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Famous judge spikes Apple-Google case, calls patent system “dysfunctional”
- CurtHagenlocher 14y agoNice quote from a different judge: "The court is well aware that it is being played as a pawn in a global industry-wide business negotiation."
- kamjam 14y agoHa! At least they know they are being played and are not as foolish as they look! :D So very true though! Even if nothing comes of the lawsuit, the amount of time, effort and money that is wasted in defending these must be colossal!
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- shareme 14y agoahem, trial was not piked despite F Mueller claims to the contrary, date of trial is Nov 2012. MS better ask for your money back Mueller is doing piss poor job at spreading FUD
- bokchoi 14y agoThe linked blog post from Posner is excellent: http://www.becker-posner-blog.com/2012/06/capitalismposner.html http://www.becker-posner-blog.com/2012/06/capitalismposner.h...
- bryanlarsen 14y agoThe number of comments disagreeing with his post certainly helps explain why we've gotten in such a mess.
- magila 14y agoTo be fair, calling Alan Greenspan an advocate, let alone a practitioner, of laissez-faire economics is kind of like calling the pope an atheist.
- _delirium 14y agoSince he was one of the contributors to Capitalism: The Unknown Ideal (1966, http://www.amazon.com/dp/0451147952 http://www.amazon.com/dp/0451147952), one of the more influential laissez-faire manifestos of the late 20th century, I think it's fair to say that he was an advocate of laissez-faire economics during at least a portion of his life.
- magila 14y agoOk, but the blog post was clearly referring to Greenspan's actions/statements during his tenure as Chairman of the Federal Reserve by which time his credibility as an advocate of laissez-faire was out the window.
- arjunnarayan 14y agoThis opinion is both extraordinary and extremely significant. Richard Posner is probably the most prolific legal intellectual not on the supreme court. He co-writes, along with Gary Becker (Nobel Prize winner in Economics) this excellent blog http://www.becker-posner-blog.com/ http://www.becker-posner-blog.com/ Posner is the author of the 4th most cited Law Review article in the field of intellectual property law[1]. Most telling of all is this statistic: "As of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else" [2]. He retains that position in 2012. [1] - William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325 (1989). [2] Fred Schapiro & Michelle Pearse, The Most Cited Law Review Articles of All Time, Michigan Law Review 2012.
- hxa7241 14y agoEveryone should read the second paragraph of that article, so here is a link: http://cyber.law.harvard.edu/IPCoop/89land1.html http://cyber.law.harvard.edu/IPCoop/89land1.html -- it is one of the baselines for intelligent consideration of the subject, pro or anti. (relevant jargon ref: "public good" -- http://en.wikipedia.org/wiki/Public_good http://en.wikipedia.org/wiki/Public_good)
- j-b 14y agoAn excellent quote from Posner: "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." [1] [1] http://www.becker-posner-blog.com/2012/06/capitalismposner.html http://www.becker-posner-blog.com/2012/06/capitalismposner.h...
- SagelyGuru 14y agoHe called it right, as it is.
- mikek 14y ago> [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. But a point is a zero-length line.
- cwp 14y agoYes, and a tap is, technically, a zero length swipe. But there is nevertheless a distinction between taps and swipes just as there is between points and lines. Apple's API distinguishes between the two gestures, even if Apple's lawyers don't. Claiming that tap-to-unlock violates a swipe-to-unlock patent is silly. The whole point of swipe-to-unlock is that a tap doesn't unlock the phone.
- vacri 14y agoThis is what I thought the judge was getting at - yes, you can define a point as a zero-length line in theoretical space, but when you apply it to something like finger movements in the case in front of him, it's a big pile of horseshit. Describing a point as a zero-length line is a mathematical trick used to help understand a concept; it's not a real-world application of mathematics.
- planetguy 14y agoIf my high school maths teacher were here he'd say that a point is a zero-length line segment.
- cglace 14y agoExcept it isn't. Doesn't a line segment required two distinct endpoints?
- ktizo 14y agoSometimes it is useful to think of a really short line becoming a point, like in calculus, but that doesn't mean a point is a really short line any more than its a really tiny triangle or anything else we want to scale to a point.
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- antithesis 14y ago> 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. Look who's talking.
- gdubs 14y agoI notice that NeXT is listed as a co-plaintif - does anyone know why? Weren't they completely acquired by Apple?
- bretpiatt 14y agoNot a lawyer and speculating so take it for what its worth... when you acquire an entity you don't always remove all of the assets from it and shut it down. It turns into a wholly owned subsidiary. The patents are likely still assets of the NeXT subsidiary.
- eykanal 14y agoI can't read the embedded Scribd document (scribd is blocked here)... what term does Motorola claim has a "plain and ordinary meaning"?
- js2 14y agoThe quote is from an earlier ruling, not from the PDF. The full quote is: "Motorola is hereby ordered to propose a claim construction of the term 'predetermined number of channel resources' in patent '898 at tomorrow's Markman hearing. 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. The term 'predetermined' means 'determined prior to some other event,' and what that 'other event' is is not obvious in context and certainly will not be obvious to a jury. If Motorola does not want Apple's proposal to be accepted, it must propose some alternative." http://www.fosspatents.com/2012/03/judge-posner-praises-apples-claim.html http://www.fosspatents.com/2012/03/judge-posner-praises-appl...
- grecy 14y agoWow, I think the more interesting part of this is his slamming of the current situation in America: "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." Not mincing words indeed.
- ecocentrik 14y agoI'm glad Posner and a few other justices seem to have an interest in discrediting frivolous patent cases but can they do anything other than point a dirty finger at corporations for abusing the patent system and dismiss their cases with prejudice? Posner can't shift around his appointments indefinitely. It's obvious that most HNers feel the patent system won't change any time soon or they wouldn't be filling this thread with a discussion on the definition of a line segment. Edit: I'm not saying he should do more. I was asking if he could do more from his position. I recognize that he's bringing needed attention to the subject and setting an example that will probably be followed by others in the judiciary.
- neilk 14y agoExactly what do you want him to do? He could not be a judge and also be an activist. Speaking this clearly from the bench - a position of impartial authority - is probably the best he can do.
- ChicagoTown 14y agoPatent trolls need to go to court in certain states to be effective. States like Texas are a big part of the patent troll problem. The courts there welcome the insanity with open arms. If we could clone Posner and put him in every state, this type of ridiculous patent litigation from IT companies would not be such a viable course of action. Maybe it's not a question of what one justice can do, but a question of people taking a greater interest in their local and federal court systems. Are the courts in your state giving the go-ahead to frivolous patent proceedings from IT companies? Do you think that is a good thing? Is the time and expense for the courts to hear these cases warranted? Take an interest, as you did with SOPA. Imagine if there was a calling campaign to state bar associations instead of state politicians. Believe me, it would get noticed. Most people just do not care about this stuff enough to take an interest. That said, there are a lot of people who support this patent trolling nonsense. It doesn't fly in Chicago, but it's par for the course in Washington and California. Good luck rallying the troops in those places. Many of them are part of patent trolling machine. It's what their employers and clients do.
- pg 14y agoWhat a wonderful surprise. I'd forgotten about the judicial branch, and now they appear like the cavalry to sort out this mess. Wouldn't it be great if they went after the patent trolls next?
- dctoedt 14y agoI wouldn't read too much into this. Judge Posner took standard principles of law governing damage awards and injunctions and applied them to a very specific set of circumstances. The opinion itself [1] is worth reading. [1] http://www.scribd.com/doc/96427053/Posner-Order http://www.scribd.com/doc/96427053/Posner-Order
- AJ007 14y agoIf it was not for the judicial branch, the internet would, as we know it today, would not exist. Remember such detestations as the Child Online Protection Act? Which, after being struck down, and the Supreme Court agreeing with the ruling, a John Ashcroft led Department of Justice continued to use tax payer money to push back through the courts? I suspect that the differences between functional and dysfunctional governments, elected or not, lie largely in their legal and court systems.
- MartinCron 14y agoIf it was not for the judicial branch, the internet would, as we know it today, would not exist. But for the judiciary, many of the liberties we take for granted wouldn't exist. It's easy to sneer at "activist judges" when you don't like how the rule, but never forget how brilliant the multi-branch system of government is.
- crusso 14y ago> But for the judiciary, many of the liberties we take for granted wouldn't exist. True. Then again, a lot of evil has been done by the judiciary. Particularly with the supreme court, you have a small number of unelected decision makers who wield an enormous amount of power. > It's easy to sneer at "activist judges" when you don't like how the rule, Let's not throw out the baby with the bathwater, though. "activist judges" is a loaded pejorative, but in the right context it labels a real corruption of our system that we should be wary of. A true "activist judge" is one who gives the government new powers not explicitly granted by the US Constitution -- whether by allowing a new law to stand that doesn't pass Constitutional muster, or by creating new concepts out of thin air. The Legislative body is where we want our laws to be constructed, since those guys are the easiest to control through democracy. We don't want that law making function to leak all over the system like into the judiciary and the bureaucracy of the executive branch where we don't have good mechanisms to track and control.
- neilk 14y agoWhat does it mean that Posner was assigned to a lower court? Should we assume that he requested a chance to rule on this matter? Or is the entire judicial branch disgusted with the patent system too, and they asked for a pinch-hitter?
- _delirium 14y agoThe chief judge of a circuit can assign a circuit judge to hear a district-court case, if they deem it to be in the public interest. (I don't know anything about how often this is used, or what the reasons typically are, though.)
- dctoedt 14y agoIn the federal court system, it's not unusual for circuit (appellate) judges to volunteer to be assigned to preside at trials in the district courts. This is especially true if the appellate judge didn't previously serve as a trial judge. That was the case with Richard Posner, who was a highly-distinguished law professor before being appointed to the appellate bench. The reverse is also true: It's not uncommon for district (trial) judges to volunteer for temporary duty as a circuit (appellate) judge. They do this to get a first-hand perspective of how the appeals court will evaluate their work.
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- mark_l_watson 14y agoAh, Judge Posner. Years ago I was the Creative Commoner for a while, Lawrence Lessig sent me a congratulatory email in which he said that I was "another Judge Posner" -- it took me a good bit of research to get the humor. Now I smile whenever I see Judge Posner's name.
- grellas 14y agoJudge Posner is indeed a brilliant and highly-respected jurist and his views on our problematic patent system will undoubtedly resonate and help the cause of reform. In his courtroom role as such, though, he can have only limited impact on the broader patent debate. The judge entered a tentative ruling saying that he was inclined to dismiss the entire case on the merits with prejudice (meaning, to kill all the claims in the case definitively so they could not be brought again by either party) on grounds that (a) neither party could prove actual damages on their claims, and (b) no good ground existed for the grant of an injunction. These conclusions are well supported on technical grounds by existing law. A damage case can be tossed, once and for all, if a party is conclusively shown not to be able to prove damages, as happened here. And a judge can decline to impose an injunction where the costs of doing so would be far out of proportion to the benefit it gives to the harmed party, where the wrongdoing party is not gaining great benefit from the wrong committed, and where the public would be more damaged than helped by such a remedy. What this really amounts to is a victory for common sense. Where patents involve essentially trivial rights (as often is the case with software patents especially), judges do not like to be used as tools to be manipulated in a broader commercial fight between litigants. In essence, this judge, looking at these facts, said "OK, kids, time to stop squabbling in the sandbox and go home." The lesson: pick your fights carefully and don't push claims that are essentially trivial. Judges, good as they are, can only do so much in a system that is defined by constitutional authorization, congressional implementation, and a specialized court set up by Congress that has become cozy with the patent bar. That said, Judge Posner can hardly be accused of being a judge who doesn't respect property rights or IP rights generally and his voice will carry far more impact than most. It will be necessary to have respected voices in the legal community say, "enough is enough" many times over before Congress will listen. This act may not be enough but it is a great push in the right direction.
- yesyes 14y ago"OK, kids, time to stop squabbling in the sandbox and go home." The problem is that these kids have weekly allowances in the hundreds of thousands. And most lawyers do not discriminate among potential clients by maturity level, they discriminate by net worth. They are happy to become instruments of a sandbox squabble, for a price. The kids don't do the squabbling. They pay lawyers to do it for them.
- Imagenuity 14y agoU.S. Circuit Judge Richard Posner is my new hero.
- gruseom 14y agoPosner is so famous and respected and such a polymath that his absence from the Supreme Court is conspicuous. Does anyone know why he's never been nominated?
- reader5000 14y agoProbably because at the times vacancies have existed he was not the strategically optimal candidate in the President's political maneuvering?
- tptacek 14y agoTwo big reasons: (1) he's not doctrinaire enough for either party (as a shorthand: Obama can't assure supporters Posner would uphold Roe, and Romney can't assure supporters he won't), and (2) at 73, he's way too old; nominating Posner is like giving the next sitting opposition President an extra nominee. Did you ever read the Becker-Posner blog?
- gruseom 14y agoOf course, he wasn't always old :) But probably always volatile. Amusing to imagine a senate confirmation hearing with a nominee who's ok with selling babies and LSD (per dpatru's comment). I haven't read their blog – should I?
- dpatru 14y ago"Posner's most significant contribution has been in law and economics, the influential legal movement he practically created. (...) Looking at the world through a strictly economic lens, he writes with a refreshing, parsimonious intensity. He also, occasionally, produces outrageous conclusions, such as his contention in a 1999 article in the literary journal Raritan that the rule of law is an accidental and readily dispensable element of our legal ideology, and his argument in favor of buying and selling babies on the free market in lieu of government-regulated adoption. Add his advocacy of legal marijuana and LSD, and it is clear that Posner -- despite his obvious brilliance -- will never sit on the U.S. Supreme Court." - Robert S. Boynton, The Washington Post (20/1/2002) from http://www.complete-review.com/authors/posner.htm http://www.complete-review.com/authors/posner.htm. I've also read that Posner was deemed too old by either Clinton or Bush. Presidents want to have a lasting influence on the Court.
- 3mpach3r 14y agoI think I like this guy...
- monochromatic 14y agoPosner is a drama queen, as usual. "I don't like what you're doing, so I'm going to ignore law and binding precedent to come to a decision that feels right and will get me some more publicity." Puke.
- monochromatic 14y agoWhat do you know, a judge from an appeals court that never hears patent cases doesn't know anything about how the patent system works. Why we let circuit judges sit by designation on cases that are literally outside their jurisdiction escapes me.
- zaphar 14y agoYour other comment I saw indicate an personal prejudice against this judge. I'm curious, what did he do to earn your ire?
- monochromatic 14y agoHe's just kind of a publicity hound. I find that his opinions are usually well-reasoned, so this one is kind of an exception. Basically, I think he's a decent judge, but I don't like him much. This time, though, I think he's out of his depth.
- peapicker 14y agoJudge sounds biased against the patent system. Would be interesting to see an appeal based on this.
- dschobel 14y agoOutside of his nigh-endless legal accomplishments, Posner is also allegedly the basis for the character of Mr. Burns on the Simpsons. His blog (http://www.becker-posner-blog.com/ http://www.becker-posner-blog.com/) is well worth a read. If you're an economic-utilitarian you'll love it, otherwise you'll probably think he's a monster, albeit a very rational one.
- Porter_423 14y agoI think you’re mis-interpreting his blogpost based on your own biases. The “dysfunctional patent system” is probably a comment on the organizational problems of the USPTO (i.e. it being understaffed and overloaded) rather than any inherent flaws in the patent system itself (e.g. what many think of the on-going patent lawsuit war). From what I’ve seen, judges and jurists tend to accept that the patent system is practically sound, and any complaints they make about it tend to be about the bureaucracy and inefficiencies of the USPTO. Especially since this judge is a very strong supporter of capitalism (in the linked blog itself), I’d guess that he’s also a strong supporter of intellectual property rights.
- wwweston 14y agoIt didn't seem to make much difference when Posner endorsed Keynes as "the best guide we have to the [recent economic] crisis"; I don't expect his comments will make much difference to discussion of the patent system. In both cases, you have too many actors invested in a different view.