Patent Thickets Are Not Novel

No man, no industry, no new technology is an island. Our understanding of the universe and our ability to manipulate our surroundings via technology is possible only because we, as Isaac Newton put it, are “standing on the shoulders of giants.” The pace of innovation in many fields, the software field in particular, has led to development after incremental development being built upon technologies that have barely made it to market, creating overlapping intellectual property rights which are allegedly choking innovation. These “dense web[s] of overlapping intellectual property rights”, or patent thickets, require that companies must license technologies from multiple sources in order to bring a new product to market.

For the better part of a decade, people throughout the software industry have been predicting that these patent thickets will destroy some, if not all, of their industry in a blaze of litigation.

Many people fear that the commercial space industry will be condemned to the same “innovation-choking” state of affairs as our sector matures. If history is any guide, however, neither the software industry nor the future booming commercial space industry will be necessarily bogged down in perpetual patent wars.

Innovation will be encouraged rather than stymied when those in leadership positions recognize the greater innovation potential of intellectual property cooperation. The great sewing machine patent wars and the intellectual property battles at the birth of heavier than air flight peacefully ended when leaders realized profits, growth, and innovation can be greater for everyone involved if technologies were licensed on a fair and open basis.

The first great patent war and its peaceful end

The sewing machine was an essential technology for enabling the industrial revolution in agrarian 19th century America. For almost a century before the first sewing machines were produced, efforts to develop a mechanical sewing device failed. Ultimately, sewing machines incorporated more than ten elements. These elements were invented by different people. In the early 1850s, practical sewing machines were finally developed which could sew 250 stiches a minute, significantly faster than hand stitching! However, major players in the industry like Singer, Howe (a 19th century patent troll, never having produced a working sewing machine), and Grover & Baker were at war, suing each other to protect their R&D developments. Sewing machines were virtually impossible to make without the patents held by these companies and individuals.

The Sewing Machine War effectively ended in 1856. It was not brought to an end by regulations or new federal laws. Rather, the businesses and individuals involved created The Sewing Machine Combination. The Sewing Machine Combination licensed all the necessary technology to produce a working sewing machine to anyone willing to pay $15 a machine. The Sewing Machine Combination operated successfully until 1877, when its last patent expired, providing an easy path for the licensing of a then-emerging technology: the sewing machine.

The airplane patent wars

In 1906, the Wright brothers received US Patent No. 821,393 for their method of heavier-than-air flight. Aviation pioneer Glenn Curtiss developed ailerons to control his planes in flight however. Both the Wrights and Curtiss developed and patented a plethora of technologies related to flight. Bad blood between the Wrights and Curtiss resulted in significant lawsuits (the Wrights focused so much on suing people that their designs lagged behind their competition) and effectively blocked construction of new airplanes in the US.

In 1917, the US government ended this deadlock via the creation of another patent pool: the Manufacturers Aircraft Association. All patent litigation cases ceased automatically and manufacturers were given unrestrained use of airplane-related patents in order to support US efforts in fighting WWI. Royalties of one percent were paid to patent holders. As holders of many airplane-related patents, the Wrights and Curtiss received a significant portion of these royalties.

An end in sight for modern patent wars?

Via FRAND licensing for standards like 802.11 WiFi, 3G, and MPEG, the software industry is inching toward large scale cooperation. The emerging commercial space industry is in a unique position to avoid a repeat of the patent battles occurring in the software sector via the early establishment of patent pools and fair licensing organizations.

Cooperation is essential

The development of commercial sewing machines and the early days of heavier than air flight show that, as with any other aspect of business, when people choose to cooperate rather than self-righteously attempting to sue the pants off one another, cooperatives like patent pools and FRAND licensing standards can be established. These cooperatives facilitate access to industry enabling technologies, rather than preventing access. This gives the creatives among us more time and resources to do what they do best: innovate.

Happy creating!

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