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Judge who threw out Apple, Motorola case questions if software patents should even exist

Posted: , by Charlene S.

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Judge who threw out Apple, Motorola case questions if software patents should even exist
Judge Posner, who sits on the 7th U.S. Circuit Court of Appeals in Chicago, made headlines early last month when he threw out the entire Apple/Motorola case. He recently spoke with Reuters about the case and the patent system as it applies to today’s devices and his opinions may surprise you.

Posner, who is now 73 years old, has been a federal appeals court judge since 1981. In that time he has written dozens of book and also teaches at the University of Chicago. Interestingly, when it comes to the Apple/Motorola case, Judge Posner did not get involved by luck of the draw, rather he specifically volunteered to oversee it.

When taking over the case, Posner described himself as “really neutral.” He said he had previously used a court-issued BlackBerry and recently upgraded to an iPhone, but only used it to call his wife and check his email. "I'm not actually that interested in becoming part of the smartphone generation," he said.

Posner described the technology industry as a “constant struggle for survival.” He likened their use of the patent litigation to that of jungle life. He said, “The animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem.” On the same token, Posner said these companies should not be blamed for seeking litigation because they are simply taking the opportunities that our system allows.

Judge who threw out Apple, Motorola case questions if software patents should even exist
Posner feels that system is better suited for other industries. For example, the pharmaceutical industry has to invest an incredibly high amount of money to invent a successful drug; therefore he feels they have a better claim to intellectual property rights.

On the flip side, innovations in the software industry cost significantly less and he says the company would still retain its first to market benefit without a patent. He also points out that in today’s devices, there are thousands of features and each one has its own patent protected by the law.

"It's not clear that we really need patents in most industries," Posner said. "You just have this proliferation of patents. It's a problem."

That is essentially the philosophy he used when throwing out the Apple/Motorola case. He did not agree with the idea of banning a device over a patent on one feature because, ultimately, the consumers are the ones that receive the most harm. Posner also prevented Motorola from pursuing a ban against the iPhone because Motorola has previously licensed those same patents to other companies in an attempt to make them industry standards.

At the end of the day, even though Posner was looking forward to this case, he felt his only choice was to throw it out.

"I didn't think I could have a trial just for fun," he said.

source: Reuters

46 Comments
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posted on 05 Jul 2012, 10:16 54

1. frydaexiii (Posts: 1460; Member since: 01 Dec 2011)


This man...Faith in humanity restored!

posted on 05 Jul 2012, 11:18 13

14. iWorld (Posts: 85; Member since: 05 Jul 2012)


Apple should hire this man as their CEO.

posted on 05 Jul 2012, 10:18 30

2. Joshing4fun (Posts: 1237; Member since: 13 Aug 2010)


I like this guy.

posted on 05 Jul 2012, 10:20 30

3. zhypher_23 (Posts: 195; Member since: 04 Jun 2012)


Judge Posner is by far IMO the best judge to give neutral perspectives on both sides like he said "He did not agree with the idea of banning a device over a patent on one feature because, ultimately, the consumers are the ones that receive the most harm." Bravo Judge Posner.

posted on 05 Jul 2012, 20:49 1

41. Lucas777 (Posts: 2137; Member since: 06 Jan 2011)


really.. it wasnt more than 5 months ago when posner was said to be a terrible judge and that he couldnt possibly decide tech stuff since he is a lawyer..

posted on 05 Jul 2012, 10:22 13

4. plgladio (Posts: 314; Member since: 05 Dec 2011)


Amazing! Maturity in another word called as Posner

posted on 05 Jul 2012, 10:25 28

5. Whateverman (Posts: 3271; Member since: 17 May 2009)


I wonder if judge Koh is paying attention? She should be!

posted on 05 Jul 2012, 10:25 23

6. fervid (Posts: 183; Member since: 22 Nov 2011)


Need to clone this guy before he dies and appoint him on every court system...

posted on 05 Jul 2012, 10:27 16

7. bragzter (Posts: 52; Member since: 21 Feb 2012)


Love him. Wish all judges had the common sense he does to realise all these lawsuits is Apple's way of being anti competitive and all cases be thrown out the same way

posted on 05 Jul 2012, 10:35 17

8. Berzerk000 (Posts: 4275; Member since: 26 Jun 2011)


We need more judges like this

posted on 05 Jul 2012, 10:36 15

9. Fuego84 (Posts: 348; Member since: 13 May 2012)


Judge Posner = People's Champion

posted on 10 Jul 2012, 16:19 1

47. InspectorGadget80 (unregistered)


do you smell the that Posner is cooking ?

posted on 05 Jul 2012, 10:58 3

10. MeoCao (unregistered)


I disagree a little: innovation should be recognized in software otherwise no 1 will care to invest in research and development. But imo patents should be granted only to very original and substantive solutions.

About "slide to unlock" or "data tapping"... sorry

posted on 05 Jul 2012, 11:44 8

19. Stuntman (Posts: 836; Member since: 01 Aug 2011)


Some of the patents seem rather trivial to me. Apple has a patent where if you tap a phone number in an email, it will dial the number. This seems very trivial. There has already been features where you tap or select some object in an email and it launches that link. You've seen that for URLs, Word documents, Excel documents and such already and yet doing the same for making a phone call is supposed to have a lot of R&D behind it?

posted on 05 Jul 2012, 12:01 12

20. superguy (Posts: 293; Member since: 15 Jul 2011)


That's what copyright is for. You can create something new, like say Photoshop back in the day. Some puts together a collection of tools for manipulating photos, maybe a few special widgets in there, packages it and sells it as a suite. Now that doesn't preclude someone else from makiig something similar. They can put together a suite, call it something else, and sell it. Now as long as it doesn't look the same, or isn't called Photoshop or made to look like Adobe made it, then there'd probably be no infringement. At that point, both software suites are in the market, and stand on their merits and people will buy what suits their needs, or is the better suite.

What's protected is the expression, or implementation of the idea. The idea itself isn't locked up to prevent someone else from using it.

Likewise, copyright protects Apple from Google or Microsoft from ripping of the look of the OS, but it shouldn't preclude them from basic functionality, like searching, storing contacts, etc.

Now if something were truly unique, and not basic funcationality, such as a special algorithm for cutting processing, or a proprietary file format, there could be a case for patenting that specific implementation of it, but the general idea of creating a competing format that does something similar in a different way would not be prohibited. That's where I think things are getting screwed up - Apple is using patents to preclude the whole concept of something, not just a specific implementation.

posted on 05 Jul 2012, 19:36 2

38. MeoCao (unregistered)


Ha ha, you guys misunderstand me.

What I mean is "slide to unlock" or "data tapping" are gabage and should never be granted patents in the 1st place.

But I really think stuffs like algorithms are patentable.

posted on 05 Jul 2012, 11:04 2

11. Gemmol (Posts: 792; Member since: 09 Nov 2011)


Whats the sense of inventing then, if they did this, then all you need to do is watch all the stuff people make, take it and add your sprinkles around it, make a big advertisement and bingo, huge sales and the person who invent it go home with a sad face.....people who invent and have no money to advertise will be hurt the most.....at the end of the day it will hold back innovation..........but if there was patents and you can sue or ban people, it force people to think outside of the box to make a product that someone would want.........all this no patent stuff make people think its okay to piggy back, I don't agree with what apple doing, but if they want to ban people they have that right, it may be one little feature but still aint right to use somebody stuff.....I would be upset if someone making profits of my idea........and if you say buying companies do not make you a inventor.....your right it dont....but it do make me owner of the patent......I just feel Google should just make all new things, forget piggy backing that way the Android will be all theirs and apple have nothing to sue......just like the other article said they going to make a work around for the galaxy nexus.....they should of been did that and for other patents....need to stop waiting till you get ban to do something....stop being lazy piggy backing....by both companies have nothing to sue for it will make competition better, because they will have to create new ways to get customers excited and this is a future I would like to see............please remember this is my opinion before yall negatively write me up.......they should take away the thumbs down bar because it takes away free speech if you have too much negatives no one gets to see your post, which make people have to think twice about what they write.......they should only be a thumbs up button you either like the post or leave it alone

posted on 05 Jul 2012, 12:06 6

21. superguy (Posts: 293; Member since: 15 Jul 2011)


Well, then you need to take a look at Apple. Apple has been huge on ripping stuff off and improving on it. Even Steve Jobs himself said he shamelessly did such things.

That said, the concept of the smartphone had been around for quite awhile between Blackberry, Symbian, and Microsoft. One can argue the merits of how good their implementation was, but none of the companies precluded any others from trying. Apple saw an opportunity to improve smartphones, created the iPhone, and sold it. They didn't invent anything really new - they just improved what was already out there.

Even Microsoft was first to market with the tablet concept in 2002-2003. It didn't sell then. Apple took the idea much later on, put their spin on it, and created the iPad. No one saw MS complaining and suing them because Apple ripped off their idea.

So if you're going to say Google shouldn't piggyback, take a look at Apple and what they've done before slamming other companies..

posted on 05 Jul 2012, 14:23 2

31. Gemmol (Posts: 792; Member since: 09 Nov 2011)


yeah he did, he even bought the companies that did it too, so now he own their patents, it doesnt change the subject they own the patents, so it is their feature or in other words product, but in google case they do not own the patents but yet take what they see from others n use it.......no matter how much you blame apple they own the patents and that is what matters in the case they are the owner.....if you are using what they own it makes you the piggy backer......look at this i got 9 negatives I guess people want a world where my TV is everyone TV

posted on 05 Jul 2012, 12:09 4

23. tedkord (Posts: 12304; Member since: 17 Jun 2009)


Watching what others made, taking it and adding your own sprinkles withh big marketing us exactly how the iPhone came to be.

posted on 05 Jul 2012, 14:33 2

32. Gemmol (Posts: 792; Member since: 09 Nov 2011)


yeah but they own the patents, its crazy how everyone think this is okay, I understand you hate the company, I have a Galaxy Note, so it do not bother me, but I look at it from my perspective if I own a company and have these little features of mines that I own the patents for..I would ban a company that try to use them.....the problem with everyone is that yall are looking at the phone as a whole and judging that as the only way to show if someone is copying, when this is not true sometimes it can be a little change that make something feel better aka known as apple features.....I dont believe in this I make something and it gives you the right to use it.....and for the ones saying apple took people stuff......please remember apple buy the companies so the patents belong to them....this is what people forget every day when they post something on here......I guess a lot of people have different perspective so im guessing if you made a feature on your product slide to unlock and I stole it and put it on my phone.....everything is okay with you???? while i go on to make millions off it because people like the familiarity of it from using it on your product

posted on 05 Jul 2012, 14:57 3

34. Retro-touch (Posts: 273; Member since: 24 Oct 2011)


Your reason is flawed because no one buys a phone for one single feature but for the collection of features it offers. You might have a patent but that patent may have been given for too broad a scope to foresee the various implementations that could be done using an idea. IOS 6 copied the notification tray off Android, its been an andoid feature for a damn long time, I haven't heard of Google suing Apple for such a claim.

That kind of behavior of suing completely different implementations based on very broad definitions for patents is just plain wrong and is anti-competition. Competition furthers innovation and without a competitive market we might still be running single core phones. What you personally use doesn't matter, and doesn't add any merit to your argument.

You misunderstand the basic idea behind why everyone looks at a phone as a whole and its because everything thats added to a phone, every feature, every piece of tech, its design and performance are ultimately what determine whether people buy a product. Features like Siri and Google Now add value but they don't make or break a phone, its the entire package that does

posted on 06 Jul 2012, 09:16

45. Gemmol (Posts: 792; Member since: 09 Nov 2011)


you miss my last sentence people would buy another phone for similarity, look at apple phone it had slide to unlock before android phones, then screen shot n etc......by having some ui features similar to apple make it easier for people to give android a try, which goes back to what i say using my features to make money of me......do you not see ios and android are similar.....i did use the word similar, i did not say it look exactly like it, if im not mistaken when android was being made it took some ideas from apple to make the phone just similar enough that people can switch os system without a problem......CASE CLOSED.....well its not closed i would be a troll if i said that but there is a lot of back and forth arguments that can be use to prove a point in this case.....thank you for your point of view.....im not like others here I do not thumbs down someone message

posted on 05 Jul 2012, 20:33 5

40. Zero0 (Posts: 592; Member since: 05 Jul 2012)


1. Apple is guilty of stealing UI concepts as well. Their notification center is a blatant rip-off of Android's.
2. Slide to unlock is not a "feature." It's a very basic UI concept. It does not sell phones.
3. There are other ways to unlock a touch screen, but, evidently, Apple has a patent over any type of gesture used to unlock. The patents are very broad.

posted on 06 Jul 2012, 01:50

43. quakan (Posts: 1381; Member since: 02 Mar 2011)


Last time i checked, Google's notification bar was still patent pending so Google can't do anything about it for now.

posted on 06 Jul 2012, 21:15

46. tedkord (Posts: 12304; Member since: 17 Jun 2009)


You're missing the point. The whole point of patents is to protect innovation. Patented ideas are supposed to be new, non-obvious and original. Slide to unlock does not meet that criteria, because it existed on the Neonode N1m prior to the iPhone.

The patent should not have ever been granted. Apple stole the idea themselves.

Then you get into the other areas of Apple's patents - they file when they have the idea, without ever actually working on it, they make the patent overly broad, so as to cover ANY similar idea. They actually stated in court that "Slide to Unlock" covers tapping an unlock icon, because a tap is just a zero length slide.

Then, these overly broad patents often fail the non-obvious test. The patent system is severely flawed, and Apple are taking advantage of the flaws to block competition. Competition which has flown past them like they were standing still.

posted on 05 Jul 2012, 19:59 2

39. medicci37 (Posts: 1288; Member since: 19 Nov 2011)


@ Gemmol Sorry about the thumbs up. Tried 2 hit the thumbs down. But was using a POS iphone.

posted on 05 Jul 2012, 11:13 4

12. gwhyte01 (Posts: 44; Member since: 09 Jul 2008)


Ummm same judge who opposed the att t T-Mobile deal.

posted on 05 Jul 2012, 13:46 2

29. tedkord (Posts: 12304; Member since: 17 Jun 2009)


One more reason to love the guy!

posted on 05 Jul 2012, 11:18 9

13. GuiltyBystander (Posts: 199; Member since: 05 Mar 2012)


Posner for president!

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