(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 in a recent interview with Reuters.  

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. (GOOG) via its subsidiary Motorola Mobility and Apple, Inc. (AAPL).  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.

Tiger with kill
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 in a 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 cross pollination between the trolls and the legitimate firms.  For example, Chicago Public Media and Public Radio International in the This American Life episode "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. (MSFT) Nathan Myrhvold.

Cave Troll
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. (TSE:RIM) 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
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 need 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 in 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. (KSC:005930) 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 and 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.  

Android Gingerbread Gallery App
Browser App Gingerbread
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.

Source: Reuters

"The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak." -- Robert Heinlein

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