updated 08:26 pm EDT, Tue October 2, 2012
Judge Posner seeks governmental review of entire program
Court of Appeals Judge Richard Posner who dismissed the Apple versus Motorola smartphone patent trial posted a blog entry complaining about the rampancy of patent filings. Posner wrote that "I am concerned that both patent and copyright protection, though particularly the former, may be excessive." The best illustration of the need for patent reform is illustrated by the software industry, according to the blog post.
Posner writes that the software industry is "a progressive, dynamic industry rife with invention. But the conditions thatmake patent protection essential in the pharmaceutical industry are absent. Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral--most software inventions are quickly superseded." Patents for software are "huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement--and also for infringing, and then challenging the validity of the patent when the
patentee sues you."
Judge Posner goes on to complain about a shortage of patent examiners proficient enough to adequately examine software patents, the limited technical ability of judges and juries, and the near-impossibility of ruling on damages for infringement of a component of a product rather than its whole. A generally chaotic nature of the software industry, with constantly shifting patent alliances and mergers is also viewed as a complication to patent law.
Patent trolls are decried in the blog post as well. The proliferation of lawsuits by non-practicing entities increases the burden on legitimate patent holders by the "increased market prices above efficient levels, causing distortions in the allocation of resources; to engender wasteful patent races--wasteful because of duplication of effort and because unnecessary to induce invention (though the races do increase the pace of invention); to increase the cost of searching the records of the Patent and Trademark Office in order to make sure one isn't going to be infinging someone's patent with your invention; to encourage the filing of defensive patents (because of anticipation that someone else will patent a similar product and accuse you of infringement)."
An interview with Reuters in July was the first voicing of his opinion on the patent wars, arguing that the smartphone industry is suffering from a "proliferation of patents," and that software patents may not be necessary, since writing a program requires much less investment than what a pharmaceutical company, for instance, might put into developing a new drug. "It's not clear that we really need patents in most industries," he says.
The judge's views may have affected the Apple v. Motorola case and others. Many in the industry have complained, though, that the smartphone industry is suffering under a sea of lawsuits, many of them initiated by Apple, or filed in response. Aside from Motorola, Apple's main targets have been Samsung and HTC. Posner supports the view that smartphone makers are using patent suits as a competitive weapon.
He points out that paying a legal team is a "small expense" for corporations like Apple, which had $110 billion in cash and securities alone at the end of the March quarter. "It's a constant struggle for survival," he comments. "As in any jungle, the animals will use all the means at their disposal."