
Famous judge spikes Apple-Google case, calls patent system “dysfunctional” - bokchoi
http://gigaom.com/mobile/famous-judge-spikes-apple-google-case-calls-patent-system-dysfunctional/
======
grellas
Judge 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
"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.

~~~
chives
"OK, kids, time to stop squabbling in the sandbox and go home."

I could say the same for our judicial system up until now. Slam them all day
if you'd like (referring to the judge), but all the patent troll rulings up to
this point has precipitated this state of affairs.

------
arjunnarayan
This 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/>

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.

~~~
j-b
An 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.h...](http://www.becker-posner-
blog.com/2012/06/capitalismposner.html)

~~~
foz
That post is an excellent read. He gets right to the heart of the biggest
challenge facing the US right now. However there are no solutions put forward,
a job which is unfortunately left up to the politicians.

~~~
crusso
Well, the solution is to elect politicians who are capable of understanding
those concepts while having the ethical character necessary to act on behalf
of our society.

Unfortunately, the electorate is mostly interested in Lindsay Lohan's latest
car wreck and Miley Cyrus's engagement.

------
pg
What 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?

~~~
portman
I would like Paul Graham, Richard Posner, and perhaps Mike Bloomberg to have a
long, meandering dinner party wherein they discuss and solve America's most
important problems.

It worked for Jefferson/Madison/Hamilton 222 years ago. This could be exactly
what we need.

~~~
te_chris
By the rich for the rich then? Sounds about right.

Seriously though, you want 3 privileged, white men to decide the fate of your
entire country? I'm all for smart people coming up with solutions, and I know
your comment wasn't mean't to be taken too seriously, but this is just
ridiculous. Technocracy is not the answer, no matter how much technologists
would love it to be.

~~~
reader5000
I don't believe a racial attack is in any way an appropriate response to
portman's comment.

~~~
te_chris
That wasn't a racial attack, it was pointing out that the 3 people who he
proposed to "fix" everything were among the most privileged people on the
planet (in part due to the colour of their skin). This was done to try and
make the point that, given past history, another round of letting the most
privileged people on the planet come up with "solutions", probably won't get
us very far.

~~~
derleth
> That wasn't a racial attack

You explicitly mentioned race. It's racist.

~~~
wpietri
I see. And if I point out that the KKK is all white dudes, then I'm also being
racist? What a meanie I am!

Pointing out the unbalanced composition of a group meant to solve society's
problems is not in any way racist. It's a specific application of the general
rule that humans have hard time understanding the experiences of people
different than themselves, especially when there's privilege involved.

~~~
reader5000
Unlike the kkk, there is no indication the OP chose the three men on account
of their race. To therefore attack them on the basis of their race is an ad
hominem racial assault. Furthermore, obviously the three are privileged
compared to a kid born in, say, Ethiopia, but I don't see how that
illegitimates them for a discussion on America.

~~~
wpietri
It doesn't mean they can't participate in the discussion. It does mean that if
they're the only people in the discussion, there's probably going to be some
things wrong with the outcome.

------
CurtHagenlocher
Nice 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
Ha! 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!

------
grecy
Wow, 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.

------
bokchoi
The linked blog post from Posner is excellent:

[http://www.becker-posner-
blog.com/2012/06/capitalismposner.h...](http://www.becker-posner-
blog.com/2012/06/capitalismposner.html)

~~~
bryanlarsen
The number of comments disagreeing with his post certainly helps explain why
we've gotten in such a mess.

~~~
magila
To 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
Since he was one of the contributors to _Capitalism: The Unknown Ideal_ (1966,
<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
Ok, 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.

------
neilk
What 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
The 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
In 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.

~~~
neilk
So from what you are saying it sounds like Posner volunteered for this. He
wasn't drafted by someone else.

Personally I think that's fantastic.

~~~
peapicker
Or an indicator of self-selecting bias, which may result in an interesting
appeal.

------
mikek
> [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.

~~~
jsprinkles
I'm beyond disappointed that the article is about the most important ruling
regarding patent law in recent memory, and the overwhelming majority of this
thread is arguing about the geometry cited in the judge's order. Rational
people understood what he meant, even if _maybe_ it's not 100% mathematically
sound.

This pedantry really frustrates me, and it extends beyond Hacker News. It's
pervasive in conversations I've been having recently as well, as if we're all
looking for the slightest thing wrong with what someone has said so that we
can achieve some kind of acclaim by pointing it out. I made a point recently
about how people need to work together and cited a _Star Trek_ film as a joke,
and some jackass in the group decided to go to the mat with me on the fact
that I had cited the wrong _Star Trek_ film (my quote was in _III_ , not _II_
).

There is nothing more frustrating than a pedant. It seems like it's tech
people that do it most, too, which makes sense, but still.

~~~
ars
> and the overwhelming majority of this thread is arguing about the geometry
> cited in the judge's order. Rational people understood what he meant, even
> if maybe it's not 100% mathematically sound.

> This pedantry really frustrates me

People are well aware that they are nit picking, but they enjoy the resulting
discussion! Intellectually inclined people enjoy discussing minutia with other
like minded people. They are perfectly aware that it makes no difference, and
they don't care - it's just something interesting to talk about. It's no
longer nit picking about the original (i.e. the practical use is settled), at
that point it becomes a discussion for its own sake.

Do you never learn or do anything just for the sake of doing it, rather than
in order to accomplish something useful?

> and some jackass in the group decided to go to the mat with me on the fact
> that I had cited the wrong Star Trek film

He was showing off. If you don't wish to participate in the Star Trek
memorization culture just ignore him - his comment was geared to other members
of his group who do like doing that. Or simply acknowledge that he was right
and move on. Clearly you don't care about that topic, so that acknowledgement
shouldn't cost you too much ego.

That's also the point of threads: You can ignore an entire thread that is off
topic - but it also gives people who found something interesting a place to
talk about it without disturbing the rest of the conversation.

~~~
jsprinkles
Your entire comment would be wise were it not for, both in the case of my
anecdote and this original comment, the observation that someone is incorrect.
It's one thing to enjoy intellectual pursuits, it's another to put down
others, belittle them, or critique their opinions because of a perceived
mistake they made (such as the geometry). It's doubly worse if the mistake has
no bearing whatsoever on the actual opinion, like the finding and the opinion
I was sharing in my anecdote.

Also, I like to think of myself as intellectually inclined, and I simply hate
discussing and arguing minutia like this. It just doesn't matter, and my time
is limited. I don't want to argue with you on what Dickens meant by a certain
character's dialogue in _David Copperfield_ , I'd just like to enjoy it as a
great novel. (That is fairly specific, and there are instances where it's fun
to think about, but in general it isn't.)

> Clearly you don't care about that topic, so that acknowledgement shouldn't
> cost you too much ego.

Not about my ego, oddly (most everything else is, but this isn't). It
undermines the opinion or discussion at hand from everybody else's
perspective, however subtly. It's an annoying opportunity to show off, as you
say, like those people that get up at conferences and ask a question that
shows off at the expense of everyone listening. Both are distractions from the
topic and are a detriment to the conversation, regardless of their original
purpose.

~~~
larrys
"it's another to put down others, belittle them, or critique their opinions
because of a perceived mistake they made (such as the geometry)"

I would guess that people who are in certain professions which require
precision would be _more likely_ to act this way. Because lack of precision
would cause the plane to crash or the bridge to fail or the code to croak.
Medicine (drugs) for example is not really super precise when you think about
it. Dosing isn't so critical that if you take a little more or a little less
you end up dead or sick. You have latitude. (Of course someone who knows more
than I about this would point out that coumadin (Warfarin) dosing is quite
critical and correct me.)

Have you found that to be the case in your IRL conversations?

~~~
jsprinkles
No. Most of my conversations revolve around my career, and I'm a system
administrator. Bike shedding I had already identified to be a problem.
Pedantry like this I'm starting to notice as well.

------
gdubs
I notice that NeXT is listed as a co-plaintif - does anyone know why? Weren't
they completely acquired by Apple?

~~~
bretpiatt
Not 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.

------
gruseom
Posner 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?

~~~
tptacek
Two 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
Of 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?

------
ecocentrik
I'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.

~~~
ChicagoTown
Patent 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.

------
SagelyGuru
He called it right, as it is.

------
eykanal
I can't read the embedded Scribd document (scribd is blocked here)... what
term does Motorola claim has a "plain and ordinary meaning"?

~~~
js2
The 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-
appl...](http://www.fosspatents.com/2012/03/judge-posner-praises-apples-
claim.html)

~~~
WildUtah
Downvoted for referencing fosspatents. You wouldn't cite an Aryan Nations site
on human genetics, even if they were quoting facts. Likewise FM on IP.

~~~
js2
I invite you to find the original source for the quote, and I'll change the
link.

------
dschobel
Outside 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/>) 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.

------
wwweston
It 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.

------
mark_l_watson
Ah, 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.

------
peapicker
Judge sounds biased against the patent system. Would be interesting to see an
appeal based on this.

------
3mpach3r
I think I like this guy...

------
Imagenuity
U.S. Circuit Judge Richard Posner is my new hero.

------
antithesis
> 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.

------
monochromatic
What 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
Your other comment I saw indicate an personal prejudice against this judge.
I'm curious, what did he do to earn your ire?

~~~
monochromatic
He'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.

------
monochromatic
Posner 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.

