Apple's iPhone patent war nothing new at Patent Office

 

8210562

WASHINGTON — No one ever accused Google Chairman Eric Schmidt of threatening to throw the late Steve Jobs down a flight of stairs.

In other respects, Apple's patent war inspired by its co-founder against iPhone competitors using Google's Android system evokes an 1850s free-for-all among sewing machine makers, when Isaac Singer threatened violence after Elias Howe accused him of patent violations.

The smartphone war including Samsung Electronics and other rivals is the latest dispute over innovations that have transformed society since the Constitution established U.S. patent rights. Inventions of the telephone, the airplane and electric-power delivery all set off years-long clashes that featured larger-than-life characters, created fortunes, and altered the course of markets.

"When the founding fathers set it up, I don't think they were looking to foment litigation, but the inevitable outcome of a patent right is to keep other people from infringing," said Jesse Jenner, a partner at Ropes & Gray in New York.

The number of patents is soaring. Of more than 8.3 million U.S. patents since 1792, more than a quarter were issued after 2000.

The proportion of lawsuits to patents has remained stable, said Zorina Khan, an economics professor at Bowdoin College in Brunswick, Maine, and author of "The Democratization of Invention." The number of U.S. patent lawsuits filed has increased an average of 4.9 percent a year since 1991, while patents issued grew an average of 4.5 percent, according to a Sept. 12 PricewaterhouseCoopers study.

In recent years, there have been fights over diapers, air fresheners, oil drilling equipment, and one over heart devices that has lasted more than a decade. None of those got the attention that's being given to the smartphone wars, which have become fodder for late-night comedians or magazine covers. Still, the public interest isn't unprecedented: patent battles were front-page news a century ago.

"Everyone involved has been quite convinced, decade after decade, that the economy and innovation were being crushed by excessive litigation," Khan said.

Orville and Wilbur Wright were accused of holding back the growth of aviation by demanding royalties from any airplane manufacturer or exhibitor. Glenn Curtiss, whose company in 1910 was one of the biggest aircraft makers, refused to pay, sparking a seven-year battle. It ended only when Congress forced a licensing agreement because the U.S. needed airplanes to fight World War I.

A decade later, the successor to the Wright Co. joined with Curtiss Aeroplane & Motor Co. to become Curtiss-Wright Corp., the Parsippany, N.J.-based company that still makes aircraft components.

"While the Wright patent suits might have driven small competitors out of the game who wouldn't have survived anyway, it didn't have much financial impact on the Curtiss company," said Tom Crouch, senior curator of aeronautics at the National Air and Space Museum in Washington and author of "The Bishop's Boys: A Life of Wilbur and Orville Wright."

Congressional intervention is rare. Most often, competitors settle cases with cross-licensing agreements or carving of the pie.

Patent owners who've been most remembered in the history books weren't always winners in court or the marketplace.

Eli Whitney, who patented the cotton gin in 1793, couldn't stop rampant copying despite legal victories. After giving up, he became rich inventing interchangeable parts for rifles.

A half-century later, Cyrus McCormick, considered the father of modern agriculture, lost a suit seeking to stop rival reaper machines in the 1850s — a case in which the winner's counsel, Edwin Stanton, hired an Illinois lawyer named Abraham Lincoln to assist on the case. Stanton later served as President Lincoln's secretary of war.

"It was widely considered at the time to be a case of enormous importance," said Judge Kent Jordan of the 3rd Circuit Court of Appeals in Philadelphia. "A lot of money was going into the fight, not unlike big patent cases of today."

Modern communications have spawned 150 years of litigation.

Samuel F.B. Morse won an 1854 Supreme Court ruling on the telegraph, fending off a challenge by a former contractor who was accused of building a copycat system.

Alexander Graham Bell won an 1888 Supreme Court ruling that he was the first to discover a process for transmitting the human voice. His American Bell Telephone Co. would dominate the U.S. telecommunications industry for almost a century. Three justices disagreed, saying a Pennsylvania machinist named Daniel Drawbaugh deserved credit and the patent.

Before Apple and Google fought over operating systems for smartphones, Thomas Edison and Westinghouse Electric battled in the 1880s over technologies for electric power. Westinghouse, which licensed Nikola Tesla's patents, won an 1894 appeals court ruling that it didn't infringe an Edison patent. Tesla's alternating current prevailed over Edison's direct current in the marketplace after a display at the Columbian Exposition in Chicago in 1893. Westinghouse would fend off later challenges to Tesla's patents.

More recently, Qualcomm, Nokia and Ericsson battled a decade ago over the underlying technology that lets phones get Internet access and play video. All reached settlements.

The current smartphone fights are over features that make phones easier to use. They include using a pinching motion to zoom on images, tapping a phone number on a Web page to dial a business, or emails that provide reminders based on the user's location. Even the simple black face with sloping edges that mark the design of the iPhone is in dispute.

Just as the smartphone wars relate to improvements of known products, some inventions on sewing machines dated to decades before Howe came up with the idea of a lockstitch, using a needle and a shuttle instead of trying to replicate a seamstress's movements.

Howe's idea revolutionized a product the New York Times in 1860 called the "only invention that can be claimed chiefly for woman's benefit."

Howe failed at efforts to make his own machines and turned to seeking payment from manufacturers. When Howe approached Singer with a demand for $2,000 in royalties, Singer threatened to "kick him down the steps of the machine shop." Howe sued and the battle spread to every manufacturer then laying claim to some unique feature.

"As he began to win the lawsuits, the other manufacturers realized they could do the same thing and could get royalty agreements," said George Mason University law professor Adam Mossoff, who has written about the dispute. "It burst into a full-scale war by 1853. Having four entities that owned the relevant patents was enough to create a mass of patent litigation."

Representatives of the companies were put in a room on the eve of trial, he said. They decided to create what became the first patent pool in U.S. history, where anyone, for a fee, could obtain access to all patents necessary to build a sewing machine.

The smartphone wars could end the same way.

"The sewing machine wars ended not by new legislation in Congress, not by new regulation or by the courts," Mossoff said. "It was brought to an end by the patent owners themselves. In 1856, they realized engaging in litigation was not in their best interest."

— With assistance from Rachel Layne in Boston, David Voreacos in Newark and Adam Satariano in San Francisco.

News
Jacqueline Bisset has claimed that young women today are obsessed with being 'hot', rather than 'charming', 'romantic' or 'beautiful'
people
Arts and Entertainment
Ben Affleck stars as prime suspect Nick Dunne in the film adaptation of Gone Girl
filmBen Affleck and Rosamund Pike excel in David Fincher's film, says Geoffrey Macnab
Arts and Entertainment
Lena Dunham
booksLena Dunham's memoirs - written at the age of 28 - are honest to the point of making you squirm
Sport
Frank Lampard and his non-celebration
premier leagueManchester City vs Chelsea match report from the Etihad Stadium
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
Arts and Entertainment
A bit rich: Maggie Smith in Downton Abbey
tvSeries 5 opening episode attracts lowest ratings since drama began
News
people
News
i100
Life and Style
A new app has been launched that enables people to have a cuddle from a stranger
techNew app offers 'PG alternative' to dating services like Tinder
Sport
Greg Dyke insists he will not resign as Football Association chairman after receiving a watch worth more than £16,000 but has called for an end to the culture of gifts being given to football officials
football
Arts and Entertainment
Jake Quickenden sings his heart out in his second audition
tvX Factor: How did the Jakes - and Charlie Martinez - fare?
Sport
premier league
Arts and Entertainment
Rachel, Chandler and Ross try to get Ross's sofa up the stairs in the famous 'Pivot!' scene
tv
Arts and Entertainment
'New Tricks' star Dennis Waterman is departing from the show after he completes filming on two more episodes
tvOnly remaining original cast-member to leave crime series
Sport
Mario Balotelli celebrates his first Liverpool goal
premier leagueLiverpool striker expressed his opinion about the 5-3 thriller with Leicester - then this happened
Arts and Entertainment
Female fans want more explicit male sex in Game of Thrones, George R R Martin says
tvSpoiler warning: Star of George RR Martin's hit series says viewers have 'not seen the last' of him/her
News
i100
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Data/ MI Analyst

£25000 - £30000 Per Annum: Clearwater People Solutions Ltd: Our client are cur...

Project Manager with some Agile experience

£45000 Per Annum: Clearwater People Solutions Ltd: Our client based in Chelmsf...

PPA Cover Teacher

£110 - £130 per day + Competitive rates of pay: Randstad Education Reading: Pr...

Behaviour Support Worker

£60 - £65 per day: Randstad Education Sheffield: SEN Education Support Worker ...

Day In a Page

A roller-coaster tale from the 'voice of a generation'

Not That Kind of Girl:

A roller-coaster tale from 'voice of a generation' Lena Dunham
London is not bedlam or a cradle of vice. In fact it, as much as anywhere, deserves independence

London is not bedlam or a cradle of vice

In fact it, as much as anywhere, deserves independence
Vivienne Westwood 'didn’t want' relationship with Malcolm McLaren

Vivienne Westwood 'didn’t want' relationship with McLaren

Designer 'felt pressured' into going out with Sex Pistols manager
Jourdan Dunn: Model mother

Model mother

Jordan Dunn became one of the best-paid models in the world
Apple still coolest brand – despite U2 PR disaster

Apple still the coolest brand

Despite PR disaster of free U2 album
Scottish referendum: The Yes vote was the love that dared speak its name, but it was not to be

Despite the result, this is the end of the status quo

Boyd Tonkin on the fall-out from the Scottish referendum
Manolo Blahnik: The high priest of heels talks flats, Englishness, and why he loves Mary Beard

Manolo Blahnik: Flats, Englishness, and Mary Beard

The shoe designer who has been dubbed 'the patron saint of the stiletto'
The Beatles biographer reveals exclusive original manuscripts of some of the best pop songs ever written

Scrambled eggs and LSD

Behind The Beatles' lyrics - thanks to Hunter Davis's original manuscript copies
'Normcore' fashion: Blending in is the new standing out in latest catwalk non-trend

'Normcore': Blending in is the new standing out

Just when fashion was in grave danger of running out of trends, it only went and invented the non-trend. Rebecca Gonsalves investigates
Dance’s new leading ladies fight back: How female vocalists are now writing their own hits

New leading ladies of dance fight back

How female vocalists are now writing their own hits
Mystery of the Ground Zero wedding photo

A shot in the dark

Mystery of the wedding photo from Ground Zero
His life, the universe and everything

His life, the universe and everything

New biography sheds light on comic genius of Douglas Adams
Save us from small screen superheroes

Save us from small screen superheroes

Shows like Agents of S.H.I.E.L.D are little more than marketing tools
Reach for the skies

Reach for the skies

From pools to football pitches, rooftop living is looking up
These are the 12 best hotel spas in the UK

12 best hotel spas in the UK

Some hotels go all out on facilities; others stand out for the sheer quality of treatments