The Selden patent as discussed in IPT in 2001
The beginning of the decision reads: "The subject is most important; the interests involved, of great magnitude; the record phenomenally long; and the questions presented, complex." The decision continued: "During this long time the [. . . ] art made marked advances along different lines, and when, in [. . . ], the patent was granted, it disclosed nothing new. Others had then made the patentee's discovery and had reduced it to practice in ignorance of what he had done. While he withheld his patent, the public learned from independent inventors all that it could teach. For the monopoly granted by his patent he had nothing to offer in return. The public gained absolutely nothing from his invention, what-ever it was. From the point of view of public interest it were even better that the patent had never been granted."
The patent in question is not to a business method, nor even to such a thing as BT's claim to a hyperlink. It is not a patent to Lemelson. The patent in question is US 549,160 issued in 1895 to a Rochester lawyer named George B. Selden and the decision in question is Columbia Motor Car Co. v. C. A. Duerr, 184 F. 893 (CA 2 1911), which found, among other things, that Henry Ford's cars did not fall within the scope of the patent, mainly because Ford's cars em-ployed an engine different from that disclosed in the '160 patent.
Second, Selden, although very clever in prosecuting, was not very good at licensing. n4 Around 1897, he assigned his interests to the Electric Vehicle Company, a group perhaps not totally aligned with the interests of those selling gasoline-powered engines.
n4 To the extent that Selden's idea was not to build such a vehicle but to wait around for someone else to do so and then cash in on his patent, there is relation to Edward Bellamy's "Looking Backward" (1888), which was published between the application (1879) and issuance (1895) of Selden's patent: "Living in luxury, and occupied only with the pursuit of pleasures and refinements of life, I derived the means of support from the labor of others, rendering no sort of service in return." "In the United States there was not, after the beginning of the last quarter of the century, any opportunity whatever for individual enterprise in any important field of industry, unless backed by great capital."
In 1903, the Electric Vehicle Company joined forces with Packard and Oldsmobile to form the Association of Licensed Automotive Manufacturers (ALAM), which served as a conduit for licensing fees of ca. 1 1/4 percent on annual sales, based upon the Selden patent. Arguably, ALAM was conceived as a more pernicious entity than anything we have in the year 2001.
Henry Ford tried to join in 1903, but was rebuffed. In one version of the story, his 1903 application was denied on the basis his company was more an 'assembler of parts' than a true 'manufacturer'. Although somewhat debated, the real issue was price fixing of the cars, rather than the technology per se. Unlike today's rather tame times, there was a real issue of lawsuits against buyers. ALAM ran ads "Do Not Buy a Lawsuit with Your Automobile" and Ford, in turn, took out ads took offering to indemnify both buyers and sellers of his cars from any lawsuits claiming Selden patent infringement.
Of the patent suit itself, Ford lost at trial, but established noninfringement on appeal. More so than in today's patent suits, the news of his victory was a big deal. Ford was quoted: "Probably nothing so well advertised the Ford car and the Ford Motor Company as did this suit." After the appellate decision on the Selden patent, Ford looked to market forces to solve business problems, much as certain software entrepreneurs wish in the year 2001. However, Ford was not a continuous innovator; for example, in 1922 he remarked "It is strange how just as soon as an article becomes successful, somebody starts to think that it would be more successful if only it were different. There is a tendency to keep monkeying with styles and to spoil a good thing by changing it."
The engine disclosed by Selden was not an Otto engine:
The logic of the Columbia opinion is not difficult to understand, even by the standards of 2001. The Selden patent disclosed a constant pressure engine, in which one had slow combustion without explosion. In contrast, Ford (and others) employed a constant volume engine, in which the piston moves by explosive action. n5 184 F. at 904. The engine of Selden required a constantly burning flame. 184 F. at 905. Of the doctrine of equivalents, the court seemed to cabin the scope because of the non-pioneering nature of the invention ("The patent as so construed necessarily permits only a very limited range of equivalent forms." 184 F. at 911; "In giving weight to dissimilarities -- in saying what are substantial and what relate merely to form -- we must consider the degree of invention shown in the patent . . . " 184 F. at 912.) One seems to have the rudiments of the Graver Tank tri-partite test: "[no equivalents] because the two engines do not perform the same functions in substantially the same way." 184 F. at 915.
***Separately note footnote 41 of ANY GIVEN FORUM: A PROPOSED SOLUTION TO THE INEQUITABLE ECONOMIC ADVANTAGE THAT ARISES WHEN NON-PRACTICING PATENT HOLDING ORGANIZATIONS PREDETERMINE FORUM, 48 IDEA 247 (2008) :
See Resis, supra note 37, para. 11 (recounting the story of George Selden, the first recognized patent troll, who managed to submarine a "road engine" patent for 16 years while the auto industry blossomed).
Ref 37 is Robert H. Resis, History of the Patent Troll and Lessons Learned, 17 INTELL. PROP. LITIG. 1, Winter 2006, para. 3 & n.5.
Apparently Adam D. Kline and the editors at IDEA were unaware of the 2001 article in IPT. Separately, "Securing Innovation" appears unaware of "all of the above." Poseur.
**UPDATE. March 8, 2009. The following was submitted to Patently-O, pertaining to a post made on Patently-O on March 6, five days AFTER the above post:
Of Chiang's words --The patent itself contributes nothing useful to society, in so far as the people who actually make anything useful would have done it equally in the absence of the patent. -- note the words
--Others had then made the patentee's discovery and had reduced it to practice in ignorance of what he had done. While he withheld his patent, the public learned from independent inventors all that it could teach. For the monopoly granted by his patent he had nothing to offer in return. The public gained absolutely nothing from his invention, what-ever it was. From the point of view of public interest it were even better that the patent had never been granted. --,
which latter words were published in 1911, as discussed in "Looking Backward," Intellectual Property Today, June 2001.