The US patent system is out of kilter

The US judge who threw out Apple’s Patent trollage is questioning whether patents should cover software or most other industries.

Richard Posner is a respected jurist who sits on the 7th US Circuit Court of Appeals in Chicago.

He told Reuters this week that the technology industry’s high profits and volatility made patent litigation attractive for companies looking to damage competitors.

Posner said that the IT industry was a constant struggle for survival and just like the ungle, the animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem.

Posner ended Apple’s lawsuit against Google’s Motorola Mobility unit when he canceled a closely anticipated trial between the two and rejected the iPhone maker’s request for an injunction.

He thinks that some industries, like pharmaceuticals, have a better claim to IP  protection because it took a lot of investment to create a successful drug.

But software and other industries’ innovations cost much less, he said. Companies benefit tremendously from being first in the market with gadgets. He said that such companies would get that benefit they would still get if there were no software patents.

Posner said that it was not clear that we really need patents in most industries. When a gadget like a smartphone has thousands of component features, and they all receive legal protection, it gets a bit silly.

When he cancelled the trial, Posner said an injunction barring the sale of Motorola phones would harm consumers. He also thought it silly that you could ban an entire phone based on patents that cover individual features like the smooth operation of streaming video.

He said that Apple could not claim a monopoly of streaming video just because the iPhone could do it.

In this he is at odds with his fellow US District Judge Lucy Koh in San Jose, California, who granted Apple two  injunctions against Samsung.

Posner also told Motorola it could not have an injunction against the iPhone because the company had pledged to license its patent on fair and reasonable terms to other companies in exchange for having the technology adopted as an industry standard.

He said that the smartphone litigation wars were merely taking the opportunities that the legal system offers. He thinks that this is fair enough but the law should be changed.

Posner had actually wanted to preside over a trial between Motorola and Apple, but had no other choice than to toss the case out. He told Reuters that he didn’t think he could have a trial just for fun.