Judge who tossed Apple’s lawsuit against Google’s Motorola Mobility questions need for patents

“The U.S. judge who tossed out one of the biggest court cases in Apple Inc’s smartphone technology battle is questioning whether patents should cover software or most other industries at all,” Dan Levine reports for Reuters. “Richard Posner, a prolific jurist who sits on the 7th U.S. Circuit Court of Appeals in Chicago, told Reuters this week that the technology industry’s high profits and volatility made patent litigation attractive for companies looking to wound competitors.”

“Posner, 73, was appointed as a federal appeals court judge by President Ronald Reagan in 1981 and has written dozens of books, including one about economics and intellectual property law,” Levine reports. “Posner, who teaches at the University of Chicago, effectively ended Apple’s lawsuit against Google Inc’s Motorola Mobility unit last month… Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.”

MacDailyNews Take: You know, because Apple spent nothing to develop the iPhone, iPod touch, iTunes, the iTunes Store, the App Store, iPad, iOS, iCloud, and the billion-dollar data centers that power them. Furthermore, using Posner’s addled “logic,” a penniless genius who dreams up, say, a working cold fusion generator has no claim to intellectual property protection because he didn’t spend a penny.

Levine reports, “‘It’s not clear that we really need patents in most industries,’ he said. Also, devices like smartphones have thousands of component features, and they all receive legal protection. ‘You just have this proliferation of patents,’ Posner said. ‘It’s a problem.'”

MacDailyNews Take: The real problem might actually be lazy, doddering judges who can’t keep up with the rapid pace of change and/or their workloads and probably should’ve retired years ago.

“The Apple/Motorola case did not land in front of Posner by accident. He volunteered to oversee it,” Levine reports. “Federal appellate judges occasionally offer to preside over district court cases. Posner had alerted the district judges of his interest in patents, so after part of the smartphone battle landed in Wisconsin federal court, the judge there transferred the case to him.”

Levine reports, “When Posner began working on the smartphone case, he told the litigants he was ‘really neutral’ because he used a court-issued BlackBerry made by Research In Motion Ltd. He soon accepted an upgrade to an iPhone, but only uses it to check email and call his wife, he said. ‘I’m not actually that interested in becoming part of the smartphone generation,’ he said.”

MacDailyNews Take: You know what we just said about lazy, doddering judges who can’t keep up with the rapid pace of change and/or their workloads and probably should’ve retired years ago? We rest our case.

Read more in the full article here.

MacDailyNews Take: If that illogical, out-of-touch, old fool is a shining example of American jurisprudence, the country is doomed.

There may be too many questionable patents granted. There are definitely too many patent trolls. But, just doing away with patents is not the answer. Companies that create original work, such as Apple, deserve to be protected from rampant, blatant theft and slavish copying. To claim that Apple is not harmed is ludicrous. Posner seems to have forgotten the very essence of justice. He also seems to have forgotten his role as a judge which is to fairly adjudicate cases based upon the laws of the land, not to legislate from the bench.

Posner never should have hijacked the case. He should have left it to a competent judge.

Related articles:
Judge dismisses entire Apple-Moto patent suit with prejudice – June 23, 2012
Apple, Motorola should just play nice and pay royalties, suggests judge – June 21, 2012

63 Comments

          1. +1

            How can a judge that is so clearly and blatantly legislating from the bench be so highly regarded? The legislature recently passed new patent legislation, which was signed into law by president Obama. How is it that this “Judge” can make a legal ruling, and then immediately make the pronouncement of opinion that the law shouldn’t apply to some, but should apply to others? Wouldn’t this immediately place his findings, and his credibility in question?

            Our congress has an approval rating in the single digits. Based on my observations of our legal system in action over the past few years, I would say the Judicial branch is striving for the same level of incompetence!

            1. Although, I prefer the CopyLeft scenario and won’t push it on others… In this copyright game I found this statement to be fair: “Wouldn’t this immediately place his findings, and his credibility in question?”

              Yes! that is right… that is why I think this judge would have screwed up more if had not dismissed the case… He basically eliminated himself and created opportunity for appeal. Perfect scenario for a reiteration and probable win down the road for Apple.

            2. None of you people here seem to get it. This isn’t Judge Judy we’re talking here. This judge has decided more cases and actually made case law more often than any other judge now sitting on all the district courts of appeals in this country.

              He is an IP Expert and the patents that were used in this case are now DEAD on both sides…. forever. If either party would have handled this case properly the case might have remained on his docket. But we’re not talking about inventing a cure for AIDS here. We’re talking patents on ridiculous things like rounded corners and touch events for a phone.

              As far as mobile technology patents goes hardware patents usually do their job in sparking innovation. But software? Apple has a patent on a round concave button and rounded corners??? I’ll bet they paid all of $5,000 to write and apply for those patents and they’re so generic that it’s doubtful they’ll get validated.

              But he made it quite clear that Apple didn’t have proper expert testimony on damages to justify an award amount of more than a few dollars for Apple. So rather than proceed to spend more tax payer money for Apple to only possibly gain a few bucks with a fist pump win for Apple, with Motorola still not coming up with an agreeable amount on their Frand patent, Apple was most likely going to be netting $0 in the process of this trial.

              So he decided all that hassle wasn’t worth taking months of a jury and the court systems time and millions of our taxpayer dollars footing the bill to get for either one of them!

        1. At this point in time, with $100 billion in the bank, Apple has the advantage with this ruling. They can take any new invention (software or otherwise) and put it into production faster than anyone else. Pity da fool who comes up with the invention.

          Also, if software can’t be patented? Well, let’s just think about that for a second. What exactly happens to MS Office and Google’s search algorithms?

          Remember, Apple makes the big $$$ on hardware, not software.

        2. Exactly!!! They would most likely be using him as the IP expert any appeal and as a matter of law, as long as he made his judgement in accordance with the law we won’t be seeing any of these patents on either side in court ever again! ….and these are software patents. So yeah they spark innovation that’s for sure! lol…

          Because just like every software patent Apple has won on, the competition has innovated right around it. Look n Feel patents are almost impossible to win on. That was proved quite simply in the UK against Nokia along with getting several patents invalidated for all EU.

          The look has to be so close that they look cloned. That’s why they didn’t win and why look n feel patents have to be exact to prevent Cloned devices. Cloned means no one can tell the difference!

          All these major players need to come off their high horses and stop all the prissy little hair pulling scratching better fit for the Cosmetics Industry!

      1. Posner, instead of administrating justice, decides to play political games. That’s why the US justice system has gone bananas because judges become politicians.

    1. Shouldn’t this “confession” be grounds to re-open the case with maybe another judge? This time, with one that has some fresh brain matter rather than the putrid bubbling mess coming out of Posners ears.

      1. Agreed, Paul.
        I think Posner just self-eliminated his legitimacy as a patent law judge.

        Is this like a criminal court judge asking,
        “Do we really need all these laws? Why can’t people just murder and steal from each other, and the survivors be declared the winners?
        Sentencing shmentencing!”

    2. I think you’ve got it all wrong.

      The good Judge Posner just handed Apple the ability to appeal and win.

      If Posner didn’t like speed limits and acquitted someone doing 170 mph while wiping out a family of 6, the appeal would win a conviction too.

      1. (Well, criminal law doesn’t work like that, but I see your point…)

        Exactly. The moment I read this entry, I scanned the comments looking for this exact opinion. Posner should have kept his big mouth shut. Apple could very well win an appeal on the basis of his comments.

        The number one reason why Microsoft is still one company today is that the judge who ordered the breakup blabbed his opinions about the company to the press. Microsoft was able to use his comments to convince the appelate court that the order should be thrown out.

        ——RM

    1. +10 Botvinnik

      If the iPhone was under the same IP protection as the pharmaceutical companies have on drug patents… Apple would have a 7 year lead before any copycat “Andybot” OS could be released in the wild.

      NO – Posner needs a brain transplant, if anything the Tech-industry needs far more protection and stricter penalties. If not innovation is dead and the Asian manufactures will slaughter the world with “copycat everything” without second thoughts.

  1. What is it with the recent spate of judges punting on difficult issues? There are patent statutes in law. It’s their job to unravel the arguments and uphold law. It is not up to Posner to decide that patent laws are “silly” in his opinion and simply abdicate from his responsibility to make a decision based on current laws under which companies such as Apple spent big bucks to prove and acquire patents.

  2. I’ve no objection to “lazy”, “doddering”, illogical”, and “out-of-touch” as abusive adjectives to the word “fool”, but I can’t see why “old” automatically qualifies. My father is in his late eighties, is reasonably proficient on his iMac, and is neither doddering nor foolish.

    Having said that, the judges comments indeed indicate that he fails to grasp the issues surrounding the costly development of new technologies.

    1. MM, there is a major difference between the terms “old man,” which implies at least life experience and wisdom, and “old fool,” which implies neither.

      1. While I agree that there is a issue of context, the use of the term “old” here nevertheless taints the adjective and clearly associates age with foolishness.

        1. Who gives a fsck? Old fscks can complain about “ageism” as much as they want, to no avail as, blessedly, they’ll be fscking dead soon enough anyway.

  3. Sound to me like he came in with a bias and volunteered to affect the outcome- exactly what we do not need in American jurisprudence.

    Typical NeoCon. Never should have been appointed or confirmed.

    1. The first paragraph you wrote was great and made an excellent point, unfortunately you has to proceed the second paragraph and make yourself look like a raving idiot.

      1. Funny how what’s wrong for judges perceived as liberal to do is not O.K. for Conservatives.
        Example:
        Citizens United was legislating from the bench by the same Cons who in effect appointed George W Bush President without legal standing.

        I have no problem with conservative thought. What I have a problem with is crony capitalism masquerading as free market capitalism, fear-mongering for profit masquerading as national security, government intrusion into people’s bedrooms and medical privacy in a nation that claims to respect individual rights, and a party that sees the planet as a company in liquidation rather than the only home we have.

        If that makes me crazy, then so be it.

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