[Ip-health] Judge Posner calls patent system “dysfunctional”

Jamie Love james.love at keionline.org
Sat Jun 9 09:04:37 PDT 2012


I liked this quote from Posner's blog:

The institutional structure of the United States is under stress. We
might be in dangerous economic straits if the dollar were not the
principal international reserve currency and the eurozone in deep
fiscal trouble. We have a huge public debt, dangerously neglected
infrastructure, a greatly overextended system of criminal punishment,
a seeming inability to come to grips with grave environmental problems
such as global warming, a very costly but inadequate educational
system, unsound immigration policies, an embarrassing obesity
epidemic, an excessively costly health care system, a possible rise in
structural unemployment, fiscal crises in state and local governments,
a screwed-up tax system, a dysfunctional patent system, and growing
economic inequality that may soon create serious social tensions. Our
capitalist system needs a lot of work to achieve proper capitalist
goals.  (http://www.becker-posner-blog.com/2012/06/capitalismposner.html)


http://gigaom.com/mobile/famous-judge-spikes-apple-google-case-calls-patent-system-dysfunctional/

Famous judge spikes Apple-Google case, calls patent system “dysfunctional”
By Jeff John Roberts Jun. 8, 2012, 9:07am PT 27 Comments

A U.S. judge yesterday threw aside a much-anticipated trial between
Apple and Google-owned Motorola Mobility over smartphone patents. The
decision and a blog comment by the same judge could prove to be a
watershed moment for a U.S. patent system that has spiraled out of
control.

In his remarkable ruling, U.S. Circuit Judge Richard Posner stated
that there was no point in holding a trial because it was apparent
that neither side could show they had been harmed by the other’s
patent infringement. He said he was inclined to dismiss the case with
prejudice — meaning the parties can’t come back to fight over the same
patents — and that he would enter a more formal opinion confirming
this next week.

The order is extraordinary not only for what it said but for who wrote
it. For the unfamiliar, Richard Posner is a legend in legal and
academic circles and possesses a resume that makes the typical Supreme
Court Justice look like a slouch. He teaches at the University of
Chicago and ordinarily sits on the influential 7th Circuit Court of
Appeals but, in an unusual development, was assigned to a lower court
last December to hear the Google-Apple patent case.

The case is just one of many patent disputes tying the legal system in
knots as large companies tangle not only in court but at the
International Trade Commission in an effort to ban each others’
products from the market. Critics say the patent system, which awards
20-year monopolies, has run amok thanks to a flood of questionable
patents for software, business methods, emoticons and even one for
“swinging on a swing.”

In a series of earlier rulings in the Apple case, Posner didn’t mince
words as he used plain language to beat up the over-reaching arguments
of both sides:

[re a slide-to-unlock patent] Apple’s .. argument is that “a tap is a
zero-length swipe.” That’s silly.  It’s like saying that a point is a
zero-length line.
Motorola’s contention that the term has a “plain and ordinary meaning”
is ridiculous; Motorola seems to have forgotten that this is a jury
trial.

In his ruling to dismiss, Posner noted that a trial would “impose
costs disproportionate to the harm … and would be contrary to the
public interest.” Posner’s cost-benefit assessment is likely rooted in
a worldview anchored in law and economics — a Chicago-school of
thought that equates court decisions with maximizing efficient
economic outcomes.

This week, Posner also lashed at the patent system in a blog he shares
with economist Gary Becker. In a post about the declining strength of
American institutions, he concluded:

The institutional structure of the United States is under stress. We
might be in dangerous economic straits if the dollar were not the
principal international reserve currency and the eurozone in deep
fiscal trouble. We have a huge public debt, dangerously neglected
infrastructure, a greatly overextended system of criminal punishment,
a seeming inability to come to grips with grave environmental problems
such as global warming, a very costly but inadequate educational
system, unsound immigration policies, an embarrassing obesity
epidemic, an excessively costly health care system, a possible rise in
structural unemployment, fiscal crises in state and local governments,
a screwed-up tax system, a dysfunctional patent system, and growing
economic inequality that may soon create serious social tensions. Our
capitalist system needs a lot of work to achieve proper capitalist
goals.  ((http://www.becker-posner-blog.com/2012/06/capitalismposner.htm)

Posner’s decision to descend from the 7th Circuit to oversee the
Google-Apple trial suggests he wished to step in and do something
directly about the patent system. (Ordinarily, Posner would never hear
a patent case as all patent appeals are sent to the DC-based Court of
Appeals for the Federal Circuit; that court has maintained an
ideological bias in favor of patent owners despite repeated rebuffs by
the Supreme Court).

The backlash against the misuse of patents is coming not just from
Posner and the Supreme Court but other federal judges as well. Judge
James Robart blasted Motorola and Microsoft in Seattle last week,
noting that ”The court is well aware that it is being played as a pawn
in a global industry-wide business negotiation.”

It’s unclear how Apple and Google will respond to Posner’s surprise
pounding of them. Both companies have so far said nothing and may be
waiting for the other shoe to drop via Posner’s formal opinion
expected next week. The judge wrote yesterday that he may change his
mind but the overall tenor of the first opinion suggests this is
unlikely. You can decide for yourself here:

http://www.scribd.com/doc/96427053/Posner-Order




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