Judge who tossed Apple-Motorola suit questions need for software patents - Page 5

Judge Posner has filed one additional document, this one commenting on an email he received from Apple counsel a few days after his dismissal of both Apple and Motorola claims with prejudice. In his reply he notes Apple trying a bit of legal trickery in an attempt to get a do-over on two of it's patent claims.

 

 "The email is from Apple and concerns the judgment of dismissal with prejudice that I directed be entered on June 22, 2012. Much of the email is taken up with rulings that I made in the course of the litigation. On appeal from a final judgment a party can seek appellate review of any interlocutory ruling that has not been rendered moot by the final judgment. There is no occasion for specifying those rulings in the judgment itself.

 

Apple refers to a January 19, 2012, email in which it said it “will move”—not that it was moving—to sever its claims relating to alleged infringement by Motorola of two patents, the ‘721 and the ‘983, and to stay further action on them in this litigation, pending the Federal Circuit’s resolution of an appeal involving the same patents in a suit between Apple and HTC. Apple v. HTC, No. 2012-1025. The exact language of the January 19 email, so far as pertinent to severance and stay, is: “Apple will move pursuant to Fed. R. Civ. P. 21 to either sever its infringement claims as to U.S. Patent Nos. 5,481,721 and 6,275,983, and/or to stay resolution of those claims pending the Court of Appeals for the Federal Circuit’s resolution of a pending appeal involving the 721 and 983 patents.” Notice that the email does not commit to sever. The email itself was thus not a motion for a severance or for a stay, and I took no action in response to it. That was five months ago and until yesterday, June 25, I had not heard a further peep from Apple about these two patents. I assumed it had abandoned its claims.

 

Apple indicates in its email that it wants me to sever those patent claims and stay action on them. Coyly, it still has not filed a motion to sever, as required by Fed. R. Civ. P. 21. The informal suggestion in the January 19 email, never followed up, of a possible future motion to sever the two patents did not survive the entry of final judgment. Keeton v. Morningstar, Inc., 667 F.3d 877, 882–83. At the hearing on June 7, I indicated my tentative decision to dismiss the entire case, yet that did not trigger a motion to sever the ‘721 and ‘983 patent claims either. That decision became final on June 22. By its inaction, which given the quality and resources of Apple’s legal team I must assume is strategic, Apple has forfeited any right to a severance.

June 26, 2012

-<Posner signature>-
United States Circuit Judge

 

Don't worry, they'll get a do-over, when Posner is overturned and removed from the case.

Clearly, you are correct. Let's say that a robber steals a woman's purse and keeps the money. The judge could deny both injunctions and throw the case out of court and it is fair to neither party (although the robber gets a break, of course). That doesn't mean that justice was served.

GoogleGuy is just happy any time Google and their licensees get away with stealing.

Yes, that's clearly an issue - and makes the entire thing appear biased. As before, there's no proof that the judge actually WAS biased, but the above action combined with some of his rulings (for example, not allowing Apple's marketing experts testify and then saying that Apple didn't prove damages) makes itl very, very likely that Apple will win their appeal.

 

If a woman gets her purse stolen (which is a criminal offense no matter how much money was in it) I have no idea how an injunction would figure into it.

 

...and still the name-calling Jr? That's something I might expect from my teenage son and his friends, but certainly not someone who wants us to believe he has a PhD. In case you forgot your own good advice just check the signature. The forums will be more pleasant for everyone if we all could just follow the rules we all agreed to.

Edited by Gatorguy - 7/6/12 at 9:13am

 

Judge Posner is still a judge, and lets agree that his understanding of the law is deeper than yours.

I'm amazed at some of the anti-Posner comments in this thread.  To suggest he is biased, losing his grip on reality, doesn't understand because he only uses his phone for email or is too ignorant to sit on the bench just because you don't agree with his comments seems bizarre to me.

 

The posters here having a debate about the actual subject, rather than the person, are very informative, so why the attacks on someone who probably has more understanding of the subject than 99.9% of any of us?

 

in regard the particular patent i highlighted, we have

 

" ... The invention relates, in another embodiment, to a computer implemented method. The method includes receiving multiple touches on the surface of a transparent touch screen at the same time. The method also includes separately recognizing each of the multiple touches. The method further includes reporting touch data based on the recognized multiple touches.

 

... The invention relates, in another embodiment, to a touch screen method. The method includes driving a plurality of sensing points. The method also includes reading the outputs from all the sensing lines connected to the sensing points. The method further includes producing and analyzing an image of the touch screen plane at one moment in time in order to determine where objects are touching the touch screen. The method additionally includes comparing the current image to a past image in order to determine a change at the objects touching the touch screen."

 

i will recant all that i written in this thread if you can convince me that Motorola violated Apple's claim and ownership to this particular "computer implemented method" and "touch screen method" at the software implementation level.

So you admit that you were wrong in all your earlier nonsense about patenting ideas?

As for the rest, the court has already determined that Motorola infringed Apple's patents.


No one is criticizing him simply because they don't agree with his comments. Rather, he is being criticized for favoring a position which is clearly contrary to the law he is supposed to interpret.

I wasn't aware that Motorola was found to be infringing, tho I can't stay up-to-date on everything. Are you perhaps confusing Judge Posner's comments as an affirmation that the patents were examined by him and ruled valid by the court, and that Motorola was proved to be infringing on them? The case never got that far AFAIK, dismissed before ever going to trial. As for your comment that he ruled contrary to the law, it's certainly far from "clearly" so IMHO. He could possibly be over-ruled by an appeal on the grounds you mentioned (remind me what grounds those were?), but I've not seen any legal scholars or patent attorneys be as certain of it as you are. Perhaps you've seen sources I have not.

Same could be said for Apple stealing notification bar. And ultimately on a screen should never be patentable... Because that's all it is.

Oh geez, enough with the notification bar please. It's been beaten to death here and elsewhere already.

 

Hmm... I must have been mistaken. I guess I confused Id Software's licensing their various graphics engines with patented innovations. My error.

From just a quick search it looked like there were some copyright claims but I didn't see patents involved. They could be there as I didn't spend much time on it. I found several mentions of open-sourcing and additional pledges to keep any licensing to a minimum until open-licensing could be complete. It seems fairly accurate to portray him as an open-source advocate rather than just another guy taking advantage of patents to enrich himself.  

 

I have nothing against skepticism and cynicism. Oftentimes it is warranted, and certainly it’s common (just look at recent Supreme Court commentary). But I think you could offer some concrete evidence of Judge Posner acting on his alleged bias in this case instead of conclusory condemnation, which frankly I find just a little too convenient and lazy. If you believe he presided with the end result in mind, please say where he did so. What rulings would have been different if this weren’t a software patent case? So far I seem to be the only one who has thrown something out there (the damages expert issue)—again which I don’t believe was the case—but I am trying to help the “skeptics” flesh out their concerns. On that issue, one way you could solidify your belief is if you identified a non-software-patent case somewhere in Judge Posner’s long history on the bench where proposed damages expert testimony was on similarly shaky ground, but he allowed it in instead of excluding it.

Obviously you don’t have to spend the effort to convince anyone of anything. I’m just pointing out my opinion that your expressed view seems more emotional than rational and trying to offer ways for you to demonstrate its rational underpinnings. But “he doesn’t like software patents, therefore he improperly threw out a software patent case” just doesn’t cut it. Let’s put it this way: if Apple were to argue bias on appeal, what would its best arguments be? And because I can assure you Apple won’t do this, a fairer but more complicated exercise is: if Apple were to argue legal and/or factual error on appeal, what would its best arguments be? Then, how would you tie those errors to your suspicion of bias? Even if you don’t have the desire to engage in this exercise, I think it’s worth considering on your own (not just you but any skeptic).

What truly needs reformation is the flawed patent system that allows such broad or basic ideas to be patented to a company. I agree every company has a right to protect what they have achieved, but really, the patent needs to protect ONLY what they achieve. Not what they have conceptualized in the toilet without a real hardware, or something very broad that encompasses even ideas beyond their creations.

Just like that last 2,000 times it was brought up, Apple didn't patent a broad or basic idea (such as unlocking a phone). They patented a very specific implementation of one way to unlock a phone. Patents must be specific and cover an implementation rather than a broad idea already, so there's no need for a change.

Since his comments are on record, Apple would be smart to use that in their future cases against whomever. As a Judge, your personal opinion means dogshit. Don't legislate from the bench.

They tell us that swiping to unlock can be in any direction, and the mere act swiping is a direct violation of their patents. Then they go and argue that a tap is a zero-length swipe. So what are other supposed to do? blow on the phone?

 

Then I am going to patent my "slide to unlock by licking" to make apple's not specific enough.

 

Btw, this is from Richard Stallman, as quoted by Marco Arment http://www.marco.org/2010/03/06/software-patents

 

 

 

This is an interesting talk about intelectual property protection in other industries (not just software or pharma) http://blog.ted.com/2010/05/25/lessons_from_fa/

 

spoiler: "in fashion industry there's very little intelectual property protection"

 

That's a really interesting talk. Specifically the fact that an industry with so little IP protection can have both massive financial success overall and the success of the industry's innovators. It is interesting that, in an environment like this, an innovator might feel compelled to create something of such high quality that it is "too difficult to copy".

Edited by gwjvan - 7/8/12 at 5:13pm

 

 

Given a choice between having respect for the opinion of one of the finest legal minds in the history of the world, and the opinion of a guy who would claim to be a Doctor of Science, but has no legal training whatsoever, I'll choose the former.

What if the software was used to keep you alive, Or even better, Installed in the Boeing  A 747  Software will be the route of our own destruction, I don't think a pill will do the same.

 

A side note if I were apple I Would pack my Bags and go to India, Just goes to show what happens when you do very well in the US, Then we'll see what happens to Wall Street this country is going down much faster than I thought, 

 

BTW I've followed Apple Since 1989 And The iPod Started it all

This Case was bigger than ( MS and Apple ) Love to find some hacker to profile this guys family to see what he got for his ? Dismissed with out prejudices.  

What if the software was used to keep you alive, Or even better, Installed in the Boeing  A 747  Software will be the route of our own destruction, I don't think a pill will do the same.

 

A side note if I were apple I Would pack my Bags and go to India, Just goes to show what happens when you do very well in the US, Then we'll see what happens to Wall Street this country is going down much faster than I thought, 

 

BTW I've followed Apple Since 1989 And The iPod Started it all

This Case was bigger than ( MS and Apple ) Love to find some hacker to profile this guys family to see what he got for his ? Dismissed with prejudices.  

 

I would say this would be an argument against IP. You become dependent on a piece of technology. You bought it and own the matter which makes up the hardware. The "information", in this sense, is just the arrangement of matter within this hardware. If someone else "owns" the information, they essentially have some ownership rights over that matter- as long as it is arranged in a certain way.

If you are saying someone else retains IP power in this scenario, you are granting them the right to rearrange (by some chain of government force) the matter which you have physical property rights to and are dependent on, and potentially render it inoperable.

 

I don't think someone would abuse the above power if they knew it would directly and greatly harm someone, but you can already see some related examples of this starting to surface:

 

http://www.change.org/petitions/let-maya-speak-for-herself

Edited by gwjvan - 7/10/12 at 5:30pm

Just curious... why go to India?

Well dude, it's a fair call. It's hypocritical to give Apple a golden ticket, when our beloved company also messes things up!