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Judge Posner decries "excessive" copyright and software patent protections (arstechnica.com)
196 points by 001sky on Oct 2, 2012 | hide | past | web | favorite | 31 comments

If you're not familiar with Judge Posner, you should be. He's been a judge in the Court of Appeals (a set of courts right below the Supreme Court) since 1981. In addition to being a judge, he is the most cited legal scholar of the 20th century. He's only the only judge on the 7th circuit to reliably send clerks to the Supreme Court (indeed, Lawrence Lessig was one of those clerks). In short, he's an extremely acclaimed and well regarded jurist. And to boot, his opinions are a pleasure to read (http://www.projectposner.org/case/) and sometimes quite biting (http://www.ca7.uscourts.gov/tmp/LZ19Y7FG.pdf).

Another introduction to Posner is his famous analysis of The Economics of the Baby Shortage in which he argues in favor of creating a legal market for buying and selling babies:


He is an intellectual, no doubt. But with his outspoken views on adoption, abortion, drugs etc. I don't think he will gain much influence outside academic circles.

And as much as I would have liked to see him on the Supreme Court, liberal presidents usually don't appoint libertarian justices and conservative presidents don't appoint someone with such outspoken liberal views. Maybe a second term president could have appointed Posner but would he have survived the senate confirmation?

That PDF link is a 404.

It's Gonzalez-Servin v. Ford Motor Co. wherein Posner chastised the plaintiffs' attorneys for ignoring certain unfavorable case law. The published opinion contains images of an ostrich and a lawyer burying their heads in the sand.


Posner's positions, and the frank and open manner with which he expresses them, are a much needed breath of fresh air from a legal system that is all too esoteric. Especially with regard to patents.

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.

> Posner's positions, and the frank and open manner with which he expresses them, are a much needed breath of fresh air from a legal system that is all too esoteric. Especially with regard to patents.

To be fair, Posner is also a poster-boy for judicial activism. Much of what seems "esoteric" in law is actually the attempt to give effect to fine distinctions made in statutes and in previous cases. If you ride roughshod over all that and decide cases according to sweeping principles, it's much easier to be open and succinct.

From my experience of filing a patent, the lawyer wrote the document but we still spent a fair bit of time on the phone and went through a couple of drafts until I was happy with all the claims.

The full piece is an interesting read on the Becker-Posner blog as well - http://www.becker-posner-blog.com/2012/09/do-patent-and-copy...

Posner is an appeals court judge, but last summer he heard Apple v. Motorola while he was temporarily sitting as a trial judge. He dismissed the claims of both companies "with prejudice" which means the case cannot be filed again elsewhere.

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)


I don't know how the appointment of judges works beyond the local level where I vote. What would it take to get Posner appointed to the Federal Circuit Court of Appeals? It seems his worldview is much needed there.

Posner has been a Judge on the Court of Appeals since 1981, on the 7th circuit. SCOTUS was never in the cards for him. He's an intellectual giant, but he's been on record for a long time in favor of the legalization of marijuana and hard drugs.

I was asking specifically about this from the article "And Posner's seat on the Seventh Circuit Court of Appeals doesn't give him a direct role in shaping patent policy because (as we discussed yesterday) the Federal Circuit Court of Appeals has exclusive jurisdiction over patent appeals. Posner was able to hear the Apple v. Motorola case because he was temporarily sitting in as a trial judge."

Ah I see. I'm not aware of an instance of an appellate judge moving to another circuit. I suppose technically the President could nominate him. I actually dislike that the Federal Circuit gets all patent cases. The end result in no circuit splits and SCOTUS ends up hearing a lot less patent cases than it should.

He's probably one of the most influential judges in the country outside the Supreme Court Justice, and is more influential in legal academia than even most of the Justices. He doesn't have to sit on the Federal Circuit to influence policy. He has a pretty big soap box as a judge on the 7th Circuit and a professor at the University of Chicago.


Richard Allen Posner (born January 11, 1939) is an American jurist, legal theorist, and economist who is currently a <judge on the United States Court of Appeals for the Seventh Circuit in Chicago> and a Senior Lecturer at the University of Chicago Law School. He is an influential figure in the law and economics school of thought.

--Maybe he needs a promotion to SCOTUS ? =]

"Posner has written several opinions sympathetic to abortion rights, including a decision that held that "partial-birth abortion" was constitutionally protected in some circumstances."

Never gonna happen.

(not trying to turn this into an abortion conversation, just saying that once that becomes well-known, no way he gets past the senate)

Isn't that why the constitution provides for <Nine> justices, though? ;) Is it not odd(?) that USA appoints people with no ideas ever expressed,[1] over peoplel like Posner who actually have something important to say? The purpose of having Nine is to allow for differences of opinion on minor things (in the scheme of Statesmanship), while having the best and the brightest contibute unique expertise.



[1] http://www.nytimes.com/2010/06/30/us/30kagan.html

Kagan Follows Precedent by Offering Few Opinions

Ms. Kagan’s responses, during a long and sometimes tense day of parrying with members of the Senate Judiciary Committee, were similar to those of Supreme Court nominees past. But unlike her predecessors, Ms. Kagan wrote a 1995 article calling for judicial nominees to be more forthcoming. On Tuesday, minutes into her testimony, she backpedaled, saying she now believed it would be inappropriate even to answer questions that might “provide some kind of hints” about her views on matters of legal controversy.

Isn't that why the constitution provides for <Nine> justices, though?

The number of justices on SCOTUS isn't set by the Constitution, it's set by Congress. Throughout history there have been as many as 10 and as few as 5 justices.

Is it not odd(?) that USA appoints people with no ideas ever expressed, over peoplel like Posner who actually have something important to say?

Welcome to U.S. politics.

Ah, good clarification on the mechanics.

He'd be a great, inspired pick for anyone but the real reason he won't be appointed is his age. Politically the dominant strategy is to appoint justices that can be expected to hold the seat for at least two decades.

Yes, I think he's got a problem there, because his best chance is the Democrats picking him, but his best fit is with the Republicans, for whom he isn't orthodox enough. If a Democratic president picked him, he'd probably be confirmed: he has enough "non-left" background for bipartisan credibility (a Chicago-school law-and-economics background), but has enough left-leaning positions that at least some Dems shouldn't find him impossible to support. But, he's 72, which limits his appeal as a bipartisan choice. And as a straight Republican nominee has has problems on things like abortion. So I would guess he's not destined for the Supreme Court.

Federal judges are appointed by the president. Poser is on the 6th circuit (appointed by by Reagan, maybe?) and I'm not sure I've ever heard of a judge going from one circuit to another.

He's on 7th Circuit, sitting in Chicago. The 6th Circuit doesn't cover any places worth noting. :-P

The 6th Circuit covers both Nashville and Detroit and therefore has been the source some music-specific copyright case law. For example, about sampling. See: Bridgeport Music, Inc. v. Dimension Films for an example.

The 6Th Circuit: Home to the Hatfields and the McCoys, and probably more than a few bootleggers. =] I can see why it would spring to mind. All this IP talk must have put it on the mind.


Y'all might find Posner's recent battle of words with Scalia interesting: http://www.huffingtonpost.com/eric-segall/scalia-posner_b_18...

Two of the sharpest wits in the judiciary those two.

The original blog post is one of a pair of related posts by Gary Becker and Steve Posner. The other was discussed at http://news.ycombinator.com/item?id=4595153.

Can someone elaborate on what he means with this line:

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

The characteristic of the pharmaceutical industry that is usually cited as making patents essential is that it costs an average of $150 million to get a new drug through FDA approval. Without the temporary exclusion that patents provide, there would be no way to recoup this cost.

I am firmly of the opinion that patents are used for this because no legal alternative has been provided. But it is easy to imagine a more targeted property right for this case that would serve the same purpose as patents, except more efficiently. And my standard example of an inefficiency of the current situation is that there is good evidence that hookworm is an effective treatment for Crohn's disease, but since hookworm is not patentable, there is no prospect that this treatment will ever get evaluated.

I'll be the first to admit that although little good ever comes from Chicago, this guy has the right idea.

CGI version to make the story more amusing http://www.youtube.com/watch?v=Tlg9zMvLFwk&feature=plcp

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