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Judge Posner argues against use of software patents

updated 12:49 pm EDT, Thu July 5, 2012

Judge tossed Apple patent case against Motorola

The judge who recently dismissed an Apple patent infringement case against Motorola, Richard Posner, has questioned the need for software patents in a new interview with Reuters. He argues that the smartphone industry is suffering from a "proliferation of patents," and that software patents may not be necessary, since writing a program requires much less investment than what a pharmaceutical company, for instance, might put into developing a new drug. "It's not clear that we really need patents in most industries," he says.

The judge's views may have affected the Apple v. Motorola case and others. Many in the industry have complained, though, that the smartphone industry is suffering under a sea of lawsuits, many of them initiated by Apple, or filed in response. Aside from Motorola, Apple's main targets have been Samsung and HTC.

Posner supports the view that smartphone makers are using patent suits as a competitive weapon. He points out that paying a legal team is a "small expense" for corporations like Apple, which had $110 billion in cash and securities alone at the end of the March quarter. "It's a constant struggle for survival," he comments. "As in any jungle, the animals will use all the means at their disposal."

Before his death, Apple co-founder Steve Jobs infamously claimed that Google's Android platform was "stolen" from the iPhone, and that he was willing to go "thermonuclear war" over it. Apple has mainly directed its lawsuits against Android device makers, and may be hoping to slow the platform down; while the iPhone continues to sell extremely well, Android phones have been catching up or surpassing it by some metrics.

Regarding Apple v. Motorola, Posner says he had no choice but to toss the lawsuit. "I didn't think I could have a trial just for fun," he explains. One argument he made was that it was folly to ban a whole phone based on patents covering minor features, such as smooth streaming video.

by MacNN Staff



  1. Fonejacker

    Joined: Dec 1969


    Look at the mirror Judge Posner

    Ask yourself, do we really so many lawyers and judges, who DO NOT know what the h*** they are talking about? Do we need old farts, who are overpaid civil servants, who have no understanding of the real world. Why do lawyers and judges appear to be jackasses, most of the time.

    Comment buried. Show
  1. Paul Huang

    Joined: Dec 1969


    This old crock needs to

    drop dead. He is probably still using paper cups as a communication tool.


  1. DiabloConQueso

    Joined: Dec 1969


    We need patents...

    ...just maybe not as varied and generic as they stand today.

    Patents are a powerful tool in helping a small businessperson get that head-start and compete with companies much larger than themselves. They allow a good, original idea to be used solely by a single entity for a temporary period of time -- if patents didn't exist, megacorporations would simply copy any idea, throw a bajillion dollars in advertising behind it, and effectively drown out the guy who came up with the idea.

    It's not black-and-white (get rid of all software patents vs. keep the existing system) -- the need for patents is apparent, but the need for patent reform is even more so.

  1. Geoduck

    Joined: Dec 1969


    He's absolutely right

    This has been his business, dealing with software patent lawsuits, for over a decade. I'll trust his opinion over various online bloggers and commeters of unknown slant, or bias.

  1. climacs

    Joined: Dec 1969


    I disagree

    I think there is a middle ground between the current software patent paradigm - which is ridiculous - and just throwing out software patents (and other types of patents, which he seems to be including) entirely.

  1. drbroom

    Joined: Dec 1969


    It's not that we don't need patents...

    What we don't need are patent trolls...

    So many times when we read stories about companies being sued it's because a "troll" purchased a patent from an inventor and is trying to make money by suing on the patent.

    I think there should be a lock on a patent. It can only be protection to the inventor or the company that the inventor worked for when he or she created the item. IP (Intellectual property) should only be sold as part of a 'manufacturing' process or company sale and only offer the patent protection if the company has employees that support the IP. It should never be sold as just a way to make money.

    Just my $0.02

  1. andrewbw

    Joined: Dec 1969



    Love it. Someone saying a federal judge should drop dead.

    Paul Huang, you are an internet treasure. Don't ever change. Your posting history on MacNN is an absolute laugh riot. Some of the best trolling I've ever seen on any message board; even better than some of the top material on 4Chan.

  1. Bobfozz

    Joined: Dec 1969


    It's clear Posner has never...

    invented ANYTHING patentable. It is truly amazing that when one finalyl thinks of somethign worthwhile the first thing they do is go to lawyer to prevent others from ripping them off.
    Posner should have been taken off of this case. Apple should sue on appeal that this judge already had preconceived opinions--he is supposed to be ruling on FACT not his personal desires. Yes, patent reform is a good idea (non transferable rights for example) but to throw the baby out with the bath water, this guy has his head up his robes. I am sure he MEANS well, but that is not what the law is about, or, ever was.

  1. ggirton

    Joined: Dec 1969


    Posner may be right

    He may be right, he may be reasonable about whether there should be patents, but since there ARE patents, shouldn't he try the case? The reasoning about how including someone else's IP in a phone shouldn't block the phone -- I don't buy that. Isn't that like saying "well, I only stole $1000, and since you caught me I'll give it back. And we're good, right? Even though you sure could have used that money ... it wasn't that much".

  1. climacs

    Joined: Dec 1969


    patenting 'slide to unlock'

    seems to me like patenting a light switch - 'flip to turn on or off'

    imagine if patents had been applied to sorting techniques in computer programming - methods to sort items, one from the other.

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