Patent Litigation Seen as a Feud System of Law Enforcement

I am currently working on a book on legal systems very different from ours; interested readers can find the draft webbed for comments on my site. This post is a first cut at something I intend to include in it.

One of the things that has struck me, looking at a wide variety of legal systems past and present, is the important role of feud—often but I think misleadingly referred to as blood feud—as a form of law enforcement. The essential logic of feud is simple: If you wrong me, I threaten to hurt you unless you compensate me for the wrong. It is a decentralized form of law enforcement. In order for it to work, it requires some mechanism that makes my threat of hurting you substantially more believable when you actually have wronged me than when you have not, in order to prevent the enforcement mechanism from being used instead for extortion. To put it differently, you need some mechanism such that right makes might.

For a simple example, consider the feud system of the Rominchal gypsies, the largest gypsy population in England, as described in Chapter 3 of Gypsy Law. If you wrong me, I threaten to beat you up. Both of us know that if you have wronged me, as judged by the norms of our community, my friends will back me and your friends won't back you, making it in your interest to either compensate me or leave town.

Feud systems (not, incidentally, the same thing as feudal systems—the words sound similar but are unconnected in both meaning and origin) are very common among human societies. In addition to the Rominchal, well recorded examples include saga period Iceland and traditional Somali. In the Icelandic case, the mechanism for converting right into might was an explicit law code and a court system. You sued the person who wronged you. If you won, the verdict was a damage payment he owed you. If he failed to pay, he had two weeks to leave Iceland, after which he was an outlaw, meaning that it was legal for you to kill him and tortious for anyone to defend him. The system functioned for about a third of a millenium—for details see the relevant chapter in my draft. The Somali version was somewhere between the Icelandic and the Rominchal, with customary law and customary mechanisms for setting up courts to arbitrate disputes—along with a fascinating system of prefabricated coalitions to deal with both paying damages and enforcing their members' claims.

Perhaps more interesting, there is good evidence that many, perhaps most, legal systems were built on top of preexisting feud systems. That includes Jewish law and Muslim law, both of which contain what I would described as fossilized evidence of a feud system, along with Anglo-American common law and Roman law.

Feud systems are not only a matter of historical interest—de facto, if not de jure, they still exist. One current example is patent litigation among modern high-tech companies such as Apple and Samsung.

Suppose Apple sues Samsung, claiming that Samsung's phones infringe some of Apples' patents.  Doing so costs Apple something, since lawyers have to be paid, but it also produces two benefits. There is some chance that Apple will win, be awarded damages, and be able to some degree to cripple Samsung's product line by refusing to license the relevant patents. And even if it loses, the uncertainty generated by the litigation will to some degree reduce Samsung's ability to compete with the iPhone.

If the legal system worked perfectly, Apple would always lose when its patents were not infringed and would be liable for the costs that its unsuccessful suit imposed on Samsung. But it does not work perfectly. The rights established by patent law are sufficiently fuzzy so that Apple has some chance of winning even when it is in the wrong. And, under most circumstances, if Apple loses it will not be found liable for costs, direct or indirect, that the suit imposed on Samsung.

Part of Samsung's response is to try to win the case in the courts. But the other part is to have or acquire a patent portfolio large enough so that it can plausibly claim that Apple infringes some of its patents, sue, and so impose costs on Apple to retaliate for the costs Apple imposes on it. As best I can tell, this is currently standard practice in the high tech world. Firms acquire portfolios of patents not primarily for their own use but as weapons with which to attack, or threaten to attack, other firms.

What I have just described is a feud system, with litigation taking the place of direct violence. Like other feud systems, its functioning depends on some mechanism making it easier to win when you are in the right, some way of converting right into might. Without that, the threat of suit can be used not to enforce rights but to extort money.

In theory, the court system provides that mechanism by making it easier to win an infringement case when your patents have actually been infringed. Absent the feud mechanism, the courts would have to work well enough so that suing innocent people on average lost money. With the feud mechanism, it is sufficient that suing innocent people and then having them counter sue you on average loses money, while suing guilty people on average makes money, even if they counter sue you—provided you have not really infringed their patents.

Whether this particular feud system works or is broken is a matter people  disagree about. Those who think it is broken describe the people they think are using it for extortion as patent trolls.

Comments welcome.