Federal judge Richard Posner took to his blog this week to complain about the rise of patent and copyright law cases in the tech sector.
“The problem of excessive patent protection is at present best illustrated by the software industry. This is a progressive, dynamic industry rife with invention. But the conditions that make 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created by teams of software engineers at modest cost, and also ephemeral–most software inventions are quickly superseded. Software innovation tends to be piecemeal–not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is 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.”
Though the judge began his post by talking about the way that “excessive” protection afforded by patents is holding back creativity, he quickly moved on to point out how these cases are tying up the time and resources of the court. The judge specifically focused on the following hindrances:
- “a shortage of patent examiners with the requisite technical skills”
- “the limited technical competence of judges and jurors”
- “the difficulty of assessing damages for infringement of a component rather than a complete product”
- “the instability of the software industry because of its technological dynamism”
Basic translation: there are a lot of chances for the problems of the judiciary system to benefit people who want more money.
Judge Richard Posner Is an Influencer
Judge Posner is obviously well-versed with software patent battles; after all, he’s the one who dismissed the Apple – Motorola patent battle a few months ago. If his actions seem to run counter to the norm in regards to patent rulings, do keep in mind that he was temporarily sitting in as a trial judge in the Apple – Motorola case. His decision can still be overturned by the Federal Court.
Posner’s position on the Seventh Circuit Court of Appeals does not allow him to directly shape policy for patent battles most of the time, but his voice is still highly respected among his peers in the courts and in law schools. His, at times, outspoken opinions carry plenty of weight.
Skip the Name Calling
Since Android Headlines is obviously a site dedicated to Android devices, we are more likely to think of Posner condemning Apple’s practices throughout this post. However, Samsung has been throwing around their share of lawsuits, as well. Granted, they are in response to Apple’s behavior, but Samsung isn’t being reluctant in their practices, either.
Giant tech companies like Apple and Samsung have deep pockets, and they have a lot to lose if their patents are abused. It’s the patent trolls that truly expose the justification of Posner’s frustration. Buying up old patents solely for the purpose of being able to sue other companies is a practice that is bogging down the court system and the innovation of technology.
Sources: Ars Technica, Becker Posner Blog