Chicago - The US judge who tossed out one of the biggest
court cases in Apple's smartphone technology battle is questioning whether
patents should cover software or most other industries at all.
Richard Posner, a prolific jurist who sits on the 7th US
Circuit Court of Appeals in Chicago, told Reuters this week that the technology
industry's high profits and volatility made patent litigation attractive for
companies looking to wound competitors.
"It's a constant struggle for survival," he said
in his courthouse chambers, which have a sparkling view of Monroe Harbour on
Lake Michigan. "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.”
Posner, 73, was appointed as a federal appeals court judge
by president Ronald Reagan in 1981 and has written dozens of books, including
one about economics and intellectual property law.
Posner, who teaches at the University of Chicago,
effectively ended Apple’s lawsuit against Google's Motorola Mobility unit last
He cancelled a closely anticipated trial between the two and
rejected the iPhone maker's request for an injunction barring the sale of
Motorola products using Apple's patented technology.
Apple is in a pitched battle with its competitors over
patents, as technology companies joust globally for consumers in the
fast-growing markets for smartphones and tablet computers.
Posner said some industries, like pharmaceuticals, had a
better claim to intellectual property protection because of the enormous
investment it takes to create a successful drug.
Advances in software and other industries cost much less, he
said, and the companies benefit tremendously from being first in the market
with gadgets - a benefit they would still get if there were no software
"It's not clear that we really need patents in most
industries," he said.
Also, devices like smartphones have thousands of component
features, and they all receive legal protection.
"You just have this proliferation of patents,"
"It's a problem."
The Apple/Motorola case did not land in front of Posner by
accident. He volunteered to oversee it.
Federal appellate judges occasionally offer to preside over
district court cases. Posner had alerted the district judges of his interest in
patents, so after part of the smartphone battle landed in Wisconsin federal
court, the judge there transferred the case to him.
When Posner began working on the smartphone case, he told
the litigants he was "really neutral"” because he used a court-issued
BlackBerry made by Research In Motion.
He soon accepted an upgrade to an iPhone, but only uses it
to check email and call his wife, he said.
"I'm not actually that interested in becoming part of
the smartphone generation," he said.
Posner's corner office is filled with the requisite library
of law tomes, and a row of books he wrote sits alongside his family photographs.
He also has a signed photograph from the late Supreme Court Justice William J
Brennan Jr, for whom he clerked in the early 1960s.
Judges rarely speak openly to the press, but Posner is
outspoken on a range of topics. Last week in online magazine Slate, he penned a
withering critique of US Supreme Court Justice Antonin Scalia’s recent dissent
in the Arizona immigration case.
"It wouldn't surprise me if Justice Scalia’s opinion
were quoted in campaign ads," Posner wrote.
Motorola vs Apple
Motorola sued Apple in October 2010, a move that was widely
seen as a pre-emptive strike. Apple filed its own claims against Motorola the
In cancelling the trial, Posner said an injunction barring
the sale of Motorola phones would harm consumers. He also rejected the idea of
trying to ban an entire phone based on patents that cover individual features
like the smooth operation of streaming video.
Apple's patent, Posner wrote in his June 22 order, "“is
not a claim to a monopoly of streaming video!"
Not all judges in the patent wars share Posner's scepticism
of injunctions. US District Judge Lucy Koh in San Jose, California, granted
Apple two critical pretrial injunctions against Samsung last week: one against
the Galaxy Tab 10.1, and the other against the Galaxy Nexus phone.
In Friday's 101-page ruling barring the Galaxy Nexus, Koh
cited the harm to Apple due to competition from phones that infringe its patent
on the Siri search feature. Samsung is appealing both injunctions.
Posner said he had not read Koh's orders.
In his own ruling, Posner also barred Motorola from seeking
an injunction against the iPhone because the company had pledged to license its
patent on fair and reasonable terms to other companies - in exchange for having
the technology adopted as an industry standard.
Posner's idea of examining whether industries like software
should receive patent protection is a mainstream one, especially in the
computer industry, said John Allison, a professor at University of Texas at
Austin who studies intellectual property rights.
However, recent patent law reforms passed by the US Congress
did not directly address the issue, and Allison said classifying industries for
the purposes of intellectual property protection - as Posner suggests -
was"“completely impractical" because talented lawyers could game the
When it comes to the smartphone litigation wars, Posner said
tech companies should not be blamed for jumping into court since they are
merely taking the opportunities that the legal system offers.
Given the large cash reserves in Silicon Valley, high legal
fees are not a deterrent. Apple, for instance, had $110bn in cash and
securities as of March 31.
"It's a small expense for them," Posner said.
Posner said he had been looking forward to presiding over a
trial between Motorola and Apple, but had no other choice than to toss the
"I didn't think I could have a trial just for
fun," he said.
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