Columnist Joe Nocera recently interviewed Judge Richard Posner on the topic of patent law and lawsuits in the U.S. for the New York Times (article). Judge Posner is possibly the most respected living judge in the U.S. - even more so than most members of the Supreme Court. For nearly 40 years, Judge Posner has written extensively on the application of economic principles to various legal issues. Recently, Judge Posner “decided it would be fun to do patent trials,” and so he has increasingly volunteered to hear cases involving patent disputes.
His attention to patent issues comes at a time when many in the technology sector regard patents as tax on innovation, rather than an incentive to innovation as envisioned in the U.S. Constitution. While recognizing that patents have a place in innovative industries such as pharmaceuticals, Judge Posner argues that patents serve no useful economic purpose in other sectors, such as smartphones: “When you are dealing with products that have very short lives, you often don’t need patents because by the time competitors wise up, you’ve moved on.”
Judge Posner recently applied this logic to a lawsuit between two of the most hyper-litigious players in the smartphone sector, Apple and Motorola
. Dismissing the case with prejudice, he wrote that neither party was able to adequately demonstrate that they were entitled to any sort of monetary damages. Meanwhile, he also noted that, having committed to license smartphone technology on “fair, reasonable and non discriminatory” (FRAND) terms, Motorola could hardly argue that an injunction would be necessary because monetary damages would not be sufficient compensation.
Apple has appealed the decision.