U.S. Patent System is Broken, Declares Judge in Android v. Apple Cases
July 6, 2012 1:12 PM
comment(s) - last by
(Source: Word of the Nerd)
Veteran Judge Posner says "animals" like Apple are just exploiting the weapons an ineffectual gov't has created
"It's a constant struggle for survival. 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," states
Judge Richard A. Posner
As a sitting judge on the
Seventh Circuit Court of Appeals
who occasionally moonlights as a judge in Chicago's
U.S. District Court, Northern District of Illinois
, Judge Posner has watched the devolution of America's intellectual property system over the past several decades.
I. Google v. Apple -- A Symptom of a Broken System
The most recent disheartening blow was the trial between Google Inc. (
) via its subsidiary Motorola Mobility and Apple, Inc. (
). Both companies clung to a handful of software and hardware patents, and neither agreed to cooperate or license. The "animals" were out for only one objective -- blood.
Apple has been particularly vicious in this ecosystem, suing every major Android manufacturer in dozens of courts worldwide. But as global intellectual property systems have come to mirror the patent system of the United States due to its role as a global economic leader, Apple's most pivotal battleground has been the U.S.
Judge Posner disappointed both Google and Apple when he
threw their respective lawsuits
out of court. He said that while both companies
had legitimate infringement claims
, that he would not tolerate their refusal to license or attempts to abuse the patent system as an anticompetitive tool.
The senior justice is no spring chicken. At 73, he is one of the older and more respected voices in intellectual property law. Nominated by President Ronald Reagan to the Seventh Circuit Court of Appeals in 1981, he's kept very busy penning dozens of books on economics and intellectual property law.
Judge Posner called Google and Apple "animals" who are simply using the weapons given to them by a broken system to try to kill each other. [Image Source: Tambako]
And what all his experience has taught him is that there's little hope for software patents and other types of intellectual property to be used as anything but anticompetitive weapons.
He comments, "It's not clear that we really need patents in most industries. You just have this proliferation of patents. It's a problem."
The patent system has its advocates, but it's hard to argue that there isn't some truth in Judge Posner's observation. Smartphone makers today are compelled to patent every single feature, no matter how trivial, from animations to icons. Then they are compelled to
waste money and resources to sue each other
never ending legal war
whose ultimate goal is arguably a quest for a state-enforced monopoly.
II. The Rises of the Trolls
In addition to the actually productive companies who abuse the system to try to gain an anticompetitive advantage, the broken system has spawned
the so-called "patent troll"
-- a company that produces nothing, and exists only to sue and extort money from others.
There's a great deal of
between the trolls and the legitimate firms. For example,
Chicago Public Media
Public Radio International
This American Life
When Patents Attack
" note that one of the world's largest patent trolls,
Intellectual Ventures LLC
, is headed by the former Chief Technology Officer of Microsoft Corp. (
) Nathan Myrhvold.
Many "patent trolls" simply sue people, while producing nothing of worth.
[Image Source: New Line Cinema; Fair Use clause
TITLE 17 > CHAPTER 1 > § 107
The favorite tactic of a patent troll is to file lawsuits in such a way that it's cheaper to settle than to fight the lawsuit in court. As a result, company are bled resources that could be directed towards legitimate develop that instead serve as a feast to the leeches.
Not all branches of the software industry follow this model. For example, the internet largely avoids patent litigation. And that is fortunate. If the internet followed the smartphone model, every website button, every font, every animation would be patented and few sites would exists, because only the large and powerful could maintain a sufficient arsenal to survive.
Instead, the internet opts for a democratic/collectivist solution where everyone works on common standards that are free for all. And despite claims from some industry figures that patents are "essential" to preserving "innovation", the internet has thrived and developed with remarkably few pesky patents.
III. A "Non-Biased" Observer
Despite handing Apple its biggest defeat on American soil, Judge Posner says he's a non-biased party. He even owns an iPhone, having upgraded from his trusty Research in Motion, Ltd. (
) BlackBerry. But he comments, "I'm not actually that interested in becoming part of the smartphone generation."
The Apple suit had actually been filed in Wisconsin Federal Court -- a court known to be relatively plaintiff friendly. However, Apple's "safe bet" became anything but when Judge Posner's friends in that court accepted his request to transfer the case to the Chicago court -- his local stomping ground.
Now the ball was in Judge Posner's court.
Judge Richard Posner says the U.S. patent system is broken.
[Image Source: Abel Uribe, Chicago Tribune]
Following the dismissal, Judge Posner says he does not begrudge Apple despite his frustration and its lawyers. With
$110B+ USD in the bank
, Apple should be unharmed by the ruling, comments Judge Posner. He argues Apple doesn't
to sue people.
Apple seemingly agrees. CEO Timothy Cook recently commented, "[We have] more than we need to run the company."
IV. Cleaning Out the Junk
Not everyone agrees.
Judge Lucy Koh
U.S. District Court for the Northern District of California
(San Jose/San Francisco) has written opinions that Apple would be "irreparably harmed" if Samsung Electronics Comp., Ltd. (
) is allowed to continue to sell products that infringe on Apple's patents, such as the claim to design ownership of a rectangular tablet.
She has subsequently banned sales of the Samsung
Galaxy Tab 10.1 tablet
Galaxy Nexus smartphone
However, Judge Posner’s voice is arguably among the most respect in American intellectual property law, and his endorsement of reassessing the validity of patents in certain sectors such as software is a pivotal one.
And there are signs that his counterparts overseas are moving in the same direction. In England, a UK court has
invalidated several key European Union patents
that Apple was using to sue Android smartphone makers. The court blasted Apple in its ruling, saying it re-patented already patented ideas and patented features already found in other products.
A perfect example is Apple's
patent on a "bounce animation"
, which was narrowed in the ruling. A bounce animation is essentially a transient response, one of the most obvious kinds of animations that one could devise.
Bounce animations on an HTC EVO running Android 2.3 "Gingerbread"
In nature things seldom just stop -- they have an elastic response, overshooting and then "bouncing" back into a resting position. Thus an animation -- like the one Apple patented -- of a scrolling or pinched object "overshooting" and then "bouncing" back into place is one of the most obvious and natural ideas ever, and has been done countless times in video games since the late 1980s/early 1990s.
The UK decision represents one possible conservative route to start implementing Judge Posner's suggested reforms -- scrap redundant and obvious software patents.
There are often literally
dozens of duplicate patents
on a specific technology. And there are literally tens of thousands (or more) patents that should not have been granted due to their obviousness. Thus, before any serious moving of the patent system occurs, it might be ideal to simply clean out the "junk in the attic" so-to-speak, as the UK court did.
This article is over a month old, voting and posting comments is disabled
7/6/2012 6:21:42 PM
If a judge rules that a patent should have never been issued then shouldn't there be some form of penalty inflicted upon the issuing patent office?
If not then what's stopping the patent office from simply issuing thousands more baseless patents?
Simply "cleaning up" bad patents one at a time is hardly a solution. Some form of accountability needs to be put into place to prevent the vast majority of patent applications from even being considered.
7/8/2012 5:38:27 AM
The U.S. government has sovereign immunity. Basically, you can't sue the government unless it passes a law allowing itself to be sued. And AFAIK there are no laws allowing us to sue it for stupid patents.
7/8/2012 1:08:22 PM
Then how are States's bringing suit against the Government over Obamacare?
7/9/2012 9:17:08 AM
The States actually can't. Some governors are retarded though, so expect whining. The usual method of overturning laws is still in effect - the judiciary. And SCOTUS just ruled on the Constitutionality of the ACA and it passed muster.
"Let's face it, we're not changing the world. We're building a product that helps people buy more crap - and watch porn." -- Seagate CEO Bill Watkins
Android Win: Apple Blasted for Trolling, Sees EU Patents Decimated
July 5, 2012, 3:10 PM
Apple Granted Preliminary Injunction Against Samsung’s Galaxy Nexus
June 30, 2012, 3:10 AM
Apple Wins Galaxy Tab 10.1 Ban in U.S.
June 27, 2012, 11:28 AM
Judge Posner Dismisses Apple-Motorola Case Again, Blasts Apple
June 25, 2012, 1:44 PM
Nokia Tries to Explain Why it Handed Patents to Alleged "Troll"
June 1, 2012, 7:39 PM
Cortana Help Button is Coming Soon for $23
July 30, 2015, 5:07 PM
Quick Note: Apple Watch to Get Brick and Mortar Boost From Best Buy
July 27, 2015, 3:00 PM
Can HTC Save Its "RE Grip" Smartband After Its Inexplicable Failure Launch?
July 17, 2015, 2:29 PM
Facebook's "Moneypenny" is Cross Platform Siri on Steroids
July 15, 2015, 3:59 PM
Apple Watch Sales Have Plummeted
July 8, 2015, 5:01 PM
Consumer Reports: Galaxy S6 and iPhone 6 Can't Keep Up w/ Galaxy S5
July 6, 2015, 4:57 PM
Most Popular Articles
Exclusive: If Intel and Micron's "Xpoint" is 3D Phase Change Memory, Boy Did They Patent It
July 29, 2015, 10:52 PM
Quick Note: Apple Watch to Get Brick and Mortar Boost From Best Buy
July 27, 2015, 3:00 PM
Windows 10 to Get New Features in October Service Release 2 (SR2)
July 30, 2015, 5:50 PM
As iPad Sales Wane and Watch Flops, iPhone Saves Apple's Profit With Its Heroics
July 22, 2015, 6:13 PM
Editorial: Reddit Allows Itself to be Hijacked as a Hate Platform For Racist Bigots
July 21, 2015, 6:32 PM
Latest Blog Posts
Sceptre Airs 27", 120 Hz. 1080p Monitor/HDTV w/ 5 ms Response Time for $220
Dec 3, 2014, 10:32 PM
Costco Gives Employees Thanksgiving Off; Wal-Mart Leads "Black Thursday" Charge
Oct 29, 2014, 9:57 PM
"Bear Selfies" Fad Could Turn Deadly, Warn Nevada Wildlife Officials
Oct 28, 2014, 12:00 PM
The Surface Mini That Was Never Released Gets "Hands On" Treatment
Sep 26, 2014, 8:22 AM
ISIS Imposes Ban on Teaching Evolution in Iraq
Sep 17, 2014, 5:22 PM
More Blog Posts
Copyright 2015 DailyTech LLC. -
Terms, Conditions & Privacy Information