Have scholars and critics misconstrued patent thickets, incremental innovation, and patent trolling as modern phenomena? In The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s, Professor Adam Mossoff (George Mason University School of Law) thoroughly examines the history of the sewing machine and illustrates how these “modern” phenomena have long existed in innovation. In this article, Professor Mossoff provides an overwhelmingly informative historical study of the first American patent thicket and subsequent patent pool, discusses the importance of an in-depth historical analysis, and challenges a few widely-held assumptions.
Professor Mossoff begins by recounting the conceptual and mechanical shortcomings of Old World machines and the eventual American breakthrough and commercialization. Initially, the commercialization of the sewing machine suffered from an explosion of patent litigation, spearheaded by Elias Howe, a non-manufacturing patentee. It was the sewing machine’s incremental development and innovation, the subsequent overlapping patents, and the difficulty experienced in attempts to commercialize the sewing machine that created the first American patent thicket. It wasn’t until the private-ordering solution to pool the relevant patents in the Sewing Machine Combination, that they experienced any commercial success.
According to Professor Mossoff, the contemporary relevance of the story of the sewing machine lies in the parallelism of several modern issues that are commonly debated in patent law. Professor Mossoff argues that the Sewing Machine War signifies the contextual nature of patent thickets, often defined by variables such as time, communication, and the means and costs of commercial exploitation. Additionally, Professor Mossoff suggests that the Sewing Machine War provides empirical support for the theory that incremental innovation of complementary elements is pervasive in the technological advances protected by patents. Other groundbreaking inventions such as the light bulb, the automobile, and the airplane all evolved from similar incremental innovation resulting in patent thickets. Additionally, Professor Mossoff cites that the most important lesson from the Sewing Machine War may be the possibility of private-ordering solutions to patent thickets, rather than the contemporarily favored regulation, legislation, and litigation.
In his forthcoming article Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory, Professor Mossoff identifies another common misunderstanding in intellectual property theory—John Locke’s labor theory of value. Locke’s labor theory of value, particularly in intellectual property theory, has long been criticized by contemporary philosophers and scholars. See e.g. Edwin C. Hettinger, Justifying Intellectual Property, Philosophy & Public Affairs 19, no. 1 (1989). Professor Mossoff argues that a proper understanding of Locke’s labor theory, and distinguishing Locke’s theories from those of Karl Marx, may actually justify intellectual property rights.
In these articles, Professor Mossoff has enhanced the reader’s historical perspective on patent thickets and provided detailed support for Locke’s moral justification of property rights in intellectual property theory. Professor Mossoff’s in-depth historical analyses and his thorough explanation of Locke’s philosophical arguments show the importance of careful scrutiny of modern assumptions and interpretations in intellectual property history. As the landscape of modern patent law changes with current reform, it is valuable to reflect upon the historical developments and reconsider the assumptions commonly made in efforts to solve modern problems in patent law.
Posted by Derik Sanders (dtsanders@smu.edu), a 2014 Juris Doctor Candidate at SMU Dedman School of Law and research assistant to Professor Sarah Tran.
