Judge Posner decries "excessive" copyright and software patent protections

Though not directly related to the position Posner takes in his most recent blog post, it's ironic to consider the fact that patents are filed not by the inventors themselves, but lawyers who represent them. To me, that begs the question of whether or not "someone of ordinary skill in the art" could actually replicate the invention disclosed in any given patent. In reality, depending on the invention, it doesn't seem likely that the inventor could even replicate her own invention using solely her patent as a guide. This is a result of patents that are too vague, too general, and too far removed from the actual technology they purport to disclose.

In his recent writing, Posner has chosen to make the point that companies use either defunct or trivial technology to halt innovation through patent litigation. Recently, the culprit has been Apple, but Apple is, of course, not alone. In the fight against patent bullying, Posner's conclusions are, for the most part, right on target.

From his opinion (which really opened my eyes to the inanity of patent litigation):

In its latest written and oral submissions Apple attempts what I told its legal team at a pretrial conference I would not let it do in the liability trials then envisaged: turn the case into an Apple versus Motorola popularity contest. Apple wanted me to allow into evidence media reports attesting to what a terrific product the iPhone is. I said I would not permit this because the quality of the iPhone (and of related Apple products, primarily the iPad) and consumers’ regard for it have, so far as the record shows, nothing to do with the handful of patent claims that I had ruled presented triable issues of infringement. Apple’s “feel good” theory does not indicate that infringement of these claims (if they were infringed) reduced Apple’s sales or market share, or impaired consumer goodwill toward Apple products. Typical is the statement in Apple’s brief of June 18 that “an Apple survey identified watching streaming videos from YouTube among the top ten planned activities for consumers using iPads in the United States.” The ‘263 patent in issue in this litigation is not a claim to a monopoly of streaming video!

Apple is complaining that Motorola’s phones as a whole ripped off the iPhone as a whole. But Motorola’s desire to sell products that compete with the iPhone is a separate harm—and a perfectly legal one—from any harm caused by patent infringement.

I note, amplifying earlier points, the absence of evidence that if Motorola is infringing the patent claims at issue, it is imposing a significant cost on Apple. Consider the ‘002, which Apple charges is infringed by Motorola’s preventing partial obstruction of its smartphones’ notification windows. There is no evidence, and it seems more than unlikely, that occasional partial obstruction would appreciably reduce the value of Motorola’s smartphones to consumers—Apple didn’t even bother to install a notification window on its devices until last year. Consider next the ‘949, which Apple contends is infringed by Motorola’s enabling customers who buy a Motorola smartphone with a Kindle reader pre-installed to turn pages by tapping on the screen rather than by swiping a finger across it (which actually is more like turning pages than tapping is). Consider the ‘263, the realtime patent, alleged to be infringed by Motorola’s adopting a method for avoiding glitches in “real time” communications (such as movies) that has not been shown to provide a superior experience to consumers than alternative, noninfringing realtime software or hardware or otherwise drive consumer demand for the iPhone. And consider the ‘647 (structural linking and detection), which also provides unproved consumer benefits.

Note the Judge was ruling on an injunction which "requires a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, 547 U.S. 388 (2006)

http://fortunebrainstormtech.files.wordpress.com/2012/06/6-2...

Two of the sharpest wits in the judiciary those two.

"But the conditions that make patent protection essential in the pharmaceutical industry are absent."