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Home , Patent infringement, Patent troll, Philo Farnsworth

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History of the Troll and Lessons Learned By Robert H. Resis, Esq.

The activities of today’s patent trolls have Eli Whitney—the First ? Thomas Jefferson in a . attracted the serious attention of U.S. Eli Whitney’s cotton gin (short for engine) Jefferson replied on November 16 that “the business,1 and for good reason. The provided the means for produc- only requisite of the law now uncomplied majority of today’s tion of cotton to go from one pound of with is the forwarding a model, which 2 cases are filed by a patent troll —that is, cotton per day per worker to 50 pounds of being received, your patent may be made one whose only “business” is to generate cotton per day per worker.6 Whitney, how- out & delivered to your order immediately.” maximum patent licensing revenue via lit- ever, did not enjoy the commercial suc- In February of 1794, Whitney completed igation or the threat of litigation and who cess of his patented invention. Indeed, his the model to his satisfaction, and in March has no need for a cross-. Additional- company, which made the patented cotton he took it to to demonstrate it ly, the Federal Circuit recently held that a gins, went out of business within three in Jefferson’s office in order to receive his 11 patent troll was entitled to a permanent years of the issuance of his patent. patent. The patent that Jefferson had injunction on a business-method patent Whitney was subsequently reduced to approved November of 1793 was issued to 12 because there is “no reason to depart from suing plantation owners in the South over Whitney on March 14, 1794. the general rule that district courts will the course of many years.7 As such, By the time of patent issuance, word issue permanent injunctions against patent Whitney can be fairly identified as per- had spread throughout the South of infringement absent exceptional circum- haps the first patent troll in our nation’s Whitney’s invention. Planters were quickly 3 stances.” In 2006, it is expected that the history, even though he started out as a planting green seed cotton in vast amounts. Supreme Court will decide whether the manufacturer of his patented device. Whitney set up his company in the North 4 Federal Circuit is correct. Whitney had mechanical talent. For to make his invention, and his partner, Today’s news accounts and court deci- example, he made nails from a machine Miller, was to oversee the installation and sions involving patent trolls highlight the he built himself. Starting college late in use of and payment of royalties generated shift in the nature of the typical patent life, Whitney graduated from Yale in 1792 by the patented cotton gins in the South. infringement suit from those filed around at the age of 27. With no U.S. industry Within a short time after Whitney’s inven- 20 years ago. At the start of the Federal that suited his mechanical talents, tion in 1793, U.S. exports of cotton rose Circuit in the early 1980s, most patent Whitney accepted a position to tutor in from 0.14 million pounds per year (in infringement suits typically involved a 1792) to 17 million pounds per year (in South Carolina. Upon arrival, he discov- 13 patent owner/exclusive licensee who was ered that his promised salary would be 1800). Whitney, however, did not enjoy actively engaged in making and selling a halved. Whitney refused the position and the great commercial success provided by patented product or a product made using a his patented cotton gin because: 5 rather than return to the North, he accept- patented apparatus or method. An exam- ed an invitation from the widow of • His invention was easy to copy ple of the typical infringement suit of its Revolutionary general Nathanial Greene • His demand of one-third of the sales day is Motorola v. Hitachi, 750 F. Supp. to stay at her plantation and assist her revenue of cotton processed using his 1319 (W.D. Tex. 1990) (holding certain manager, Phineas Miller.8 patented cotton gin was much greater products were not covered under a 1986 At the Greene plantation, Whitney than cotton planters were willing to pay patent license agreement and that both par- learned that the only variety of cotton that • His company was unable to meet ties’ were valid and infringed). would grow away from a coastline was a demand, experienced a fire, and went While there has been a dramatic per- green seed variety.9 Ten hours of painstak- out of business in 1797 centage increase in the number of patent ing handwork was needed to separate one • infringement suits brought by patent He was required to file suits in the pound of cotton from a few pounds of the South, and Southern courts were not trolls, it would be incorrect to assume that 10 small green seeds. Whitney set out to willing to give him speedy justice today’s patent troll is a totally new phe- make a machine that would greatly When Congress refused to renew nomenon. Patent trolls have been around increase production. He studied the hand since the start of the U.S. patent system. Whitney’s patent, which expired in 1807, movements of workers, and within days he Whitney concluded that “an invention can Indeed, some of the most high profile built a model that separated the cotton in the precipitat- be so valuable as to be worthless to the from the seeds. .”14 The money Whitney eventual- ed patent troll suits. A review of several In October of 1793, after perfecting patent troll cases involving high profile ly received for use of his patented inven- his machine, Whitney sent a drawing of tion went to cover his attorney fees and inventions provides valuable lessons for his new invention to Secretary of State today’s patent trolls and their targets. other expenses, and he was penniless after

Number 2 • Volume 17 • Winter 2006 • American Bar Association • Intellectual Litigation • 1 “History of the Patent Troll and Lessons Learned” by Robert H. Resis, Esq., published in Litigation, Volume 17, No.2, Winterl 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Project4 3/10/06 9:52 AM Page 2

spending about 10 years in court.15 gas engine of the compression type, experiments, certainly, and invention, not The lesson learned from Whitney’s comprising one or more power cylin- improbably, would have been necessary patent experience: ders, a suitable liquid-fuel receptacle, a to determine the steps required to reor- Pigs Get Fat, but Hogs Get Slaughtered. power shaft connected with and ganize the Otto engine. arranged to run faster than the propelling Whitney should have been more realistic A patent is granted for solving a prob- wheel, an intermediate clutch or discon- as to the money he could expect from the lem, not for stating one. . . . If we were necting device, and a suitable carriage to construe the claim as the com- commercialization of his invention, given body adapted to the conveyance of per- plainants urge, we should be obliged to the ease of copying his invention, that his sons or goods, substantially as described. small start-up company could not meet go further and hold it uncertain, indefi- Ford asserted the defenses of invalidity 22 initial demand, and that he was a lone nite, and consequently invalid. and noninfringement. The court held that Northerner with relatively little wealth Selden’s patent was valid over the prior Turning to the question of infringement, seeking relief against Southern landown- art, which included two well-defined the court found that Ford’s autos having ers in Southern courts. At the very least, types of compression gas engines, that is, Otto-type engines did not infringe the Whitney should have considered offering the two-stroke “Brayton” engine and the Selden patent, which disclosed autos hav- to sell a minority ownership interest in his four-stroke “Otto” engine. In reaching this ing only modified Brayton-type engines: company to the most influential and pow- holding, the court found that “the engine While the conclusion of noninfringe- erful Southern planters, thereby giving Selden referred to in his patent for the ment which we have reached leaves the them an interest in the successful enforce- completion of his description was the patentee empty handed with respect to ment of his patent. Brayton engine” and that “Selden made his patent for the short time it has to George Selden—the First material improvements upon the Brayton run, it cannot be regarded as depriving Recognized Patent Troll structure in order to adapt to the purposes him through any technicality of the just 20 George Selden (1846–1922), a patent of a road vehicle.” Specifically, the court reward for his labors. He undoubtedly appreciated the possibilities of the motor attorney, expressly set out to be a patent noted that the engine shown in Selden’s vehicle at a time when his ideas were patent had an “inclosed” crank chamber, troll. In 1879, Selden filed a patent appli- regarded as chimerical. Had he been cation for a “road engine.” Selden pur- and the court “was satisfied that the use of able to see far enough, he might have posely delayed the issuance of his patent the inclosed crank case rendered unneces- taken out a patent as far reaching as the over the next 16 years while he waited for sary the heavy bed of plates of the former Circuit Court held this one was. But, others to develop practical automobile Brayton construction and enabled the pat- like many another inventor, while he had engine technology and automobile-making entee to dispense with other heavy and a conception of the object to be accom- companies. When he felt the time was cumbersome parts outside the case of the plished, he went in the wrong direction. right, Selden had his patent issue in 1895. cylinder.”21 The court concluded: The Brayton engine was the leading Selden then threatened suit against the The claim is held to be valid as covering engine at the time, and his attention was automobile makers and had licensing suc- a combination in a road locomotive of naturally drawn to its supposed advan- cess through his holding company, the the different elements with a liquid tages. He chose that type. In the light of Association of Licensed Automobile hydrocarbon compression engine of the events we can see that had he appreciat- Manufacturers (see figure 1). However, Brayton type; the limitation to this type ed the superiority of the Otto engine and there was one major holdout—Henry being read into the claim by the specifi- adapted that type for his combination Ford. Ford issued its own notice to counter cation to save it from invalidity. . . . his patent would cover the modern auto- mobile. He did not do so. He made the that of Selden (see figure 2). The complainants urge that it places too 16 narrow a construction upon the claim to wrong choice, and we cannot, by plac- Selden took Ford to court. The ing any forced construction upon the Second Circuit noted at the outset of its limit it to a combination of which the engine is an improved Brayton engine. patent or by straining the doctrine of decision that Selden “took full advantage equivalents, make another choice for of the periods of inactivity permitted by They say that the improvements upon the Brayton engine which Selden shows him at the expense of these defendants the rules and statutes” and “he delayed in his patent merely illustrate the alter- who neither legally nor morally owe just as long as possible the issue of the him anything.23 17 ations and changes required by com- patent to him.” pression engines generally to fit them The lessons from the Selden case are: The court stated that Selden “acted for the purposes of a light road vehicle. 1) Don’t Accept a Troll’s Position on the within his rights,” however, and that he They say, in effect, that the engine ele- Scope of the Troll’s Patent. Selden’s “merely took advantage of delays which ment of the claim is any compression “Notice” stated that his patent “controls 18 the law permitted him.” As such, the engine which has been adapted to vehic- broadly all gasoline automobiles which court stated that Selden’s patent “must be ular purposes by changes similar to are accepted as commercially practical.” viewed without prejudice and with those made in the Brayton engine. . . . Selden’s failure to discuss in his patent 19 absolute judicial impartiality.” . . . No one could learn from the [Selden] how an Otto-type engine could be modi- Claim 1 of the Selden patent (U.S. patent whether the Otto engine could be fied and incorporated into his claimed Patent No. 549,160) claimed: constructed with an inclosed crank cham- combination was fatal to his infringement The combination with a road locomo- ber, or whether the substitution of the case against Ford. tive, provided with suitable running gear gearing ratio shown in the drawing would 2) When the Facts Are on Your Side, It including a propelling wheel and steer- increase or diminish its speed. With the Pays to Make a Stand. Ford could have patent before a person skilled in the art, ing mechanism, of a liquid hydrocarbon paid a license to Selden, presumably

Number 2 • Volume 17 • Winter 2006 • American Bar Association • Intellectual Property Litigation • 2 “History of the Patent Troll and Lessons Learned” by Robert H. Resis, Esq., published in Intellectual Property Litigation, Volume 17, No.2, Winterl 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Project4 3/10/06 9:52 AM Page 3

under the same terms that many others image using an image “dissec- catch up and pass Farnsworth’s basic had agreed to pay Selden, and not been tor” he had invented.31 He filed his patent invention. This placed Farnsworth in a placed in a competitive disadvantage. application that same year.32 In 1928, he stronger negotiating position years after Ford’s win served notice to future trolls publicly demonstrated his invention. In he obtained his basic patent. that Ford would not be an easy mark.24 1929, Farnsworth eliminated all mechani- cal moving parts.33 Conclusion —Offer to History shows that patent trolls should not Sell Patent Refused In 1930, , head of RCA, arranged for Vladimir Zworykin to leave be summarily dismissed as those who do In March of 1876, Bell received his patent Westinghouse for RCA. But before not contribute anything to society. Some for a communication device for “transmit- Zworykin was to move to RCA’s research inventors are reduced to becoming trolls ting vocal or other sounds telegraphical- facility in Camden, New Jersey, Sarnoff (e.g., Whitney). Some inventors start out ly.”25 A little-known fact is that in 1877 the instructed Zworykin to visit Farnsworth’s as trolls and become competitors when owners of the Bell telephone patent offered lab in California to find out firsthand others refuse to pay a relatively small to sell it to Western Union for $100,000.26 about Farnsworth’s work. Zworykin was sum for patent rights (e.g., Bell became The response was, “What shall we do with Western Union’s competitor). Some inven- 27 instructed to approach Farnsworth “on his a toy like that?” By the time Western own, in his present capacity, as an engi- tors beat well-funded research labs (e.g., Union realized its mistake and offered neer for Westinghouse, investigating the Farnsworth beat RCA’s lab). millions for the patent, Bell Telephone possibility of a patent license,” and History also shows that corporations Company was in competition with Western Zworykin’s “next destination after San should not accept a troll’s position on Union and had sued Western Union for Francisco—Camden—was not to be dis- patent breadth, and they should take a infringement. In November 1879, rather cussed.” Sarnoff’s strategy in connection stand when the facts are on their side than risk losing in court, Western Union with television was to be the same as (e.g., Ford’s challenge against Selden). agreed to settle the infringement suit. RCA’s successful strategy in . “The History shows that corporations that con- Specifically, Western Union agreed to RCA doesn’t pay patent royalties,” sider the big picture and innovate reduce ● withdraw from the telephone business for Sarnoff allegedly told a colleague once, the risks posed by patent trolls. the duration of the Bell patents and to sell “we collect them.” When Farnsworth fin- its 56,000 to Bell’s company. ished explaining the Robert H. Resis is a principal share- Bell’s company agreed to not enter the tele- during Zworykin’s visit, witnesses heard holder with the intellectual graph business and to pay Western Union Zworykin remark, “This is a beautiful firm of Banner & Witcoff, Ltd., in Chicago. 20 percent of all royalties paid under its instrument. I wish I’d invented it.”34 The views expressed in this article are 28 former license contracts. In 1931, Sarnoff himself visited solely those of the author and should not The lessons from the Bell case are: Farnsworth’s lab. By this time RCA had be attributed to Banner & Witcoff, Ltd., 1) If You Don’t Innovate, Someone Else already invested heavily to develop a or any of its clients. The author may be Will. Western Union failed to use its posi- television system, and Sarnoff saw that reached at 312-463-5405 or rresis@ tion, wealth, and opportunity to procure Farnsworth was well ahead of RCA. bannerwitcoff.com. the services of Bell and/or others (like Knowing that Farnsworth was further Meucci) to develop the telephone. along, Sarnoff offered to pay $100,000 for Endnotes 1 2) Don’t Immediately Pass on an Farnsworth’s inventions.35 Farnsworth See Aggressive Patent Litigants Pose Opportunity to Purchase Patent Rights declined the offer. RCA then sought priori- Growing Threat to Big Business, WALL ST. J., Sept. 14, 2005, at A1, col. 5. This article notes, without Considering the Big Picture. ty to the invention claimed by Farnsworth, Western Union rejected the offer to buy among other things, “Lured by the potential by claiming that Zworykin’s 1923 patent returns, hedge funds and other institutional Bell’s patent rights because it failed to con- 36 application taught Farnsworth’s invention. investors are now bankrolling businesses that sider the big picture. In doing so, Western In 1934, the U.S. award- buy up patent portfolios,” and “[m]ore law Union turned a patent troll into the new ed priority of invention to Farnsworth.37 firms . . . are taking patent cases on a contin- telephone industry that soon superseded Farnsworth continued to invent, and he gency fee basis.” The same article states, “Critics call the small litigants ‘patent trolls’ Western Union’s telegraph industry. obtained numerous other patents relating and say they are parasites on successful busi- T. Farnsworth—the Young to television. Further, after beating RCA nesses. We finally built it up to where we start- Genius Who Invented Television in the Patent Office, Farnsworth agreed to ed to make money at it, and the patent troll Philo Farnsworth (1906–71) is the epito- cross-license patents with AT&T, which industry came along and said, ‘We want a me of the independent inventor many had developed “” for wiring piece of that,”’ says Paul Tobin, the 62-year-old Americans envision. In 1921, at the age together television networks.38 Finally, in founder and chairman of Boston Communica- 1939, RCA agreed to pay royalties of $1 tions. ‘No one comes after you until it all works. of 14, while tilling a potato field back They don’t go after the failures.’” and forth, Farnsworth conceived of an million to Farnsworth’s company for a 2 In 2004, 83 percent of nonchemical patent 29 39 approach to make television a reality. nonexclusive license. litigation cases filed against large companies Specifically, Farnsworth realized that an The lesson from the Farnsworth case is: were filed by patent trolls. IPO, Patent “Trolls” electron beam could scan a picture in hor- Patent Trolls Need to Continue to and Intellectual Property Rights Conference in izontal lines.30 Innovate. Farnsworth did not sit back after Washington, D.C., Mar. 14, 2005, David In 1927, at the age of 21, Farnsworth his first invention in 1927. In doing so, he Simon, (informal survey). This is up from 74.2 percent in 2003 and 59.7 percent in 2002, succeeded in producing the first electronic beat RCA to the punch as RCA tried to i.e., a 28 percent increase in three years.

Number 2 • Volume 17 • Winter 2006 • American Bar Association • Intellectual Property Litigation • 3 “History of the Patent Troll and Lessons Learned” by Robert H. Resis, Esq., published in Intellectual Property Litigation, Volume 17, No.2, Winterl 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Project4 3/10/06 9:52 AM Page 4

3 MercExchange LLC v. eBay, Inc., 401 patent. Whitney gave the South the technology http://www.italianhistorical.org/MeucciStory.htm. F.3d 1323, 1339 (Fed. Cir. 2005) (reversing the to enjoy cotton’s riches, and he later gave the In 1885, the U.S. sued Bell to cancel the basic district court’s denial of a patent troll’s request North the technology to win the Civil War. Eli Bell patent based on the work of others, for a permanent injunction against eBay’s adju- Whitney Museum, http://www.eliwhitney.org including Meucci. However, this suit died dicated infringement). The Federal Circuit /cotton.htm. shortly after Meucci died. Basilio Catania, The noted that an example of exceptional circum- 16 See Columbia Motor Car Co. et al. v. United States Government vs. Alexander stances is the need to use an invention to pro- C.A. Duerr & Co. et al., 184 F. 893 (2d Cir. Graham Bell, http://www.esanet.it/chez_basilio tect public health. Id. at 1338. 1911). /us_bell.htm. In 2001, the U.S. House of 4 On November 28, 2005, the Supreme 17 184 F. at 894. Representatives declared that Meucci was the Court granted certiorari to hear eBay’s appeal 18 184 F. at 895. inventor of the telephone, not Bell. See House on the injunction issue. Oral arguments to the 19 Id. Implies Bell Was Phony Inventor; Congress: A Supreme Court are expected to be made by the 20 184 F. at 906. Long-Forgotten Immigrant Wins Recognition spring of 2006, with a ruling later in the year. 21 184 F. at 907. for the Invention Credited to Bell, http://www. 5 Extrapolating the 28 percent increase in 22 184 F. at 908–09 (footnote omitted). press enterprise.com/newsarchive/2002/07/01 2002–04 (see supra note 2) back to 1984 sug- 23 184 F. at 915–16 (emphasis added). /1025499131.html. gests that the percentage of suits filed by 24 An example of Ford’s continued stance 29 , Philo Farnsworth, patent troll in 1984 was around 13.4 percent. against patent trolls is exemplified in Kearns v. http://www.time.com/time/time100/scientist 6 David G. Barker, 2005 DUKE L. & TECH. Ford (wherein Kearns sought $325 million /profile/farnsworth.html. REV., 0009, citing Stephen Yafa, The Man Who against Ford for a patented intermittent wind- 30 Id. Made Cotton King, INVENTION & TECH., Winter shield wiper system). Kearns was unsuccessful 31 Wikipedia, Philo Farnsworth, 2005, at 50–51; see also Eli Whitney Museum, in his attempt to get Ford to set him up as the http://en.wikipedia.org/wiki/Philo_Farnsworth. http://www.eliwhitney.org/inventor; and The supplier of windshield wiper systems to the 32 U.S. Patent No. 1,773,980. Cotton Gin and Eli Whitney, http://inventors. auto industry, and after 13 years of litigation, 33 This Is the “Farnovision,” http:// about.com/od/cstartinventions/a/cotton_gin.htm. he only received a jury award against Ford of inventors.about.com/gi/dynamic/offsite.htm?site 7 Eli Whitney Museum, http://www. about $10 million before taxes and attorney =http://www.farnovision.com. eliwhitney.org/inventor. fees. Matt Schudel, Accomplished, Frustrated 34 Paul Schatzkin, Farnovision Chronicles, 8 Id. Inventor Dies, WASH. POST, Feb. 26, 2005, Part 5: A Beautiful Instrument, 9 Id. http://www.washingtonpost.com/wp-dyn http://www.farnovision.com/chronicles 10 Prior to Whitney’s invention, the South /articles/A54564-2005Feb25.html. /tfc-part05.html. did not have any blockbuster crop, and slavery 25 U.S. Patent No. 174,465 (claim 5). 35 Paul Schatzkin, Farnovision Chronicles, was on the decline. Whitney’s invention led to 26 Wikipedia, AT&T, http://en.wikipedia.org Part 6: Nothing Here We’ll Need, blockbuster cotton revenues for the South, /wiki/AT%26T. Bell himself only owned 10 http://www.farnovision.com/chronicles including the unfortunate increase in slavery to shares of the 5,000 shares of the Bell /tfc-part06.html. pick the cotton and operate Whitney’s patented . The majority of shares 36 Paul Schatzkin, Farnovision Chronicles, cotton gins. Eli Whitney Museum, were owned by his two financiers, Gardiner Part 7: Suspended Animation, http://www. http://www.eliwhitney.org/cotton.htm. Hubbard (a lawyer who was also Bell’s father- farnovision.com/chronicles/tfc-part07.html. 11 Id. in-law) and Thomas Sanders, and by Bell’s 37 Id. 12 PBS, Africans in America, http://www. wife, Mabel (nee Hubbard) Gardiner, who 38 Paul Schatzkin, Farnovision Chronicles, pbs.org/wgbh/aia/part3/3h1522.htm. presumably received those shares from her Part 10: “Caught in the Crossfire,” 13 Eli Whitney’s Cotton Gin, father. Charles L. Brown, The , http://www.farnovision.com/chronicles http://www.accd.edu/sac/history/keller http://www.bellsystemmemorial.com/doc /tfc-part10.html. /Whitney/cantu.htm. /the_bell_system.doc. 39 Paul Schatzkin, Farnovision Chronicles, 14 Yafa, supra note 6, at 52. 27 FHTE Web History of Telecom- Part 11: “Tears in His Eyes,” 15 Eli Whitney Museum, http://www. munications, History of http://www.farnovision.com/chronicles eliwhitney.org/inventor.htm#two. While from 1874 to 1930, http://www2.fht-esslingen. /tfc-part11.html. Reportedly, when RCA’s vice Whitney did not directly enjoy the commercial de/telehistory/1870-.html. president in charge of patents signed the royalty success of his invention, he still benefited from 28 There is speculation that Bell’s company agreement, he had tears in his eyes—it was the being recognized as the inventor of the cotton agreed to pay Western Union the 20 percent first contract that required RCA to pay patent gin. He received a large government award to royalty partly in exchange for Western Union’s royalties to another company. See also Evan I. mass produce rifles with interchangeable parts cooperation in keeping certain prior artwork of Schwartz, Televisionary, 10.04 WIRED, Apr. using a milling machine of his creation. It ’s from seeing the light of day. 2002, http://www.wired.com/wired/archive was with his milling machine business that In 1872, Meucci (an Italian immigrant) pro- /10.04/farnsworth.html?pg=1&topic Whitney made his fortune. However, because vided Western Union with materials on his =&topic_set=; and Lyudmila Dekhtyar, of his unhappy experience in enforcing his cot- telephone, and when he asked for their return Biography of Philo T. Farnsworth, http://www. ton gin patent, Whitney never sought another in 1874, he was told they had been “lost.” slcc.edu/schools/hum_sci/physics/whatis Italian Historical Society of America, /biography/farnsworth.html.

Number 2 • Volume 17 • Winter 2006 • American Bar Association • Intellectual Property Litigation • 4 “History of the Patent Troll and Lessons Learned” by Robert H. Resis, Esq., published in Intellectual Property Litigation, Volume 17, No.2, Winterl 2006 © 2006 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.