US judge questions patent system

2012-07-05 17:27

Chicago - The US judge who tossed out one of the biggest court cases in Apple's smartphone technology battle is questioning whether patents should cover software or most other industries at all.

Richard Posner, a prolific jurist who sits on the 7th US Circuit Court of Appeals in Chicago, said this week that the technology industry's high profits and volatility made patent litigation attractive for companies looking to wound competitors.

"It's a constant struggle for survival," he said in his courthouse chambers, which have a sparkling view of Monroe Harbour on Lake Michigan.

"As in any jungle, the animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem."

Posner, 73, was appointed as a federal appeals court judge by US President Ronald Reagan in 1981 and has written dozens of books, including one about economics and intellectual property law.

Pitched battle

Posner, who teaches at the University of Chicago, effectively ended Apple's lawsuit against Google's Motorola Mobility unit in June.

He cancelled a closely anticipated trial between the two and rejected the iPhone maker's request for an injunction barring the sale of Motorola products using Apple's patented technology.

Apple is in a pitched battle with its competitors over patents, as technology companies joust globally for consumers in the fast-growing markets for smartphones and tablet computers.

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.

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets - a benefit they would still get if there were no software patents.

"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.

Pre-emptive strike

"You just have this proliferation of patents," Posner said. "It's a problem."

The Apple/Motorola case did not land in front of Posner by accident. He volunteered to oversee it.

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.

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. He soon accepted an upgrade to an iPhone, but only uses it to check e-mail and call his wife, he said.

"I'm not actually that interested in becoming part of the smartphone generation," he said.

Motorola sued Apple in October 2010, a move that was widely seen as a pre-emptive strike. Apple filed its own claims against Motorola the same month.

In cancelling the trial, Posner said an injunction barring the sale of Motorola phones would harm consumers. He also rejected the idea of trying to ban an entire phone based on patents that cover individual features like the smooth operation of streaming video.

Industry standard

Apple's patent, Posner wrote in his 22 June order, "is not a claim to a monopoly of streaming video".

Not all judges in the patent wars share Posner's scepticism of injunctions. US District Judge Lucy Koh in San Jose, California, granted Apple two critical pre-trial injunctions against Samsung Electronics last week: One against the Galaxy Tab 10.1, and the other against the Galaxy Nexus phone.

In Friday's 101-page ruling barring the Galaxy Nexus, Koh cited the harms to Apple due to competition from phones that infringe its patent on the Siri search feature. Samsung is appealing both injunctions.

Posner said he had not read Koh's orders.

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.

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.

However, recent patent law reforms passed by the US Congress did not directly address the issue, and Allison said classifying industries for the purposes of intellectual property protection - as Posner suggests - was "completely impractical" because talented lawyers could game the system.


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.

Given the large cash reserves in Silicon Valley, high legal fees are not a deterrent. Apple, for instance, had $110bn in cash and securities as of March 31.

"It's a small expense for them," Posner said.

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.

"I didn't think I could have a trial just for fun," he said.

  • BruceMubayiwa - 2012-07-05 22:26

    The legislation has certainly not kept pace with the developments in technology. I think only a complete revamp of the laws can remedy this. However, with so much at stake, a revamp of legislation seems very unlikely. The unintended effect of patents, which is the stiffling of innovation, is what we now have. With all the litigation and counter-litigation it seems the whole thing is becoming a farce really, a circus.

  • michele.holmes.1238 - 2012-07-06 09:16

    Perhaps they should look at a limited time patent, say a year or 6 months. Being the first will give the developer a HUGE advantage amongst consumers which will still encourage new development and progress. Not allowing an advantage for the "firsts" may well slow progress down, and we would all hate that. That being said, however, 99 year patents being enforced on software also stifles development and creates monopolies.

  • badballie - 2012-07-06 15:12

    No patent should be valid for more than a year, patents have nothing to do with the common good and everything to do with generating huge amounts of wealth for individuals at the expense of the masses. In its most basic form a patent is a mechanism of capitalism.

      Denny - 2012-09-21 00:28

      Whether patents should form part of capitalism is actually quite disputed (free market capitalism anyway). The likes of Murray Rothbard were very opposed to them as they can be considered to be a form of government intervention creating state sanctioned monopolies. In past times the Netherlands went so far as to abolish patents altogether for this very reason. Patents can also be viewed as a mechanism which requires you to share your know-how iin return for a limited time exclusive use of that know how. Personally I'd like to see a reform of patents along the lines the Judge is alluding to.

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