Patent system out of sync, says judge
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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 month. 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 patents.
“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,” Posner said.
“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. - Reuters