Earlier this week, I posted a story about patent infringement lawsuits filed by Milwaukee against 8 companies that make or sell Lithium-Ion power tools. In that story I asked what would happen if similar suits were filed against Bosch, DeWalt, and Makita.

Phil Johnson, a contractor in SC, emailed to tell me Makita settled a similar suit with Milwaukee in 2009. He also shared his thoughts on what may already have happened behind the scenes. Here’s an excerpt from his message:

…It’s possible that DeWalt, Bosch and Makita have already negotiated for the rights to use Milwaukee’s patents on lithium ion battery technology. Look at this article from 2009 that mentions an agreement between Milwaukee and Makita “ending pending litigation regarding Milwaukee Electric Tool’s patents on its lithium-ion technology”. Also note the wording of the statement from the TTi general council: “We have taken and will continue to take appropriate action against anyone infringing our patents. This action can take the form of lawsuits or amicable negotiations to resolve the matter. Where possible, we have sought the latter, but where not possible, we must pursue court action.” This indicates that they pursue negotiated settlements first and only use lawsuits as a secondary resolution. The answer to your question in the last line of the post, “Could we someday live in a world where there was only one brand of Li-Ion power tools or where all brands had to pay royalties to Milwaukee?”, may be that the other brands are already paying royalties to Milwaukee and just passing the cost on to us, the consumer.

I searched the online records of the Eastern District Court in Wisconsin and found a pair of patent infringement suits (similar to the ones filed against 8 companies in October 2014) Milwaukee filed against Makita and Hitachi in 2009. According to the records, both suits were settled without going to trial. So my question about what might happen if Milwaukee sued other major power tool makers was off base; it already happened to Makita and Hitachi, and those companies continue to make and sell Lithium-Ion tools and batteries.

As for Bosch and DeWalt, I could find no record of similar suits having been filed against them by Milwaukee. This could mean anything: that Milwaukee has not approached these companies, that it sued them and I failed to find the records, or that it came to agreements with them without having to resort to lawsuits. Or it could be none of the above—more on that when we know.

An anonymous person posted the following comment to our original story about the 8 new patent infringement suits; I included it here because the explanation makes sense:

Milwaukee was the first major tool manufacturer to use the lithium technology for the demands of cordless power tools. A fact that carries tons of leverage. Previously, lithium battery technology ran low current devices, The number you cite is relevant to the new technology breaking though a previous barrier. I was just amazed that this is not happen earlier. Milwaukee flies under the same corporate banners many of the domestic tool manufactures so I doubt they will be affected.

The number the commenter refers to is 20 amps, the average discharge rate cited in the Milwaukee patent as the threshold beyond which there would be an infringement. The commenter also mentions brands that would not be affected. He/she is likely referring to Ryobi and Ridgid, which like Milwaukee are owned by or otherwise associated with TTi.

Doug Mahoney, a regular ToTT contributor, commented on our story on his website, ToolSnob. At the end of the piece he asked readers to drop him a line if they had any insight into the lawsuit. A seemingly knowledgeable person named Bob took Doug up on his request and posted a comment that included the following (for Doug's story and the entire text of the comment see Milwaukee Tools, Li-Ion, and Some Heavy-Duty-Lookin' Lawsuits):

Most large companies have enough patents granted to them that no one else could actually make a product. To get around nobody being able to produce and sell anything, the large companies tend to cross-license their patent portfolios to each other so that they can continue doing business.

The upshot: What I reported in the original story was new only in the sense that Milwaukee is suing additional companies. The legal battle over who has the right to produce Lithium-Ion tools has been going on since at least 2009 and two companies we know of, Hitachi and Makita, have already settled. Milwaukee was able to cut deals with those companies so it seems possible the same might happen with the 8 companies now being sued.

I missed part of the story when I failed to discover what had transpired with Hitachi and Makita. I apologize to anyone who read the original piece and took it to mean some cordless brands might go away or that this struggle over intellectual property is anything other than business as usual between power tool companies.

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