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The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s

Arizona Law Review, Vol. 53, pp. 165-211, 2011

George Mason Law & Economics Research Paper No. 09-19

47 Pages Posted: 6 Mar 2009 Last revised: 10 Jun 2012

Adam Mossoff

George Mason University - Antonin Scalia Law School, Faculty

Date Written: March 6, 2009

Abstract

When Michael Heller proposed that excessively fragmented property rights in land can frustrate its commercial development, patent scholars began debating whether Heller's anticommons theory applies to property rights in inventions. Do "patent thickets" exist? The rise and fall of the first American patent thicket -- the Sewing Machine War of the 1850s -- confirms that patent thickets do exist and that they can frustrate commercial development of new products. But this historical patent thicket also challenges the widely held assumption that this is a modern problem arising from allegedly new issues in the patent system, such as incremental high-tech innovation and the impact of "patent trolls." The Sewing Machine War exhibited all of these phenomena, proving that these are hoary issues in patent law. The denouement of this patent thicket in the Sewing Machine Combination of 1856, the first privately formed patent pool, further challenges the conventional wisdom that patent thickets are best solved through public-ordering regimes that limit property rights in patents. The invention and incredible commercial success of the sewing machine is a striking account of early American technological, commercial, and legal ingenuity, which heralds important empirical lessons for how patent thicket theory is understood and applied today.

Keywords: A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket, commercial trust, e-Bay v. MercExchange, follow-on inventions, Industrial Revolution, Howe, Krems, Madersperger, monopoly, Newton, Singer, Song of the Shirt, Thimonnier, Useful Arts, Weisenthal

JEL Classification: D23, K11, O34

Suggested Citation

Mossoff, Adam, The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s (March 6, 2009). Arizona Law Review, Vol. 53, pp. 165-211, 2011; George Mason Law & Economics Research Paper No. 09-19. Available at SSRN: https://ssrn.com/abstract=1354849

Adam Mossoff (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

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