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As welcome as this news may be from technical and common sense standpoints, I'm not sure if it's a good thing from a legal one. This whole affair seems to me (and I may be wrong) like one judge deciding that the law is bad, and thus that the suits are meritless. While this seems great as long as you agree with the judge's view, I think it opens a pandora's box.

Imagine if a right-wing Christian judge tosses out anti-creationism lawsuits, or pro-RIAA judges toss out anti-RIAA lawsuits. Even worse, imagine a judge indirectly on the RIAA payroll! Granted, these are all a long ways away from this case, but I believe that applauding this judge's actions is the wrong reaction.




I don't follow. If a judge tosses out a bad suit, it is a good thing. If they toss out a good suit, that's bad. We want judges to do the right thing.

Your view is what: that we don't want judges doing the right thing because the legal systems is somehow karmicly bound to follow it with a bad decision in some other case?

To hell with that. Posner is a hero right now. I say we celebrate.


We want judges to uphold the law, not rewrite it. We have legislators for doing that, and it is very much by design that those jobs are separate.

If there are bad laws on the books that are only sporadically enforced, then people are being denied the very fundamental right of equal protection. That's never good in the long run.


If you want judges to uphold the law, you must remember that the law allows for jurisprudent behaviour from judges that shape internal problems of the law and legal systems.

That is to be upheld too. There are bad cases that try to use bad laws, this was the one. You seem to be on the other side of this but that doesn't make it so that there was any 'rewriting' done by this judge. He upheld the law as in, sides were not allowed to give proof of infringement based on their own 'specialists'. Because that can turn the court to a circus as is always the case when people end up comparing rectangular shaped objects. This set the tone for the conclusion in a massive patent troll case. This may happen more and more from now on and it will bring needed change.


Except that those jobs aren't separate. They overlap, by design. Congress has some enforcement powers. The executive branch has some lawmaking (i.e. regulatory) powers. The judicial branch has oversight over both. Holding a bad law as uneforceable is one way that the courts can provide feedback to congress.


In the US, judges rewrite the law with every ruling. Since the precedent established by a case is used in future decisions, the "real" law (the one which your actions will be compared against in court) is the base law passed in congress plus all of the precedent that has been piled on top of it.


The argument is more that unchecked power is a dangerous thing because it's a double edged sword, and that we shouldn't get happy that the unchecked power was exercised in our favor this time.


What's unchecked about this? Have appellate courts suddenly disappeared?


I dunno, it's not really my argument.


The argument is that it's Congress's job to define patent law, not the judiciary's.


In our tripartite system it is part of the judiciary's job to keep the other two parties in check, just as is true for all the branches. The idea that judges should just stfu and not "legislate from the bench" is a ridiculous invention by the modern neo-con movement.

The current state of the patent system is at odds with the intent of patents as vaguely defined in the Constitution and clearly fair game for extensive judicial review.


I don't think Posner is disagreeing with the law, although he may be interpreting it in a somewhat unusual way. He gave detailed reasons why he threw out the case, mostly (AIUI) that neither side had adequately estimated the financial damage caused by the other company's infringement and that asking for a competitor's product to be outright banned was too harsh a penalty. This does seem to be in contrast with the Oracle-Google lawsuit, where there was a full trial to determine infringement and then afterwards they worried about the damages.


In Oracle-Google, there was plenty of pre-trial work on damages. IIRC, Oracle had to do three rounds of damages reports before the trial (the second and third because the previous reports were not satisfactory). Post-trial they would have determined what the damages actually were, but, in order to get their trial, Oracle did have to make a showing that there were damages worth trying.

Oracle had it easier because there were willing to license the patents and copyrights at issue (and Sun had even talked to Google about this). That made the lost licensing revenue a helpful data point with respect to damages, but with or without that there was a hurdle Oracle dealt with that Apple/Motorola didn't (based on Judge Posner's ruling).


Are you basing your determination from reading Judge Posner's opinion or the tech writer's summary at arstechnica?


Honestly, the ars summary. Make of that what you will.




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