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Judge who tossed Apple-Motorola suit questions need for software patents

post #1 of 186
Thread Starter 
Judge Richard Posner, who recently dismissed Apple's patent infringement case against Motorola, believes the smartphone industry is plagued by a "proliferation of patents."

Posner, who is on the 7th U.S. Circuit Court of Appeals in Chicago, spoke with Reuters and shared his thoughts on the intellectual property war currently underway in the heavily competitive smartphone market. The judge questioned whether software patents are necessary, because developing software requires much less of an investment than pharmaceutical companies have in creating a successful drug.

"It's not clear that we really need patents in most industries," Posner said.

The 73-year-old judge volunteered to oversee the Apple-Motorola case. When the trial began, he used a court-issued BlackBerry, but he eventually switched to an Apple iPhone that he only uses for e-mail and phone calls to his wife.

As Apple and Motorola argued in court, Posner was an outspoken critic of Apple's tactics. In May, he accused Apple's lawyers of making "frivolous" and "untimely" filings.

Posner said he was actually looking forward to overseeing the case between Apple and Motorola, but he couldn't have a trial "just for fun," and he felt he had no choice but to toss out the lawsuit. Last month, the two-year conflict was brought to an end by Posner, who also ruled that Motorola could not seek an injunction against the iPhone because it had pledged to license its own patents to other companies under fair and reasonable terms.

Posner
Judge Richard A. Posner, via Wikipedia.


Posner is the most-cited U.S. legal scholar of the 20th century, according to intellectual property expert Florian Mueller of FOSS Patents. He said the appeals judge is also well known for being "outspoken."

Posner said he understands why technology companies, particularly those who make smartphones, have turned to litigation in an attempt to gain an edge over their competitors. Even the high legal fees are a "small expense" for a company like Apple, which had $110 billion in cash and securities as of the end of the March quarter.

"It's a constant struggle for survival," Posner told Reuters. "As in any jungle, the animals will use all the means at their disposal."

With the Apple-Motorola case in Chicago tossed, the next big courtroom showdown in the smartphone patent wars will be the trial between Apple and Samsung. This week, those two companies pared down their patent infringement claims against one another in preparation for the start of their trial in California on July 30.
post #2 of 186

Hmm...see, I think judges aren't always necessary in court cases...especially those with litigation between tech companies.

post #3 of 186
How can you be so smart and so wrong? Patents are the lifes-blood of innovation. Without them, we'd eventually be ruled by oligarchs, since power would centralize as competition dropped away. Patents mean the pirates only win sometimes, not always. Doh!
post #4 of 186
He may be right, but his editorializing on the subject he is litigating makes me think we might be better served by his turning in his judicial robes in exchange for a Congessional seat.
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post #5 of 186
Quote:
Originally Posted by Sacto Joe View Post

How can you be so smart and so wrong? Patents are the lifes-blood of innovation. Without them, we'd eventually be ruled by oligarchs, since power would centralize as competition dropped away. Patents mean the pirates only win sometimes, not always. Doh!

Why wouldn't copyright laws fill the need quite nicely if the concern is truly "copying"?

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post #6 of 186

"It's not clear that we really need patents in most industries," Posner said.
 

I didn't read the entire text of the speech, but this line is troubling in the context of his just having thrown out a patent-related case.  It's not a judge's job to decide what laws we "really need" or should have.  It's his job to fairly apply the laws that we do have.  This certainly raises the question as to whether he stepped over that line in this case.  The fact that he "only uses his iPhone for mail" is somewhat troubling too.  Doesn't sound like the best guy to understand the implications of software innovation.  It's also troubling that he didn't get the Apple-Motorola case by the luck of the draw but went out of his way to take the case in the first place.  He used his influence to take a high-profile software patent case; he dismisses said case; and then goes on the record saying that he doesn't believe we actually need software patents.  Well, perhaps we don't need judges legislating from the bench either.

post #7 of 186

ATTENTION DEVELOPERS:

 

I hope you're sitting before you read this.

 

 

Quote:

Originally Posted by AppleInsider View Post

The judge questioned whether software patents are necessary, because developing software requires much less of an investment than pharmaceutical companies have in creating a successful drug.
 

 

 

Interesting. 

post #8 of 186

I think it's a bit insulting for him to say they are doing it only as a law of the jungle type tactic. There are such things as truly innovative UI elements, and truly innovative software algorithms, and people should be rewarded for inventing these by being given a temporary monopoly. It's not patents as such that are the problem, it is the poor judgment of those that award patents, who can not seem to tell the true innovations from the chaff.

post #9 of 186
Quote:
Originally Posted by malax View Post

The fact that he "only uses his iPhone for mail" is somewhat troubling too.  Doesn't sound like the best guy to understand the implications of software innovation.

 

Good post. All of it. I just quoted a part of it for emphasis. 

 

It sounds as if Posner doesn't really care about software. He might be bringing a "whatever, as long as it sends my e-mail" mentality into a judicial context. 

 

Which is dangerous, to say the least, and is quite a drop-kick in the face to all developers. 

 

If Posner would have thrown these remarks in, say, Bertrand Serlet's direction, Posner would likely have been left without a leg to stand on. 

post #10 of 186

Like most (really almost all) lawyers, judges, politicians and other power brokers, who are mathematically and scientifically illiterate, Posner was an English major (others of like ilk are history or political "science" or journalism or business majors) in college, then got his law degree from Harvard. He's very persuasive among the substantively incompetent. 

 

Addendum:

However, substantive mastery of math and the sciences is no guarantee of quality thinking outside of that particular area. The habits of thought that brought this mastery must likewise be applied to the soft areas. I assume, without evidence, that a majority of those commenting on this site have at least mastered some aspects of IT. It is therefore disappointing to read the opinions and confusion expressed about IP laws: trademarks, copyrights (literature and computer programs, algorithms), patents (there are many kinds (business methods, utility, design, biological)), trade secret, NDAs (contracts). Different IP laws protect different kinds, and properties of IT products. 

 

You all really need to put some effort into the IP areas, and stop making statements regarding these areas until you do. 

 

As someone who has earned mathematics, science and legal degrees and skills, I understand the hard work necessary to have acquired some degree of mastery in these areas, but there is no shortcut. IP laws are quite difficult, made more so by opinions of those in power and with influence without any STEM knowledge. 


Edited by waldobushman - 7/5/12 at 9:28am
post #11 of 186
I love it. Good old AppleInsider members telling us how it should be.

I know what, how about becoming a great man/woman such as Posner so people actually take note of what you say instead of taking part of the eternal forum circle jerk?
"Very disappointing to have people judging something without all the facts." - charlituna.
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"Very disappointing to have people judging something without all the facts." - charlituna.
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post #12 of 186

It's funny - I was just thinking how the legal system is plagued by a proliferation of laws...

 

I wonder whether Judge Judy is retiring soon...?  It'd be nice to find just the right spot for this gentleman's dotage.

post #13 of 186
Well said! This is one big problem with the current judicial system, a lack of respect for the law. The broad use of the phrase "most industries" is extremely troubling and may be an indication that the judge is loosing his grip on reality. It is about time we take a second look at the long terms judges have on the bench, the fact is age brings with it a lost of cognitive ability and this seems to be a factoring this case.


Quote:
Originally Posted by malax View Post

"It's not clear that we really need patents in most industries," Posner said.

 
I didn't read the entire text of the speech, but this line is troubling in the context of his just having thrown out a patent-related case.  It's not a judge's job to decide what laws we "really need" or should have.  It's his job to fairly apply the laws that we do have.  This certainly raises the question as to whether he stepped over that line in this case.  The fact that he "only uses his iPhone for mail" is somewhat troubling too.  Doesn't sound like the best guy to understand the implications of software innovation.  It's also troubling that he didn't get the Apple-Motorola case by the luck of the draw but went out of his way to take the case in the first place.  He used his influence to take a high-profile software patent case; he dismisses said case; and then goes on the record saying that he doesn't believe we actually need software patents.  Well, perhaps we don't need judges legislating from the bench either.
post #14 of 186
Quote:
Originally Posted by waldobushman View Post

Like most (really almost all) lawyers, judges, politicians and other power brokers, who are mathematically and scientifically illiterate, Posner was an English major (others of like ilk are history or political "science" or journalism or business majors) in college, then got his law degree from Harvard. He's very persuasive among the substantively incompetent. 

 

History Major here (double, in Classics and Theology)

 

I'm quite happy to be persuasive among the substantively incompetent.   ;)

 

Anyway, jokes aside, the problem seems to be that in the realm of software and related fields, technical knowledge in this area (or better yet, expertise) would *really* be an advantage when applied in a judicial context.

 

It would be nice if an "advisory panel" comprised of people like Bertrand Serlet or Jean-Marie Hullot existed to assist the courts in matters such as these. But that, too, costs time and money. Of course, that's why "expert witnesses" exist, but I doubt it's customary to use them in typical patent cases. 

post #15 of 186
Quote:
Originally Posted by Gatorguy View Post

Why wouldn't copyright laws fill the need quite nicely if the concern is truly "copying"?

If there were a rational way to apply copyright to design and other features, it might, but since reverse engineering is so easy and these things aren't currently protected by copyright, then, no copyright laws would not protect innovation from vultures like Google. Besides, Google doesn't respect copyright law either, so what would be the difference?

Also, copyrights, if the law were properly amended to protect software innovation and hardware design, last a lot longer than patents. But overall, it's a simplistic, inadequate solution you suggest.
post #16 of 186

I can not believe how much of a dufus this judge is

He obviously has no clue how the tech industry works.  It only takes a few dollars to develop a software patent vs hundreds of millions when it comes to pharmaceutical companies.  Obviously we know how his pockets are lined. 

 

This guy obviously has no interest in the tech industry unless some company comes along and pockets him a few million in cash and then maybe he would sway the votes or change his mind or make a trip to Vegas or something stupid like that. 

 

I always respect the opinion of elders because of their knowledge and experience.  But in this case, I think this guy needs an very long and extended vacation.  Apple should have this guy removed from the case and have another judge in place who understands technology. 

 

I have always said that when it comes to the technology business, people who have no background whatsoever related to any field in technology SHOULD NOT BE IN THE BUSINESS OR AFFILIATED WITH THE BUSINESS.

 

AND THIS IS WHAT IS DESTROYING OUR TECHNOLOGY INDUSTRY....BONEHEAD IDIOTS WHO KNOW NOTHING ABOUT OUR INDUSTRY THAT SHOULD NOT BE THERE TO BEGIN WITH.

 

There enough said.  Now I can go back to work and code some more.

post #17 of 186

Patents should be reviewed by a body of peers for validity, accuracy, and applicability before being granted. The problem is frivolous patents have been granted because the person granting them is not an expert in the field.

post #18 of 186

I couldn't agree more Gustav
 

post #19 of 186
Quote:
Originally Posted by AppleInsider View Post

The judge questioned whether software patents are necessary, because developing software requires much less of an investment than pharmaceutical companies have in creating a successful drug.
"It's not clear that we really need patents in most industries," Posner said..

Wh… wh… wait, wait, let… wait, he…

He says they're not necessary… because there's LESS MONEY INVOLVED?!

That can't be what he means. That has to be a misquote.

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post #20 of 186
The man just demonstrated that he is too ignorant to sit on the bench and you call him a great man. Now who here has an ethical problem. Real men speak up when others are in the wrong no matter their station in life.

Posters comments honestly sound like those of an old man loosing his grip on his facilities. If he had focused on software patents he may of had a valid point or two, instead he said patents where questionable for most industries. That is totally asinine. More so even if his point was valid, it is his job to enforce the law not make law.

There is nothing great about a man hanging on past his ability to execute his job correctly and rationally. If nothing else this is a clear sign that we need to get these old people out of the judicial system or at least review their mental competence as they age.
Quote:
Originally Posted by GalaxyTab View Post

I love it. Good old AppleInsider members telling us how it should be.
I know what, how about becoming a great man/woman such as Posner so people actually take note of what you say instead of taking part of the eternal forum circle jerk?
post #21 of 186

Yes, his past scholarship and jurisprudence are stunningly impressive, and have had wide impact.

 

But when he starts to make silly statements like these, one has to wonder if he is approaching his sell-by date.....

post #22 of 186

"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying."

 

-John Carmack
 

post #23 of 186
Quote:
Originally Posted by GalaxyTab View Post

I love it. Good old AppleInsider members telling us how it should be.
I know what, how about becoming a great man/woman such as Posner so people actually take note of what you say instead of taking part of the eternal forum circle jerk?

 

There's no need to be blinded by expertise. 

 

Posner is a "great man", obviously. He's educated and a leader in his field. So were the participants at the Wannsee Conference (distinguished lawyers, legal scholars, legislators.) But that's for a different thread. 

 

JUDICIAL INCOMPETENCE is nothing new. Misconduct is nothing new, either.

 

http://ideas.time.com/2012/03/12/when-judges-are-racist/

 

 

And frankly, if some of the top (perhaps older) legislators in the country have trouble understanding this "internet thing", it isn't completely beyond the pale to imagine that this problem might affect even the cream of the legal profession. 

 

Some of us here have the sneaking suspicion that Posner is tired of software patent cases because he doesn't appreciate the impact of software, and this might influence his opinions, which have an even chance of finding their way into his adjudication. Especially since he's known to be "outspoken." So if every judge has an opinion, this one will *really* have one. And depending on his interests, it might not be the most informed opinion. 

post #24 of 186

He's a judge, just one judge, and that's just his opinion. There are many judges out there, and judges do not always agree.

 

And why would he eagerly volunteer for a particular case, especially since he seems to be very willing to share his opinions on the matter? Maybe he has an agenda and ulterior motives.

post #25 of 186
Quote:
Originally Posted by Quadra 610 View Post

 

 

Interesting. 

 

Well, the problem is that some kind of protection is needed. How can I otherwise compete with a larger shop, if they can systematically steal off of my ideas?

post #26 of 186

It's also quite funny how Fandroids are praising this judge all of a sudden, yet they were completely trashing that other judge who granted the injunctions against Samsung recently.

post #27 of 186
Quote:
Originally Posted by Sacto Joe View Post

How can you be so smart and so wrong? Patents are the lifes-blood of innovation. Without them, we'd eventually be ruled by oligarchs, since power would centralize as competition dropped away. Patents mean the pirates only win sometimes, not always. Doh!

 

"I refute it thus!" he said, kicking the extraordinary polarization of wealth on our sorry planet.  

 

We are ruled by oligarchs who use their centralized power to stifle innovation with monopolies, though "plutocrats" would be a more accurate term.

post #28 of 186
post #29 of 186
Quote:
Originally Posted by Gatorguy View Post

Why wouldn't copyright laws fill the need quite nicely if the concern is truly "copying"?

A patent runs for a shorter length of time than a copyright. Per wikipedia, in most of the world, the default length of copyright is the life of the author plus either 50 or 70 years. A patent is for twenty years.
post #30 of 186
Quote:
Originally Posted by Gatorguy View Post

Why wouldn't copyright laws fill the need quite nicely if the concern is truly "copying"?

Because software does not protect in any way what the software does.  If I systematically rewrite code to do exactly what the original does, using minor variations from the original, I have not violated any copyright.

 

If I copy all the names and numbers from the phone book and publish a phone book of my own, with my own header and format, I do not violate the original copyright.

 

Copyright is totally ineffective for ideas or fact embedded in the words or symbols.

post #31 of 186
Quote:
Originally Posted by Tallest Skil View Post

Wh… wh… wait, wait, let… wait, he…
He says they're not necessary… because there's LESS MONEY INVOLVED?!
That can't be what he means. That has to be a misquote.

The man has clearly lost it mentally. It would have to be massive misquote as the whole piece indicates to me that the judge doesn't have a clue about the patent system. One can argue about the wisdom of software patents but this guys comments are so broad as to invalidate the whole concept of patents. The whole point of patents is to protect the developer of a product by giving him exclusive rights to his ideas for a fixed time. It effectively protects the small time developer against those with money.

People need to think really hard about the stupidity expressed by this judge. Take the example of a guy that invents something in his garage, is his right to a patent now dismissed because he spent little money to develop said patent? The attitude expressed by this judge should be scary to anyone anywhere that develops new technology.

I have a hard time believing this is a misquote. Rather it just seems to indicate that someone has lost his grip on reality.
post #32 of 186

Posner's right. What we need are strong copyright and trademark laws - patent laws are too arbitrary, too difficult to enforce, and end up creating these huge legal deadlocks. I think that the comparison to pharma is correct - trademark laws aren't going to protect a drug that a company spent $500 million bringing to market, when a generic company can synthesize it for $2 a pill.

post #33 of 186
Quote:
Originally Posted by Eternal Emperor View Post

 

Well, the problem is that some kind of protection is needed. How can I otherwise compete with a larger shop, if they can systematically steal off of my ideas?

 

Now either you and I are misunderstanding Posner, or he just doesn't care about your particular concerns as a developer. It seems your industry appears, let's say, "frivolous" to him, because any old software interface will do, as long as he can check his mail. It doesn't matter. It's all just pretty little pictures and words that do stuff when you click on them. Right? It's all the same anyway. Right? I mean, who really cares how the software looks and feels? Who really cares about all the "little things" that add up to really and truly differentiate software from one another?

 

Your "investment" in your ideas doesn't amount to much because it isn't on the level of an industry that REALLY matters to human-kind, like pharmaceuticals. So: your own little venture is both without much financial risk, and also unworthy. 

 

How do you like THAT situation? Does that make you feel good?

post #34 of 186

Maybe he should give up the bench and run from congress.  Congress is where we change laws.  Does he believe software patents are unconstitutional?  

post #35 of 186
Quote:
Originally Posted by Drealoth View Post

I think that the comparison to pharma is correct - trademark laws aren't going to protect a drug that a company spent $500 million bringing to market, when a generic company can synthesize it for $2 a pill.

And what about Apple? They spent a pretty penny too on developing their phone and other devices. They built all sorts of expensive test chambers etc. And along comes other companies trying to release their own generic versions of Apple's innovation.

post #36 of 186
Quote:
Originally Posted by rbryanh View Post

"I refute it thus!" he said, kicking the extraordinary polarization of wealth on our sorry planet.  

We are ruled by oligarchs who use their centralized power to stifle innovation with monopolies, though "plutocrats" would be a more accurate term.

If that were true, then there'd be no power struggle. The oligarchs wouldn't find Citizens United necessary, because we wouldn't have elections in the first place.
post #37 of 186
Quote:
Originally Posted by anantksundaram View Post

Yes, his past scholarship and jurisprudence are stunningly impressive, and have had wide impact.

But when he starts to make silly statements like these, one has to wonder if he is approaching his sell-by date.....

Well past his sell by date!

What is troubling here is his overly broad dismissal of the value of the patent system. It is extremely troubling that a judge that clearly doesn't get it, or has some sort of political agenda, is still allowed to sit in judgement of others.
post #38 of 186

I am not sure that Apple did not invest a lot of money and time into the iPhone et al and so I think this reflects a misunderstanding of the complexities of iPhone HW/SW innovation and integration.  However, I feel that:

 

1. SW and even hardware patents have way too low a threshold for innovation and impact.  This I think would be heathy for all industries to raise the bar and perhaps include some distinction between practicing and non-practicing entities.

2. Design needs its own protection(s) whether copyright, patent, or other distinctions or ensure originality and brand is not diminished.  

3. SEP should be allowed only if they are dramatically innovative not mere implementation choice and for those that reach that level must FRAND.

post #39 of 186

We need a constitutional amendment forbidding patents on inventions employing software, wood products, or glass.  All require entirely too little investment.

 

Anything so inexpensive hardly deserves the attention of overworked judges.

 

What were Madison and those dreamers thinking?

post #40 of 186
Quote:
Originally Posted by Gatorguy View Post

Why wouldn't copyright laws fill the need quite nicely if the concern is truly "copying"?

Because they cover different things.

Copyright protects the exact work of art or commerce. A patent protects a process, not the wording. If you take copyrighted code and simply change it around (perhaps as simply as doing the same thing in a different computer language), you would not be infringing the copyright. OTOH, if you take a patented PROCESS and do the same process with a different language, it's still an infringement.
Quote:
Originally Posted by malax View Post

"It's not clear that we really need patents in most industries," Posner said.

 
I didn't read the entire text of the speech, but this line is troubling in the context of his just having thrown out a patent-related case.  It's not a judge's job to decide what laws we "really need" or should have.  It's his job to fairly apply the laws that we do have.  This certainly raises the question as to whether he stepped over that line in this case.  The fact that he "only uses his iPhone for mail" is somewhat troubling too.  Doesn't sound like the best guy to understand the implications of software innovation.  It's also troubling that he didn't get the Apple-Motorola case by the luck of the draw but went out of his way to take the case in the first place.  He used his influence to take a high-profile software patent case; he dismisses said case; and then goes on the record saying that he doesn't believe we actually need software patents.  Well, perhaps we don't need judges legislating from the bench either.

Exactly. This one is ripe for reversal on appeal. He has taken the position that he disagrees with the law of the land and went out of his way to request a case where he could exercise his personal opinion.
Quote:
Originally Posted by Quadra 610 View Post

{that the investment is greater for creating a pharmaceutical product than a software product}
Interesting. 

His statement is absolutely true. It can cost hundreds of millions of dollars and 10 years or more to develop a single pharmaceutical product. And making even a minor modification can cost you a similar amount of money for the next round. For software, making modifications IS quite inexpensive, relatively speaking.

Of course, that simply says that his facts are correct. It doesn't justify his conclusion. I'm not aware of anything in our patent laws that requires a certain level of investment for something to be patentable.

Quote:
Originally Posted by wizard69 View Post

The man just demonstrated that he is too ignorant to sit on the bench and you call him a great man. Now who here has an ethical problem. Real men speak up when others are in the wrong no matter their station in life.
Posters comments honestly sound like those of an old man loosing his grip on his facilities. If he had focused on software patents he may of had a valid point or two, instead he said patents where questionable for most industries. That is totally asinine. More so even if his point was valid, it is his job to enforce the law not make law.
There is nothing great about a man hanging on past his ability to execute his job correctly and rationally. If nothing else this is a clear sign that we need to get these old people out of the judicial system or at least review their mental competence as they age.

More importantly, he has apparently forgotten the role of the judiciary. His job is to interpret the law as it was written by Congress and signed by the President. If he doesn't like a law, it should not affect his decision.

Now, we don't know for sure that his view affected his view. But since this isn't the first time he's said this, it creates a very strong appearance of bias - which should have been avoided at all costs.
Quote:
Originally Posted by "Apple 
[" url="/t/151104/judge-who-tossed-apple-motorola-suit-questions-need-for-software-patents#post_2140757"]He's a judge, just one judge, and that's just his opinion. There are many judges out there, and judges do not always agree.

And why would he eagerly volunteer for a particular case, especially since he seems to be very willing to share his opinions on the matter? Maybe he has an agenda and ulterior motives.

Whether he does or not, Apple will certainly use that argument in their request for an appeal.
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