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Cases like Goodyear and Motte show what the large-scale patent litigants wanted from equity: credit for their earlier victories in long enforcement campaigns, preliminary and permanent injunctive relief against infringers, quicker resolution of cases that went to a hearing without the time and expense of oral courtroom testimony, and perhaps especially—though tacitly—avoidance of juries who might be hostile to their reputedly monopolistic grants.

Not all patent plaintiffs were repeat players or large-scale litigants, but the promise of repeatable enforcement, quicker process, and injunctive relief apparently had appeal beyond the multiple-litigation setting.

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For their part, judges gained procedural efficiency, more control over the direction and disposition of patent law, and more ability to vindicate the rights of those whom they considered deserving patentees. Khan underestimates the role of patentees in pushing for equity liberalization: parties like Goodyear and Woodworth actively sought equity decision making, suggesting that it was not a forum chosen to constrain them. This suggests that whatever judges gained in terms of discretion to rein in monopolies was far outweighed by the advantages to mass enforcers of having equity procedure and bench rather than jury trials at their disposal.

This is not to say that the courts lacked overarching institutional agendas of their own. To the extent that broader judicial aims guided the shift to equity, those aims likely reflected the strain of legal and economic nationalism that held sway on the federal bench. Tyson that federal courts were not required to follow the decisions of state courts in commercial cases, opening the way for the development of a general federal common law. In any event, the dramatic pull of the liberalized equity jurisdiction for patent law was clear on the ground.

In the Southern District of New York in , nine patent suits were filed in equity compared to twenty-seven filed at law. By cases at law had largely disappeared. The pressure of large-scale enforcement and the volume of patent business in the courts pushed judges to overcome the traditional impediments and concentrate patent decision making in equity. In turn, the patentees who engaged in multiple litigation were the greatest beneficiaries of all-equity litigation.

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The shift to equity enabled them to undertake enforcement campaigns that they might not have been able to sustain—or to get past hostile juries—under common-law procedures. Soon after the shift of the s and s, the equity orientation of patent law was locked in by the Patent Act. Contra modern conventional wisdom, this was the ratification, rather than the beginning, of the all-equity phase.

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Once equity was established as the near-universal forum for patent suits, the law simply reshaped around that assumption. Finally, the history of the patent litigation explosion reveals a rich politics of the patent system. The whole area has a relatively technocratic air. In the nineteenth century, though, patent conflicts were not mere intramural disputes among inventors and manufacturers; they were often highly public matters, bound up in the heated politics of monopoly, and regular fodder for political agitation and congressional intervention.

The middle nineteenth century has historically been portrayed as a judicially driven period in patent law, during which Congress remained on the sidelines. Congressional interventions, above all in the form of private bills extending patents, were highly influential and highly controversial in the politics of patents. Vast sums were reputedly poured into extension battles by the owners of the Woodworth, McCormick, and various rubber patents. On the other side, opposition to patent extensions produced genuine popular mobilizations.

The Pennsylvania legislature was subsequently one of a number that passed resolutions against congressional approval which was ultimately denied. Given the bitterness of these battles, it is unsurprising that the principal forum for patent extensions shifted from Congress to the much more friendly confines of the Patent Office.

After the Civil War, the most active politics of patents took place in Western states. The Midwest and West were the heartland of antimonopoly politics during that period, much of it associated with the so-called granger movement—an agrarian social and political movement that fought to secure state regulation of railroads and other monopoly services in the early s. Instead, it emerged as a reaction to the leading campaigns of large-scale patent assertion.

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As reported by the agricultural historian Earl Hayter, farmers began to encounter the patent system with increasing frequency in the s. Senator William Windom declared that. There are a dozen things in your kitchen, your library, your dining room, your workshop. The largest of these campaigns provoked grassroots mobilization and political response. Various fronts sprang up against the driven-well patent. In Michigan, for example, the State Grange coordinated resistance to the driven-well patent, soliciting a dollar from every willing well user for collective defense.

Supreme Court. A much-loathed patent for a simple form of farm gate aroused opposition from granges in Michigan, Wisconsin, and Illinois, before being invalidated by the courts in In response to a congressional extension of one sewing-machine patent in , the rural press demanded the defeat of representatives who had voted for the measure. During the s and s, these collective defense efforts coalesced into a broader movement for reform of the patent laws.

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The National Grange and the state granges of Iowa and Wisconsin formed committees to consider patent reform as early as Grappling with the problems of patent litigation was central to the reform agenda. Acting on behalf of home-state legislatures and granges, Western and Midwestern senators proposed a variety of statutory changes designed to eliminate litigation of this type. These measures aimed at curtailing particular classes of litigation were joined by proposals to rein in certain kinds of heavily litigated patents.

At its peak, the agrarian patent reform movement stood a real chance of imposing dramatic statutory reform on the patent system. What made the farmers particularly dangerous to the established patent law was the emergence of an improbable ally: the railroads. As heavy consumers of invention and possessors of the deepest pockets in the industrial economy , the major railroad companies had spent the s battling a series of suits by the patentees of indispensable railroading technologies.

Despite the combination of powerful constituencies for some kind of patent reform, major statutory changes did not occur.

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Several bills passed the House of Representatives between and , some of them by wide margins. Patent reform remained a live issue in agrarian politics: various populist third parties such as the Greenback Party and American Prohibition Party included patent planks in their electoral platforms. Stymied in Congress, the political pressure on the patent system leaked out in other ways. One was in the states, where legislatures focused on curtailing the frauds that accompanied rampant peddling of patent rights. Farmers were targets not only for infringement suits but also for schemes that involved the sale of territorial patent assignments.

Another, more irregular outlet for patent politics ran through the federal executive. The catalyst for these efforts was an Supreme Court decision, Mowry v. Whitney , which decreed that a judicial proceeding for the cancellation of a fraudulent patent could only be instituted by the U. The extent to which this political climate affected judicial treatment of patents is an intriguing and, at this point, still open question. It is certainly possible to trace some lines of response to the crisis of patent law and litigation in the decades after the Civil War.

The clearest example is the reaction against opportunistic reissues, which the Supreme Court—especially in the person of Justice Bradley—led in the later s and early s. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea.

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Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts.

Among those engaged in patent litigation, judicial sensitivity to patent politics was a constant concern. Whether caused by judicial disfavor or something else, the decline of mass-farmer suits after the s took much of the sting out of populist antagonism toward the patent system.

Attempts to impose major reform of the law ceased.

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Meanwhile the end of extensions and the crackdown on reissues mitigated some of the most pungent criticisms of patent practice and likely contributed to lowering the litigation pressure as well. Gradually the growing organization of the American economy changed the context in which most suits were contested. Patent litigation by the s was much more of a tournament between companies than the individual free-for-all that it had been during the Gilded Age. Although long past, the patent crisis of the nineteenth century still seems to hang in the air.

It is striking how many themes of the s and s find echoes in responses to the modern patent litigation explosion. As detailed above, those years featured fierce reactions against aggressive patent enforcement, a familiar picture today. Patent pooling and other defensive arrangements, increasingly popular in recent years as a buffer against patent assertion, had their forerunners in organizations such as the Sewing Machine Combination and the railroad associations.

To take the old on its own terms for a moment: this Article has suggested a number of inputs to the rise and fall of the first patent litigation explosion. The defining feature of this wave of suits was the advent of large-scale patent enforcement, which began in the s and continued, in the form of massive regional and national litigation campaigns, in the decades after the Civil War. One was the state of patent law and administration, which proved especially susceptible to maximizing rights.