103 is unConstitutional.

    I fail to understand how a patent system lacking an obviousness test can function usefully. That failure was what prompted my post. I want to understand Dale’s viewpoint, but I can’t, yet.

    My golfball example was an attempt to show that there indeed exists stuff (lots of it) which Dale asserts cannot exist, namely, subject matter that is new, useful and which one cannot be sure the PTO will refuse, but which is nevertheless obvious. Until the issued bad claim is revoked, it blocks the road of ordinary technical progress, to the detriment of industry, employment and competition.

    Anon, sorry, I don’t understand your post 40.

  42. Ron Hilton May 6, 2012 4:59 pm

    I guess I should be flattered to be considered an academic (I’m not) or too smart for my own good (that’s definitely true), but my interest in this issue is far from being an ivory-tower exercise. My experience in matters of patent infringement and antitrust is all too real, as some of you may or may not recall from prior discussions of this issue.

  43. Anon May 6, 2012 5:25 pm


    What part don’t you understand? It’s pretty clearly written. There are four paragraphs an dfour points made.

    1) Your assessment that “roadblock” is ambiguous is refuted.

    2) Your example is deflated, and in fact, it supports the counterpoint.

    3) blocking is part and parcel of what patents are

    4) the urge to commons-ize misses some critical timing factors.

    Any and all of these should put the discussion in proper light.


    BD’s comments are not meant to flatter you. If you take them that way, you are even more behind the curve than he thinks. My comments as well, are not complimentary. Being too msart for your own good really means that you are not smart in the right way. It’s not an attribute to aspire to.

  44. Stan E. Delo May 6, 2012 6:53 pm

    Smart is to dumb or stupid, as informed is to ignorant. Apples and Oranges. I thought I detected a bit of real world experience in several of your posts. Sometimes patent attorneys are the actual Ivory Tower inhabitants. Caveat emptor as always, because inventing is a Very risky business (buyer beware).


  45. Ron Hilton May 6, 2012 7:33 pm

    I guess my irony was too subtle. I know I’m not being flattered. But leaving the gratutitous ad hominem behind and returning to the subject at hand, I fully understand that the patent right is one of exclusion, and must necessarily be so. There are many examples of competing negatives that result in a positive. Competing self-interest -> prosperity. Separation of powers -> liberty. Mutual assured destruction – > peace. Etc. Etc. I really do get the point. But pathological cases can and do arise that threaten the delicate balance, and the patent system is no way immune from that. Sometimes corrective action is needed, which is the case of patents is antitrust. Just like the free market needs regulation, and the arms race needs verifiable treaties.

  46. Stan E. Delo May 6, 2012 8:28 pm

    With 8 miilion patents granted here in the US, and still counting, things tend to sort of average out. Don’t worry so much about the validity or not of patents. Personally, I consider myself to be very fortunate to have been born in the US, with arguably the Strongest patent system ever invented. I tend to protest when others might try to besmirch any of my possible patent rights, at least here in the US.

    Europe can do whatever it likes, and see how successful That will be, or they might decide to learn a few lessons from us upstart North Americans (including Canada) Why wouldn’t they want to consider harmonizing Up to a higher standard of Intellectual Property Rights?

    Too many people that are too poor or something? China seems to get that, but their progress in that direction has been pretty glacial so far, for obvious reasons. Enforcement issues, and all like that.


  47. MuenchnenOst May 7, 2012 3:21 am

    Anon at #43. I’m sure that to you, yours is “pretty clearly written”, but it’s still at too high a level for me. I still have no idea what you’re on about and so still have no idea how to reply.

    Over the years I have learned that, if I am having difficulty understanding, I’m not the only one.

  48. Anon May 7, 2012 6:35 am


    Help me help you. I summarized my post into four pieces. Which piece are you having trouble understanding?

    I am assuming for the moment that you are not Maxdrei and that I am not “leading more horses to die of thirst at your water trough.” MaxDrei has a nasty reputation for simply not understanding what he does not want to understand, and this, I am sure, I am not the only one aware of.

  49. Anon May 7, 2012 6:38 am


    Your post at 45 is largely full of platitudes and empty of substance. Address the points I made at post 40 to continue our conversation.

  50. Ron Hilton May 7, 2012 10:42 am

    OK, I will give a real world example from my own experience. From 1956 to 1996 IBM was subject to a Consent Decree that enabled open competition around their mainframe architecture, including the 360 which remains an industry standard today as the “z” architecture. For decades competition existed in this market. I worked for Amdahl during that period, which beginning in the 1970s engaged in a virtuous cycle of innovative competition with IBM, improving the performance and reliability of the mainframe. There were other competitors as well, including Hitachi. In 1999 Amdahl spun of Platform Solutions PSI), of which I was the founder. I had developed patented technology which brought near-native performance to software emulation of legacy architecture (e.g. 360 and its successors) on commodity hardware (e.g. Intel). The result was a tremendous potential cost savings in the mainframe hardware market. In 2001, both Amdahl and Hitachi pulled out of the mainframe business, largely because IBM had added 64-bit capability to their mainframe (it was renamed “z” at this point). Due to the lapse of the 40-year consent decree, they were no longer required to enable compatible alternatives, although they were warned in 1996 that if they returned to their past illegal behavior the court would revisit that decision. They had also orginally agreed to offer PSI the same patent cross-license as Amdahl and others had enjoyed for decades, which had helped to entrench 360 as a defacto industry standard. But then they decided to draw the line at the 64-bit “z” upgrade, and that was the beginning of the end for Amdahl, Hitachi, and PSI. With their historic competitors out of the picture (Amdahl and Hitachi), they became more aggressive, eventually reversing their early stated position with respect to PSI and filing a patent infringement suit, after tens of millions of dollars had been invested in PSI, based upon IBM’s earlier stance and the many decades of legal precedent under the Consent Decree. PSI brought an antitrust countersuit, but IBM outspent them and PSI finally caved. IBM bought PSI, cancelled its product development, and buried it’s innovative cost-saving technology.

    Now I suppose that those on this forum who can see no wrong in anything with the patent system will say that IBM had every right to obliterate the mainframe compatible industry, in spite of the decades of benefits and progress that true competition had provided. However, the “z” patents that they used against PSI were very questionable. There was very little if any novelty involved in going from their 31-bit architecture to a 64-bit version. Intel and others had already done substantially the same thing. But the cost burden of proof is so high in defending against an invalid patent, as well as in making an antitrust case, that PSI never really had a chance against an industry giant many times its size. The US DOJ and the EU investigated IBM for several years on this matter, but eventually abandoned the case. According to one lawyer involved, there were other more high-profile antitrust cases at the time, and the lowly mainframe industry wasn’t worth the effort (even though the IBM mainframe still accounts for 75% of the world market in enterprise computing, and the data shows that the mainframe prices leveled off after competition ceased in the mainframe market, which had enjoyed decades of steady price reductions and quality improvements under the Consent Decree).

    The bottom line is that IBM was able to use a few questionable “64-bit” patents to continue their stranglehold on a customer base that has been locked into their original 360 mainframe architecture for decades, due to the prohibitive switching costs in abandoning such a well-established and pervasive industry standard. Furthermore, far from promoting innovation, they were able to use their dominant size and position to acquire and then bury innovative improvements that threatened the revenue from their own more costly product line, to the detriment of their captive customers who have little choice but to continue to pay higher prices for mainframe hardware. All of this anti-competitive anti-progress behavior was enabled by an abuse of the patent right, turning it’s original intent of promoting progress on its head in this case.

    What I have described may be a rare, pathological case, but it really did happen this way, and their needs to be a remedy in such cases. That is why I believe that a more robust and readily accessible antitrust mechansim is needed to counter such flagrant abuses of the patent right.

  51. Blind Dogma May 7, 2012 2:14 pm

    buried it’s innovative cost-saving technology

    If in fact this innovative cost-saving technology was patented, it would be impossible to bury as
    1) during the term, the quid pro quo would mean that it was public and
    2) after the term the invention belonged completely to the public.

    You have provided a nice story, but it is none that shows your bias and misundertstanding rather than any true understanding of patents and patent law. You have confused general business practice details with the law of patents and have come across as jaded. It is precisely this type of non-patent induced emotion that patent law should be on guard against. You are the one bad apple that would spoil the whole barrel. The pathology cannot and must not be laid at the feet of patent law.

  52. Ron Hilton May 7, 2012 2:42 pm

    The focus of my concern in this thread is actually antitrust law, not patent law, although I have advocated for patent reforms in other threads (e.g. multi-track) that are directed more to improving efficiency and quality, in other words the practice, not the theory. I do not challenge the basic theory of the quid-pro-quo and the exclusive right, which I hold in very high regard. The problem with the IBM/PSI case that I described is that any design-around sacrifices architectural compatibility, which is a non-negotiable requirement in that industry. Even if the PSI patents were in the public domain now, IBM would still block them from penetrating their closed market. And by the time they do lapse, IBM will have no doubt obtained some “128-bit” patents to continue to perpuate their decades-long market hegemony. It’s not an indictment of the patent system in general. It’s a specific kind of abuse that some form of antitrust reform would seem best equipped to address.

  53. Blind Dogma May 7, 2012 3:13 pm

    any design-around sacrifices architectural compatibility, which is a non-negotiable requirement in that industry

    Non-negotiable? Not really. Everything is negotiable.

  54. Ron Hilton May 7, 2012 5:01 pm

    Everything may be negotiable in a patent thicket, where all of the players hold at least some of the cards. But not when a dominant player holds most or all of the cards, at least not in any commercially viable sense.

  55. Stan E. Delo May 7, 2012 5:27 pm

    “Non-negotiable? Not really. Everything is negotiable.”

    Very well said anon. That is the most essential tenet of doing Business and hoping to succeed. A patent is after all just a business tool, meant to help give smaller entities a chance to challenge the status quo and Maybe profit from it. If the inventor becomes too demanding, which often seems to happen, the proposed *contract* might just slide off the end of the possible licensee’s desk into the round file. No deal.

    Not to say that is what happened in your case, Ron, but I have heard multiple stories in the past of inventors blowing deals because they are to difficult to deal with.


  56. Stan E. Delo May 7, 2012 5:39 pm

    Blind Dogma- Oops! Sorry for attributing your quote from # 53 to Anon. I sure hope I will never have to meet Either of you in a Court of Law some day! That is, unless I happened to be one of your clients.

  57. Blind Dogma May 7, 2012 10:20 pm

    You woulld not mind meeting Anon, even as an advesary (he’s just a softee, capable, but polite to a fault). I would cordially rip your throat out and have you thanking me.

    But that’s just me being a softee too.

  58. Blind Dogma May 7, 2012 10:23 pm


    Your post at 54 continues your fanatasy realm of patent ignorance. You might find it helpful to think about ANon’s post at 40 and realize that when a patent is born and more specifially what happens after a patent is born is ouotside of patent law by and large. Time to grow up and join the big bad real world.

  59. Stan E. Delo May 7, 2012 11:07 pm

    As long as you were cordial, and you had all your ducks in a row, I might get an education and clarification about what my patent rights actually Are when contested.

    As my patent agent once opined recently though:
    “Why would I ever want to appear in court?” If I ended up in court for some obscure reason, though, I would need a Patent Attorney to represent my interests. (large sigh)

    After reading the application he wrote for me, it made me a real believer in what he was saying. Just don’t ever have to go there in the first place, by being really good and doing your homework properly.

  60. Ron Hilton May 8, 2012 2:25 am

    In contrast with the draconian remedies traditionally imposed for antitrust violations, requiring RAND licensing to address rare but pathological cases such as I have described is very tame by comparison. To listen to some of the remarks here, one would think that the patent right were the supreme immutable law of the universe that trumps everything else. That if anything is the fantasy realm.

  61. Blind Dogma May 8, 2012 6:15 am


    You are still confusing timing issues and post grant mechanisms. You need to realize what the patent grant actually is and then realize that what happens after grant cannot must not affect what the grant is.

    You keep on wanting to change the patent world. It is not that world that needs changing.

    Wake up.

  62. Ron Hilton May 8, 2012 10:01 am

    To reiterate, my main focus in this thread is not to challenge the patent world per se, but merely to suggest that the antitrust mechanism be brought more onto an equal footing with patent law. For example, frivolous patent infringement suits can be and often are brought with impunity (although AIA has improved that situation to some extent), whereas to even hint at a potential antitrust concern in a private communication, let alone to allege it publicly or bring a suit, is fraught with legal peril. Why is that? Are the stakes really so much higher in an antitrust action? And if so, why does it need to be that way? Why are sledgehammer antitrust remedies the norm, when a more surgical, targeted judgement would do just fine?

  63. Blind Dogma May 8, 2012 7:45 pm


    Other than your biased history, I can make no rational sense of your ramblings.

  64. Roland May 10, 2012 10:55 am

    The complete article makes interesting reading, particularly in the light of the current litigations around Standards essential smartphone patents – the $5 per sewing machine that Howe got (a 5~15% royalty rate for a machine sold at between $50 and $100) makes Motorola Mobility’s maximum royalty rate of 2.25% (for 3g) look very reasonable!

    Whilst I largely agree with BD that “The issue is what to do when standard settings body goes about and sets an industry standard that happens to be under the control of patents.” [comment 32] (particularly as BD used “standard” which has a wider interpretation to “Standard” which implies formal Standard’s bodies only), I also understand where Ron may be coming from with his point “…the market incumbent has patent protection on the defacto industry standard. If they refuse to license the standard-setting patent(s)” [comment 29], but do feel that what has been missed is consideration of what would of happened if the protagonists in the sewing machine war (for example) didn’t reach agreement? I’m looking not at the patent owners so much as at the economy, where the need and benefit of a sewing machine that actually worked was seen and being grasped, however the wars were serving to prevent sewing machines from reaching the market and hence stiffle the economy and limit innovation.

    From my reading, I would conclude from an economic perspective that the primary problem is not so much the existence of a thicket but the behaviours of the patent holders in the way they enforce their patent rights. But (before BD reminds me) I do note that promotion of the economy etc. is not mentioned in the consitutional clause…