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. He states he has no interest in becoming part of the smartphone generation… and that patents aren’t needed here. Now given that he’s 72 years of age and most Americans enter the “pill popping” generation at 45, isn’t it interesting the he feels it’s Big Pharma that deserves patent protection?

  2. I really liked Judge Dick’s last book. I’m going to re-publish it with my name as author. That shouldn’t be a problem, right, Judge Dick?

    “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.”

    Right, as opposed to Apple that just snaps its collective fingers and voilà–there’s your new world-beating tech gadget! Right, Judge Dick?

  3. If you look at the source of funding for drug development, the patent owners should be the American taxpayer. Or there should not be any patent protection. Jonas Salk ( Polio vaccine) said, when asked by Edward R. Murrow: “Who owns the patent on this vaccine?” “Well, the people, I would say. There is no patent. Could you patent the sun?”

    We spend way too much time pretending we believe in a free market while constraining the market to protect a legacy revenue stream.

  4. Let me go against the consensus a bit. First of all, I think that judges should enforce the law and not what they think the law should be – so to that extent I agree with people here.

    Having said that, I am largely anti software patents – and I am saying this as someone who holds several software patents. The problem is basically this –

    1. Most software patents are for essentially trivial ideas. Take a combination of well known ideas, combine them together in a slightly novel way and, voila! You can patent it. The time taken to patent this supposedly “new” idea is often not more than a couple of days.
    2. There are some truly novel ideas which deserve to get patented but the patent officials in pretty much every country are not competent enough to distinguish between ideas that are truly novel and ones that are merely slightly different from what’s out there.
    3. The duration for these patents is way too long. Something like 20-25 years is an eternity in the software business. Maybe in other fields (like pharmaceuticals) such a long duration is warranted. There is no reason to grant a 20-25 year period of exclusivity for a software invention.
    4. With the proliferation of patents, everyone sues everyone else and the only ones who make any money from this are lawyers and patent trolls. Judges and juries are totally non-technical and are totally unable to distinguish between which patents are valid and which ones are crap.

    I’d love to see a software patent system where
    1. Patents are granted much more selectively.
    2. Patents are valid for a relatively short period like say 5 years
    3. There is some kind of restriction on the ability of patent trolls that do nothing but accumulate patents are sue everyone.

    Unfortunately this may be impossible to get – so personally I think the most workable solution would be to pretty much ban software patents. What’s the incentive for people to come up with new ideas? Well, the incentive is being first to market. When Apple came out with the iPhone, there was nothing remotely like it for the better part of a year and a half (which is when the first Android handsets came out). It took even longer for something remotely competitive to come out.

    Just my $0.02.

    – HCE

    1. If you don’t believe in software patents, how could you, in good faith, apply for several software patents.

      Either you’re a coder who wants to protect his/her intellectual property or you work full time on the Linux project.

      Schizophrenic or what?

      1. To clarify – I am listed as an inventor on several patents filed by the company I work for. Even if you don’t believe in patents, there is a good reason to file for them – defensive purposes. If someone sues you, the best way of forcing them to settle is to sue them back.

        – HCE

    2. My apologizes,
      Without reading your post fully…

      One must realize, an operating system is a far
      more complicated type of software.
      The hardware and OS are considered by Apple;
      to be a seamless integration of both hardware and software;
      useless without the other.

      So how to classify this kind of software?

      Apple should do what then?
      Burn the OS on to a chip so its not software!!!

      —-

      After reading fully what you said…

      In point 1) you mention it takes only days to patent new software ideas which borrow ideas (or built form other ideas); these are novel ideas.

      Everything old is new again. Nothing is really new under the sun, when it comes to ideas. Everything stems from something else. Even new is not so new… just a spin or an other way to see things. Everything is related. New is only seen as NEW when presented in a different light.

      Is iPad a tablet – damn right it is. Whats different? It doesn’t need a pen… we use our fingers. Oh. And it runs a stripped down system derived from a scalable OS. And it was marketed totally differently compared to the Newton and Win-based Pen-Tablets. Yet, essentially one could debate for years that iPad could never have happened if not for the capacitor enabled muti-touch sensory. Or that Apple never dreamt up the NEWTON, or that they never dreamt up a voice assistance. Or that the Palm was never a spin off company from Newton. And that the iPod never had a micro-system made from shrinking OSX. Everything comes from something. Thats real innovation and there is a traceable history to defend Apple. And I’m no expert.

      In point 3) the differentiating factors from ideas already out there AND novel ideas – you say, takes the patent systems far too long to figure out if its worth accepting.

      If “novel ideas” are not traceable with regards to where the origins from which the idea is comes from or adopted from… then I must say, the patent system is clearly responsible and at fault. Else, the way things are honestly filed to be accepted need to be tighter.

      Regardless if a patent is approved, if the system passes a patent and later discovers it is infringing or stolen – higher penalties must also be in place to discourage THOSE who FILE NOVEL IDEA over NEW IDEAs – hence this sort of issue would happen far less. Discouraging people from filing based on simple Novel ideas – should not be so simple.

      In point 4) non-technical judges and lawyers. If they don’t understand things and keep up with the times, then THEY should not be handling the cases. DO you want a hear surgeon working on you who is using methods from 1915?

      Again this is the fault of people and interest in what America is creating. Lawyers and those in the patent system need to have more lawyers specializing in the specifics of the technology sectors. To better regulate it and protect it, and protect the Americans’ interests and those ideas made here, Novel or NEW.

      1. Thanks for the thoughtful reply. I mention software because that is an area I am familiar with – being a software engineer myself. What I say may apply to hardware and other technology fields but I won’t talk about them because of my lack of familiarity.

        As you can tell, I am not against the idea of patents – if the system is implemented well. My problem is that the current system is hopelessly broken and I don’t see a way for it to get better. If the only choice I have is the current system or no software patents at all, I’ll take the latter.

        – HCE

        1. It’s nice to see a comment from someone not ranting and raving about “activist judges”, etc. Your point that the patent system is broken is one that is fairly mainstream – too bad that it took a whole page of comments to actually have someone say that. While Posner may be extreme and I do not agree with his bottom line, in essence he is saying that patents system is broken. NOTE: from the article, “Posner’s idea of examining whether industries like software should receive patent protection is a mainstream one, especially in the computer industry, said John Allison, a professor at University of Texas at Austin who studies intellectual property rights.”

          Of course, the fury here relates this his judgement…while, it relates to what people believe was the basis for throwing out the case, which seems to derive from conflating his opinion about the system with going outside the law for his finding. Can any commenter actually support that notion aside from a semantic understanding of the law? Was he “legislating from the bench”? Well, I didn’t read the judgement and, even if I did, since I’m not a lawyer it might be useless for me to do so. You can find it here:
          http://www.theverge.com/2012/6/22/3111607/apple-v-motorola-judge-posner-dismisses-entire-patent-case

          From my brief reading and lack of legal knowledge, the injunctions were dismissed because of lack of proof of damage. Quoting: “Apple concedes that “[t]here isno controlling case law that prevents that exercise of discretion[over whether to exercise declaratory judgment authority] in this case.”

          Also note two quotes from the MDN-linked article:

          “When it comes to the smartphone litigation wars, Posner said tech companies should not be blamed for jumping into court since they are merely taking the opportunities that the legal system offers.
          ….
          Posner said he had been looking forward to presiding over a trial between Motorola and Apple, but had no other choice than to toss the case.”

          For those that believe this is some vendetta against Apple, that is not true.

          “He In the end his bottom line, which was that In canceling the trial, Posner said an injunction barring the sale of Motorola phones would harm consumers.

          In his own ruling, Posner also barred Motorola from seeking an injunction against the iPhone because the company had pledged to license its patent on fair and reasonable terms to other companies – in exchange for having the technology adopted as an industry standard.”

  5. This guy Posner is such a dick:

    …told Reuters this week that the technology industry’s high profits and volatility made patent litigation attractive for companies looking to wound competitors.

    Which is the OPPOSITE of what Apple is doing. Dick.

    …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.

    Negating the expensive investments in designing, writing, testing and implementing code? Dick.

    It’s not clear that we really need patents in most industries

    CLUE: ARICEPT. Dick.

    Obviously there are piles of frivolous lawsuits, including within patent law. Obviously, there are patent trolls. Obviously, certain companies file both retribution and unethical patent lawsuits (such as those from nearly ALL the companies Apple sued first).

    But Posner has fallen off the ledge of sanity. Step down now judge. Your dick head is addled beyond comprehension.

    What I will agree with: There is no need for the fracked-up POS US Patent Office we have today. It is DEADLY slow and DEADLY technology illiterate. It has to go. A working, sane and informed NEW US Patent Office is required now.

  6. MDN employees best stay quiet if they ever end up in front of this Judge. 🙂 This said, Patent Laws are silly as Apple is no different than lets’ say Mercedes-Benz in that while they invented the automobile, thank God for Henry Ford and others for having copied the technology as failing which we would all look like drones driving the same make of car!

    Apple copies at SJ never denied that fact hence not sure why the disciples get all hot and bothered with Sammy. Moto, LG and others when they pick a little bit in the Apple garden.

    Lastly, Apple Inc. is a brand and nothing else as the employees are what drives the Apple engine and they in the end own their intellectual properties. Apple is a for profit company that toys with our insatiable appetite for tech gadgets and nothing else.

  7. Posner, 73, was appointed as a federal appeals court judge by President Ronald Reagan in 1981″ GULP!!!
    “.. He volunteered to oversee it…” GULP!!!

    There are many 73’s old looking for popularity here in Italy, one is called Berlusconi and has almost destroyed our country, especially the justice sistem. He was found guilty of corrupting a judge to buy one of the biggest news and book company, Mondadori. It’s not a coincidence that he has been always a fun of Mr Regan, the actor I suppose…

    It’s time to cut that generation out of any rule in the society, except helping children to cross the street at school!!! Maybe…

    If the western world is in this disastrous situation economically and socially, is thanks to those men and women and their spoiled childs.

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