He's entitled to his own opinion, of course, but when he thinks that his opinion trumps actual law as well as the Constitution, he's wrong.
And please enlighten us to the name of the school that issued your law degree. If you don't have one, could you kindly shut the hell up and quit bitching that you didn't get the decision you wanted in the case? Judge Posner has forgotten more about law then you've ever learned.
Is that why he gets reversed by the SC so often? Or is that why he is such a respected jurist? Because he doesn't follow the law?
One doesn't need to have a law degree to see the error in his public statements. He has publicly stated that he thinks patents should not be allowed to create exclusive rights. The Constitution and statute are quite clear on the fact that patents DO provide for exclusivity. Therefore, Posner's views are in opposition to the law of the land.
And please enlighten us to the name of the school that issued your law degree. If you don't have one, could you kindly shut the hell up and quit bitching that you didn't get the decision you wanted in the case? Judge Posner has forgotten more about law then you've ever learned.
Which multibillion dollar company have you run that is at least as successful as Apple? If you can't show us one, then could you kindly shut the hell up and quit bitching about things you don't understand?
One doesn't need to have a law degree to see the error in his public statements. He has publicly stated that he thinks patents should not be allowed to create exclusive rights. The Constitution and statute are quite clear on the fact that patents DO provide for exclusivity. Therefore, Posner's views are in opposition to the law of the land.
He is one of the most respected jurists in the history of the world. You have no law degree, not even at the bottom of the class at the worst law school in the country.
I'll believe Posner before you.
Additionally, it is not uncommon to see you misquote simple statements that were read moments before your response. On a complex issue, I'll assume that you are misquoting him.
Do you have any support for your contentions? Anybody worthwhile opinions from legal scholars to back up your opinion? Or are you relying solely upon your "expertise"?
Edit: Mueller disagrees with you, not that his opinion counts for much:
Quote:
Judge Posner's skepticism of the patent system in general and of some of Apple's claims in particular is well-founded.
"Well-founded" != "in opposition to the law of the land." Quite the opposite. Well-founded, in this context, means that he is in agreement with the law of the land.
Oi. Stop the insults. There's no point continuing the argument in this fashion (or at all) unless someone has some new evidence to present. If it has all been covered until the retrial, let it die.
Or maybe I can't say the word 'evidence' because I don't have a law degree…
Yep. It's a scary decision.
1. Posner admitted infringement.
2. The patent's validity was not questioned.
3. Posner refused to even consider an injunction which is clearly allowed by law - even an injunction which gave Motorola more than enough time to fix the problem.
4. Posner argued for ongoing royalties - and then refused to order them.
5. Posner simply threw the whole matter out and sent the message that he was not interested in allowing big, rich companies to protect their intellectual property.
If this doesn't get overturned, he just single-handedly eliminated the US patent system.
Posner has gone beyond the pale, again. It truly is the end of patent enforcement if this case goes to the 7th Cir. and they uphold followed by the SCOTUS denying cert.
I wonder if Posner would be satisfied by merely poisioning the well in his Circuit, or if he would actually sit on either the appellate panel, or en bank?
I could easily see a case of this importance being heard en banc at the outset.
A man willing to ignore the Constitutional right of exclusivity afforded inventors must believe that he acts without limitation.
He is one of the most respected jurists in the history of the world. You have no law degree, not even at the bottom of the class at the worst law school in the country.
I'll believe Posner before you.
Additionally, it is not uncommon to see you misquote simple statements that were read moments before your response. On a complex issue, I'll assume that you are misquoting him.
Do you have any support for your contentions? Anybody worthwhile opinions from legal scholars to back up your opinion? Or are you relying solely upon your "expertise"?
Edit: Mueller disagrees with you, not that his opinion counts for much:
"Well-founded" != "<span style="background-color:rgb(241,241,241);">in opposition to the law of the land." Quite the opposite. Well-founded, in this context, means that he is in agreement with the law of the land.</span>
Yep. It's a scary decision.
1. Posner admitted infringement.
2. The patent's validity was not questioned.
3. Posner refused to even consider an injunction which is clearly allowed by law - even an injunction which gave Motorola more than enough time to fix the problem.
4. Posner argued for ongoing royalties - and then refused to order them.
5. Posner simply threw the whole matter out and sent the message that he was not interested in allowing big, rich companies to protect their intellectual property.
If this doesn't get overturned, he just single-handedly eliminated the US patent system.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Article 1, Section 8, Clause 8. U.S. Const.
Nobody has amended the Constitution to exclude the exclusivity component - QED, Posner is ignoring the Constitution.
I am a trial lawyer and I've argued before the late J. Giles Sullivan Rich, the first scientist/patent lawyer appointed to the Federal Circuit.
Nobody has amended the Constitution to exclude the exclusivity component - QED, Posner is ignoring the Constitution.
I am a trial lawyer and I've argued before the late J. Giles Sullivan Rich, the first scientist/patent lawyer appointed to the Federal Circuit.
You might be mistaken in your understanding on the legality of a compulsory licensing order, even in the US. See United States vs. Besser Manufacturing, 1952. If that one doesn't suit you try United States vs. Microsoft, 2002.
Here I'll break it down, this Posner guy is saying it's ok to steal from someone who's rich because unless you steal everything, at the end of the day they are still rich and can buy anything they want so no damage has been done.
This coming from someone who doesn't even know the most basic consumer law in their own country yet is in sales. You shouldn't be breaking down anything for anybody.
You might be mistaken in your understanding on the legality of a compulsory licensing order, even in the US. See United States vs. Besser Manufacturing, 1952. If that one doesn't suit you try United States vs. Microsoft, 2002.
First off, neither of the cases that you cite are "on point". Moreover, nobody here has seen fit to discuss the scope of litigation of, and between, Apple and various Android OS implementations (something I'll address after discussing your two case citations).
I also want to clearly point out that the judge in this case, Richard Posner, is sitting "by designation" and, as you well know, his normal judicial seat is as a senior-status member of the 7th Circuit Court of Appeals - the very court that would hear any appeal of J. Posner's trial rulings. This is a fact that I think is lost to the lay readers of these posts. A powerful member of the Appellate Court (arguably, the most powerful) has issued these rulings and his colleagues on the 7th Cir. will constitute the appellate panel that hears the appeal.
Turning to your two case citations:
(1) The Final Judgment in U.S. v. Microsoft is a consent decree in which the second paragraph expressly states, " AND WHEREAS, this Final Judgment does not constitute any admission by any party reframing any issue of fact or law;…" The central COA in U.S. v. Microsoft arises under the Sherman Act, antitrust law: not Title 35.
(2) Besser Mfg. Co. v. United States 343 U.S. 444 (1954) is also a pure civil action brought pursuant to § 4 of the Sherman Act with the issue of compulsory patent licensing the direct a result of antitrust acts. See,
Appellants contend that the provisions of the judgment requiring them to issue patent licenses on a fair royalty basis and requiring them to grant to existing lessees of their machines an option, on terms "mutually satisfactory to the parties concerned," (1) to terminate their lease, (2) to continue their lease, or (3) to purchase leased machines, are punitive, confiscatory and inappropriate.
However, compulsory patent licensing is a well recognized remedy where patent abuses are proved in antitrust actions, and it is required for effective relief. Hartford-mpire Co. v. United States, 323 U. S. 386, 323 U. S. 413, 323 U. S. 417-418; United States v. National Lead Co., 332 U. S. 319, 332 U. S. 338; United States v. United States Gypsum Co., 340 U. S. 76, 340 U. S. 94.
Bessler at 447
Once again the case turns on the Sherman Act and not Title 35. Both cases are inopposite to the procedural posture/remaining causes of action in the instant case.
PATENT REMEDIES (Title 35 of the United States Code)
In the instant case, Motorola Mobility, Inc. v. Apple, Inc. 11-cv-8540 (U.S.D.C. N.D. Ill), the claims remaining viable post the Court's rulings on cross motions for summary judgment are Apple's patent infringement/misuse claims - all Title 35 causes of action.
J. Posner, in the SJ ruling, held that the Plaintiff, Motorola failed to state a case as a matter of law on all of the counts then before the court. That was not the case where Apple's counterclaims for Patent Infringement/misuse were held, as a matter of law, to be valid, and infringed, as a part of J. Posner's ruling on Apple's F.R.Civ.P. 56 Motion. Moreover, J. Posner held that facts remaing in question precluded summary judgment on all issues remaining before the court (Title 35 infringement/misuse causes of action), entitled Apple to a trial on the merits before a finder of fact.
That was the procedural posture earlier this month when J. Posner first dismissed the case, sua sponte within ten (10) days of trial.
The amount in controversy is not an issue where the case turns on a federal question (28 U.S.C. § 1338 (a)), and here we have a holding by the Court that actual infringement of Apple's valid patents has occurred. Damages "shall be" awarded for infringement pursuant to 35 U.S.C. § 284
Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.
When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d) of this title.
The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstances.
Fundamentally, the law that has developed concerning patent infringement damages differs from damages available in other types of intellectual property infringement in that it has not embraced the concept of "disgorging" an infringer's profits. See, Aro Mfg. v. Convertible, 377 U.S. 476 (1964), ["[T]he present statutory rule is that only 'damages' may be recovered. These have been defined by this Court as 'compensation for the pecuniary loss he [the patentee] has suffered from the infringement ....' They have been said to constitute "the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred." Id., at 507 (1964) (citations omitted).].
While the Federal Circuit has looked to an infringer's profits as a guide to assessing damages, See, e.g. Kori Corp. v. Wilco, 761 F.2d 649 (Fed. Cir. 1985), cert. denied, 474 U.S. 902 (1985) and Beatrice Foods v. New England Printing, 899 F.2d 1171 (Fed. Cir. 1990), there is no statutory basis for the process. See, 35 U.S.C. § 284 supra. The statute clearly mandates that the finder of fact determine damages with the court assessing damages only in the absence of a jury trial.Id. Apple certainly never waived its jury demand. J. Posner's ruling in Apple's favor on Summary Judgment makes this last-minute dismissal prior to the scheduled jury trial a substitution of the Court's judgement of the measure of damages due Apple for the damage determination of a jury.
Clearly, J. Posner did not want the case heard by a jury. Posit another rationale for the precipitous dismissal months after ruling on Summary Judgment when J. Posner would have had some tangible basis for dismissing both parties? This holding is fundamentally a denial of Apple's Constitutional right to a trial by jury.
Constitutional concerns
Injunctive relief pursuant to 35 U.S.C. §283
The several courts having jurisdiction of cases under this title may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.
Arguably, J. Posner has the authority to deny a statutorily-granted right to equitable relief by the plain reading of the statute: "may grant" - but, he lacks the authority to deny a trial on the merits before a finder of fact to determine statutory damages.
At the core of the argument turns on my original citation to the Constitutional mandate of Art. I, § 8, Cl. 8, U.S. Const., "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" implemented by Congress through adoption of Title 35 of the United States Code. Where the U.S.C. or a court's holding does not adhere to the Constitutional mandate, then the statute or ruling is unconstitutional on its face, or as applied. J. Posner has clearly denied Apple the "exclusivity" right to the company's "discoveries" making both the amendments to 35 U.S.C. § 283 and his refusal to hold a trial, if, for no other reason than to determine the proper measure of damages, then the result is unconstitutional.
Furthermore, J. Posner, the father of the "Law & Economics" doctrine arising out of the University of Chicago School of Economics policy has substituted his preferred damage calculation standard without affording any deference to the holding in the landmark case, Eastman Kodak Company v. Image Technical Services, Inc., 112 S. Ct. 2072 (1992), a case frequently cited for its impact on the standard for summary judgment. It was, in chief, the beginning of the end of the ascendancy of the highly theoretical Chicago School of Economics. Instead of unsupported economic theories, the Supreme Court held that the facts would determine the ultimate issues. It is clear that J. Posner has made his factual determination in the in the absence of the jury even after ruling in Apple's favor on Summary Judgment. The holding is unprecedented and, arguably, plain error.
Multiplicity of Actions
Perhaps the more troubling aspect of the disputes between Apple and Google (via Google proxies (Motorola Mobility) and licensees (Samsung)) are the number of cases, the varying jurisdictions and authorities hearing essentially the same facts and holding differently.
A brief review of the pending actions would include the instant case as well as: Motorola Mobility, Inc. v. Apple Inc., In the Matter of Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, ITC Inv. No. 337-TA-745, 2010-10-6; Motorola Mobility, Inc. v. Apple Inc. and NeXT Software, Inc., U.S. Dist. Ct., Dist. Del., 2010-10-8; Apple Inc. v. Motorola, Inc. and Motorola Mobility, Inc., U.S. Dist. Ct., W.Dist. Wisc.(consolidated with the instant case), 2010-10-29; In the Matter of Certain Mobile Devices and Related Software, ITC Inv. No. 337-TA-750, 2010-10-29; Apple v. Motorola, 337-TA-750, 2012-3-16; Apple, Inc.; Apple Sales International v. Motorola Mobility, Inc., case 12CV0355 JLS BLM, U.S. Dist. Ct., S.D. Cal., 2012-2-10; Motorola Mobility, Inc. v. Apple Inc., In the Matter of Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, ITC Inv. No. 337-TA-745, 2010-10-6.
And, this list, while far from exhaustive, does not address cases before the European Commission and foreign states.
No End in Sight
It seems clear that Apple has a war on its hands very similar to the war that Polaroid fought against Kodak. Kodak copied Polaroid's "instant camera" and did significant damage to Land Corp. It is an apt analogy where Google is baldly attempting to leverage its way into the markets that Apple created by the use of artifice and conversion. It is unfortunate that Apple has to fight so many battles to hold onto its substantial innovations, the iPhone & iPad. Steve Jobs is famous for his promise to go to "thermonuclear war" over these Apple innovations and I think that Mr. Jobs was entirely correct. What good is masterful innovation and design if the knockoffs can invade the markets you create without bearing the cost to innovate? Apple needs to keep fighting.
Why is this battle so protracted and exists on so many fronts? Because we have a substantially different Judicial Branch in 2012 than Polaroid & Kodak did in 1984. I fully expect that the final resolution will not come through a United States judicial determination. Apple is truly a multi-national corporation and it is battling for its intellectual property rights across the entire planet. China may be the 900 lb gorilla. Well, go for it Apple! I'm long on AAPL and plan to stay there.
Excellent and detailed reply. Now you sound like an attorney.
Yes, agreed the two cases I linked are not "on point" with Judge Posner's comments, but they weren't intended to be. They were simply to note that compulsory licensing is an appropriate remedy under certain circumstances, no matter the property guarantees afforded under the Constitution. That strict guarantee has already been breached years ago. With that said, if any judge were to rule for compulsory licensing in the Apple Motorola case, with a written statement that passed muster with SCOTA, I'd like Posner's chances.
The argument for compulsory licensing, even under Title 35, is farther along than you may realize. I don't know how much study you've done on it. And it's not certainly not a new idea with at least one paper I came across from the Chicago School of Law (?) from 1935. If you're interested in that one I'll try to find it again. In any case Judge Posner isn't suggesting a new idea.
Frankly, I will belabor the point: J. Posner has made trial court rulings that, if upheld on appeal, will set the precedent that parties to a Title 35 action may properly be denied a trial on the merits by a sua sponte determination by the court that damages are de minimus and public injury is possible. If upheld on appeal (lord help us if the SCOTUS follows this holding) the precedent could find wide adoption among the federal judiciary as a docket-clearing mechanism for any civil cause of action pending before any federal trial court.
I can find no precedent, under any civil cause of action, that even comes close to the holding in the instant case. It is currently binding precedent only for other cases brought in the N.D. Ill (assuming no appeal is taken), but the holding is unprecedented in its scope. Used as persuasive authority in sister jurisdictions, absent an appeal, this holding could still wreak havoc across the entirety of our district courts.
J. Posner's ruling establishes judicial authority permitting Art. III Judges the power to deny parties their right to a trial on the merits by judicial fiat. This isn't a 12(b)(6) dismissal, nor a rule 56 dismissal, nor a dismissal by stipulation of the parties, nor any other previously recognized rule, or procedure, by which a case can be dismissed (with prejudice!); it is an act that greatly expands the trial court's authority to deny parties to litigation their fundamental right to a trial by jury, absent any mechanism to challenge the dismissal short of taking an appeal (I suppose that for a brief period writs of mandamus or prohibition may serve to reverse the holding, but I'd doubt that the circuits would permit the proliferation of the practice for very long.).
This holding is a fundamental rejection of well established principals of jurisprudence and it bodes ill for more than just the parties to the case.
Thank you again for another well-argued and polite response. I also appreciate the restatement of a point you had made but I didn't absorb from your previous post. I do understand where you're coming from a bit better now.
Comments
Court of Public Opinion says: "That was dumb."
Quote:
Originally Posted by jragosta
He's entitled to his own opinion, of course, but when he thinks that his opinion trumps actual law as well as the Constitution, he's wrong.
And please enlighten us to the name of the school that issued your law degree. If you don't have one, could you kindly shut the hell up and quit bitching that you didn't get the decision you wanted in the case? Judge Posner has forgotten more about law then you've ever learned.
Quote:
Originally Posted by jragosta
He's entitled to his own opinion, of course, but when he thinks that his opinion trumps actual law as well as the Constitution, he's wrong.
Is that why he gets reversed by the SC so often? Or is that why he is such a respected jurist? Because he doesn't follow the law?
One doesn't need to have a law degree to see the error in his public statements. He has publicly stated that he thinks patents should not be allowed to create exclusive rights. The Constitution and statute are quite clear on the fact that patents DO provide for exclusivity. Therefore, Posner's views are in opposition to the law of the land.
Which multibillion dollar company have you run that is at least as successful as Apple? If you can't show us one, then could you kindly shut the hell up and quit bitching about things you don't understand?
Quote:
Originally Posted by jragosta
One doesn't need to have a law degree to see the error in his public statements. He has publicly stated that he thinks patents should not be allowed to create exclusive rights. The Constitution and statute are quite clear on the fact that patents DO provide for exclusivity. Therefore, Posner's views are in opposition to the law of the land.
He is one of the most respected jurists in the history of the world. You have no law degree, not even at the bottom of the class at the worst law school in the country.
I'll believe Posner before you.
Additionally, it is not uncommon to see you misquote simple statements that were read moments before your response. On a complex issue, I'll assume that you are misquoting him.
Do you have any support for your contentions? Anybody worthwhile opinions from legal scholars to back up your opinion? Or are you relying solely upon your "expertise"?
Edit: Mueller disagrees with you, not that his opinion counts for much:
Quote:
Judge Posner's skepticism of the patent system in general and of some of Apple's claims in particular is well-founded.
"Well-founded" != "in opposition to the law of the land." Quite the opposite. Well-founded, in this context, means that he is in agreement with the law of the land.
Or maybe I can't say the word 'evidence' because I don't have a law degree…
At any rate, this isn't getting anyone anywhere.
+1. Thank you
Posner has gone beyond the pale, again. It truly is the end of patent enforcement if this case goes to the 7th Cir. and they uphold followed by the SCOTUS denying cert.
I wonder if Posner would be satisfied by merely poisioning the well in his Circuit, or if he would actually sit on either the appellate panel, or en bank?
I could easily see a case of this importance being heard en banc at the outset.
A man willing to ignore the Constitutional right of exclusivity afforded inventors must believe that he acts without limitation.
Article 1, Section 8, Clause 8. U.S. Const.
Nobody has amended the Constitution to exclude the exclusivity component - QED, Posner is ignoring the Constitution.
I am a trial lawyer and I've argued before the late J. Giles Sullivan Rich, the first scientist/patent lawyer appointed to the Federal Circuit.
Quote:
Originally Posted by Bought_it@AAPL
Article 1, Section 8, Clause 8. U.S. Const.
Nobody has amended the Constitution to exclude the exclusivity component - QED, Posner is ignoring the Constitution.
I am a trial lawyer and I've argued before the late J. Giles Sullivan Rich, the first scientist/patent lawyer appointed to the Federal Circuit.
You might be mistaken in your understanding on the legality of a compulsory licensing order, even in the US. See United States vs. Besser Manufacturing, 1952. If that one doesn't suit you try United States vs. Microsoft, 2002.
Links if you don't have 'em.
http://www.justice.gov/atr/cases/f200400/200457.pdf
http://supreme.justia.com/cases/federal/us/343/444/case.html
Quote:
Originally Posted by hill60
Here I'll break it down, this Posner guy is saying it's ok to steal from someone who's rich because unless you steal everything, at the end of the day they are still rich and can buy anything they want so no damage has been done.
This coming from someone who doesn't even know the most basic consumer law in their own country yet is in sales. You shouldn't be breaking down anything for anybody.
I also want to clearly point out that the judge in this case, Richard Posner, is sitting "by designation" and, as you well know, his normal judicial seat is as a senior-status member of the 7th Circuit Court of Appeals - the very court that would hear any appeal of J. Posner's trial rulings. This is a fact that I think is lost to the lay readers of these posts. A powerful member of the Appellate Court (arguably, the most powerful) has issued these rulings and his colleagues on the 7th Cir. will constitute the appellate panel that hears the appeal.
Turning to your two case citations:
(1) The Final Judgment in U.S. v. Microsoft is a consent decree in which the second paragraph expressly states, " AND WHEREAS, this Final Judgment does not constitute any admission by any party reframing any issue of fact or law;…" The central COA in U.S. v. Microsoft arises under the Sherman Act, antitrust law: not Title 35.
(2) Besser Mfg. Co. v. United States 343 U.S. 444 (1954) is also a pure civil action brought pursuant to § 4 of the Sherman Act with the issue of compulsory patent licensing the direct a result of antitrust acts. See, Bessler at 447
Once again the case turns on the Sherman Act and not Title 35. Both cases are inopposite to the procedural posture/remaining causes of action in the instant case.
PATENT REMEDIES (Title 35 of the United States Code)
In the instant case, Motorola Mobility, Inc. v. Apple, Inc. 11-cv-8540 (U.S.D.C. N.D. Ill), the claims remaining viable post the Court's rulings on cross motions for summary judgment are Apple's patent infringement/misuse claims - all Title 35 causes of action.
J. Posner, in the SJ ruling, held that the Plaintiff, Motorola failed to state a case as a matter of law on all of the counts then before the court. That was not the case where Apple's counterclaims for Patent Infringement/misuse were held, as a matter of law, to be valid, and infringed, as a part of J. Posner's ruling on Apple's F.R.Civ.P. 56 Motion. Moreover, J. Posner held that facts remaing in question precluded summary judgment on all issues remaining before the court (Title 35 infringement/misuse causes of action), entitled Apple to a trial on the merits before a finder of fact.
That was the procedural posture earlier this month when J. Posner first dismissed the case, sua sponte within ten (10) days of trial.
The amount in controversy is not an issue where the case turns on a federal question (28 U.S.C. § 1338 (a)), and here we have a holding by the Court that actual infringement of Apple's valid patents has occurred. Damages "shall be" awarded for infringement pursuant to 35 U.S.C. § 284
Fundamentally, the law that has developed concerning patent infringement damages differs from damages available in other types of intellectual property infringement in that it has not embraced the concept of "disgorging" an infringer's profits. See, Aro Mfg. v. Convertible, 377 U.S. 476 (1964), ["[T]he present statutory rule is that only 'damages' may be recovered. These have been defined by this Court as 'compensation for the pecuniary loss he [the patentee] has suffered from the infringement ....' They have been said to constitute "the difference between his pecuniary condition after the infringement, and what his condition would have been if the infringement had not occurred." Id., at 507 (1964) (citations omitted).].
While the Federal Circuit has looked to an infringer's profits as a guide to assessing damages, See, e.g. Kori Corp. v. Wilco, 761 F.2d 649 (Fed. Cir. 1985), cert. denied, 474 U.S. 902 (1985) and Beatrice Foods v. New England Printing, 899 F.2d 1171 (Fed. Cir. 1990), there is no statutory basis for the process. See, 35 U.S.C. § 284 supra. The statute clearly mandates that the finder of fact determine damages with the court assessing damages only in the absence of a jury trial. Id. Apple certainly never waived its jury demand. J. Posner's ruling in Apple's favor on Summary Judgment makes this last-minute dismissal prior to the scheduled jury trial a substitution of the Court's judgement of the measure of damages due Apple for the damage determination of a jury.
Clearly, J. Posner did not want the case heard by a jury. Posit another rationale for the precipitous dismissal months after ruling on Summary Judgment when J. Posner would have had some tangible basis for dismissing both parties? This holding is fundamentally a denial of Apple's Constitutional right to a trial by jury.
Constitutional concerns
Injunctive relief pursuant to 35 U.S.C. §283
Arguably, J. Posner has the authority to deny a statutorily-granted right to equitable relief by the plain reading of the statute: "may grant" - but, he lacks the authority to deny a trial on the merits before a finder of fact to determine statutory damages.
At the core of the argument turns on my original citation to the Constitutional mandate of Art. I, § 8, Cl. 8, U.S. Const., "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" implemented by Congress through adoption of Title 35 of the United States Code. Where the U.S.C. or a court's holding does not adhere to the Constitutional mandate, then the statute or ruling is unconstitutional on its face, or as applied. J. Posner has clearly denied Apple the "exclusivity" right to the company's "discoveries" making both the amendments to 35 U.S.C. § 283 and his refusal to hold a trial, if, for no other reason than to determine the proper measure of damages, then the result is unconstitutional.
Furthermore, J. Posner, the father of the "Law & Economics" doctrine arising out of the University of Chicago School of Economics policy has substituted his preferred damage calculation standard without affording any deference to the holding in the landmark case, Eastman Kodak Company v. Image Technical Services, Inc., 112 S. Ct. 2072 (1992), a case frequently cited for its impact on the standard for summary judgment. It was, in chief, the beginning of the end of the ascendancy of the highly theoretical Chicago School of Economics. Instead of unsupported economic theories, the Supreme Court held that the facts would determine the ultimate issues. It is clear that J. Posner has made his factual determination in the in the absence of the jury even after ruling in Apple's favor on Summary Judgment. The holding is unprecedented and, arguably, plain error.
Multiplicity of Actions
Perhaps the more troubling aspect of the disputes between Apple and Google (via Google proxies (Motorola Mobility) and licensees (Samsung)) are the number of cases, the varying jurisdictions and authorities hearing essentially the same facts and holding differently.
A brief review of the pending actions would include the instant case as well as:
Motorola Mobility, Inc. v. Apple Inc., In the Matter of Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, ITC Inv. No. 337-TA-745, 2010-10-6; Motorola Mobility, Inc. v. Apple Inc. and NeXT Software, Inc., U.S. Dist. Ct., Dist. Del., 2010-10-8; Apple Inc. v. Motorola, Inc. and Motorola Mobility, Inc., U.S. Dist. Ct., W.Dist. Wisc.(consolidated with the instant case), 2010-10-29; In the Matter of Certain Mobile Devices and Related Software, ITC Inv. No. 337-TA-750, 2010-10-29; Apple v. Motorola, 337-TA-750, 2012-3-16; Apple, Inc.; Apple Sales International v. Motorola Mobility, Inc., case 12CV0355 JLS BLM, U.S. Dist. Ct., S.D. Cal., 2012-2-10; Motorola Mobility, Inc. v. Apple Inc., In the Matter of Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, ITC Inv. No. 337-TA-745, 2010-10-6.
And, this list, while far from exhaustive, does not address cases before the European Commission and foreign states.
No End in Sight
It seems clear that Apple has a war on its hands very similar to the war that Polaroid fought against Kodak. Kodak copied Polaroid's "instant camera" and did significant damage to Land Corp. It is an apt analogy where Google is baldly attempting to leverage its way into the markets that Apple created by the use of artifice and conversion. It is unfortunate that Apple has to fight so many battles to hold onto its substantial innovations, the iPhone & iPad. Steve Jobs is famous for his promise to go to "thermonuclear war" over these Apple innovations and I think that Mr. Jobs was entirely correct. What good is masterful innovation and design if the knockoffs can invade the markets you create without bearing the cost to innovate? Apple needs to keep fighting.
Why is this battle so protracted and exists on so many fronts? Because we have a substantially different Judicial Branch in 2012 than Polaroid & Kodak did in 1984. I fully expect that the final resolution will not come through a United States judicial determination. Apple is truly a multi-national corporation and it is battling for its intellectual property rights across the entire planet. China may be the 900 lb gorilla. Well, go for it Apple! I'm long on AAPL and plan to stay there.
Excellent and detailed reply. Now you sound like an attorney.
Yes, agreed the two cases I linked are not "on point" with Judge Posner's comments, but they weren't intended to be. They were simply to note that compulsory licensing is an appropriate remedy under certain circumstances, no matter the property guarantees afforded under the Constitution. That strict guarantee has already been breached years ago. With that said, if any judge were to rule for compulsory licensing in the Apple Motorola case, with a written statement that passed muster with SCOTA, I'd like Posner's chances.
The argument for compulsory licensing, even under Title 35, is farther along than you may realize. I don't know how much study you've done on it. And it's not certainly not a new idea with at least one paper I came across from the Chicago School of Law (?) from 1935. If you're interested in that one I'll try to find it again. In any case Judge Posner isn't suggesting a new idea.
http://patentmath.com/compulsory-licensing-of-u-s-utility-patents/
http://www.cptech.org/ip/health/cl/hr4151-103.html
In copyright law it's already a well-entrenched legal policy. I'm sure you're aware of it, but others may not be.
http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1447&context=lawreview&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dcompulsory%2
Thank you again for the well-written reply!
I can find no precedent, under any civil cause of action, that even comes close to the holding in the instant case. It is currently binding precedent only for other cases brought in the N.D. Ill (assuming no appeal is taken), but the holding is unprecedented in its scope. Used as persuasive authority in sister jurisdictions, absent an appeal, this holding could still wreak havoc across the entirety of our district courts.
J. Posner's ruling establishes judicial authority permitting Art. III Judges the power to deny parties their right to a trial on the merits by judicial fiat. This isn't a 12(b)(6) dismissal, nor a rule 56 dismissal, nor a dismissal by stipulation of the parties, nor any other previously recognized rule, or procedure, by which a case can be dismissed (with prejudice!); it is an act that greatly expands the trial court's authority to deny parties to litigation their fundamental right to a trial by jury, absent any mechanism to challenge the dismissal short of taking an appeal (I suppose that for a brief period writs of mandamus or prohibition may serve to reverse the holding, but I'd doubt that the circuits would permit the proliferation of the practice for very long.).
This holding is a fundamental rejection of well established principals of jurisprudence and it bodes ill for more than just the parties to the case.
Thank you again for another well-argued and polite response. I also appreciate the restatement of a point you had made but I didn't absorb from your previous post. I do understand where you're coming from a bit better now.
Quote:
Originally Posted by Hiro
Court of Public Opinion says: "That was dumb."
Really? I would think that the court of Public Opinion actually said: "What lawsuit?"