Feature Article

July 06, 2012

Judge Who Ruled on Apple vs. Motorola Mobility: Patent System Can't Keep up with Tech Industry

The judge who ruled on an important case has said that the patent system cannot keep up with the technology industry.

U.S. Circuit Court of Appeals judge, Richard Posner said the industry's profits and the cutthroat nature of the business often prompted them to sue competitors instead of competing in the marketplace.

“It's a constant struggle for survival," Posner told Reuters. "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 sits on the bench of the seventh U.S. Circuit Court of Appeals in Chicago. He recently ruled a case between Apple and Motorola Mobility, owned by Google that had been dragging on since 2010. The case, which would have affected the legality of Android phones, was tossed out. A request by Apple for an injunction on sales of Motorola Mobility phones was also denied. Motorola, in turn, was barred from going after Apple.

He volunteered for the case, saying that he was “truly neutral” because he used a BlackBerry instead of an iPhone or an Android phone.

The suit, which Posner stopped before it even got to a trial, is part of Apple's ongoing battle with Google's Android platform. Steve Jobs, in a posthumous biography, described the effort to stop Android as “thermonuclear war.”

For Posner, who was appointed by President Ronald Reagan in 1981, the case illustrates just how far patent has to catch up to how the technology industry works. It's still not always clear what's patentable and what isn't.

While some products like pharmaceuticals can justify patents because of how much work it takes to create and market new drugs, the need for software patents becomes much less justified. Software and hardware is much less expensive to develop than medicine.

“It's not clear that we really need patents in most industries,” he said. Furthermore, the number of technology-related patents is enormous, with even the smallest component of many devices being patented.

In the tough smartphone market, the need to get ahead often trumps the cost of a lawsuit. Posner said that Apple's suit was “a small expense” for the Cupertino, Calif.-based manufacturer of the iPhone.

As for the smartphone war itself, Posner intends to remain neutral. “I'm not actually that interested in becoming part of the smartphone generation,” he told Reuters.

Want to learn more about patents in the telecom industry? Then be sure to attend Synopsis Under IP/Patents Telecom Sourcing Conference (SUITS), collocated with ITEXPO West 2012 taking place Oct. 2-5, in Austin, TX. The SUITS Conference is launched to advance the legal knowledge of innovators of telecommunications including developers, implementers, licenses, licensors, end users, carriers and enterprise patents. Learn how to be aware and prepare to protect your most valuable assets, individual and company patents and intellectual property stored in the Patent Eco System or being held for security. For more information on registering for the SUITS Conference, click here.

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Edited by Brooke Neuman

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