US appeal court judge Richard Posner has finally said the unsayable: that Apple's and other tech firms' patent battles are a ridiculous abuse of intellectual property law
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US appeal court judge Richard Posner ridiculed Apple's arguments in his landmark dismissal of its patent case against Google. Photograph: Sarah Lee for the Guardian
There are, I submit, good grounds to argue that Richard Allen Posner, judge of the United States court of appeals for the seventh circuit, is the most infuriating man on the surface of the planet, but they are not the ones you'd expect. He is not, for example, a horrible human being: on the contrary, people whose judgment I respect describe him in unequivocally admiring tones. Professor Tim Wu of Columbia Law School, for example, calls Posner "probably America's greatest living jurist". And my friend Larry Lessig of Harvard once wrote of him that "there isn't a federal judge I respect more, both as a judge and person".
So the problem with Posner is not his awfulness, but the reverse: his astonishing intelligence, energy and provocative creativity. For in addition to being a very senior judge, he is also a distinguished legal academic at the University of Chicago Law School (the Journal of Legal Studies describes him as the most cited legal scholar of the 20th century). With Gary Becker, a Nobel laureate in economics, he maintains an extraordinary blog in which the two men exchange thoughtful, essay-length arguments on an almost daily basis. He is the author of more than 40 books, many of them on legal matters, but also ranging over much wider topics: a study of public intellectuals, for example; a treatise on ageing; and works on terrorism, law and literature and democracy. And – here's the really annoying bit – none of them are crap. So to those of us who struggle to produce a book a decade, or even a column a week, Posner stands there as a permanent, reproachful reminder of our inadequacies and indolence.
What makes him such a stimulating thinker is that he has little time for conventional wisdom or political correctness. He's not enamoured of animal rights, for example, and is famous for his belief that economics provides a useful perspective for thinking about law. Thus in a recent argument with Becker about New York mayor Michael Bloomberg's proposal to ban the sale of large sugary drinks, Posner writes: "I am not particularly interested in saving the obese from themselves. I am concerned about the negative externalities of obesity‚ the costs that the obese impose on others. Obesity kills, but slowly, and en route to dying the obese run up heavy bills that, to a great extent, others pay."
What brings Posner to mind this Sunday morning, however, is not his views on obesity but on intellectual property. You may have noticed that in the last few years the world's biggest technology companies have become lavish patrons of the legal profession. Apple, Google, Samsung, HTC, Microsoft, Oracle, HP, Amazon and others have being suing one another in courts around the globe, alleging that they are infringing one another's patents. The resulting bonanza for lawyers has long passed the point of insanity, but up to now the world's courts seem powerless to make the litigants see sense. As a result, judges find themselves allocated the role of pawns in what are effectively business negotiations between global companies.
Until now. What happened is that Posner, in an unusual move, got himself assigned to a lower court to hear a case in which Apple was suing Google (which had purchased Motorola in order to get its hands on the phone company's patent portfolio) over alleged infringement of Apple's smartphone patents. Posner listened to the lawyers and then threw out the case. But what was really dramatic was the way he eviscerated the legal submissions. At one point, for example, Apple claimed that Google was infringing one of its patents on the process of unlocking a phone by swiping the screen. "Apple's argument that a tap is a zero-length swipe," said Posner, "is silly. It's like saying that a point is a zero-length line."
Posner's formal judgment was issued on 22 June. He dismissed the case, writing in his opinion that neither side had proved any damages caused by the other party. More significantly, his ruling came "with prejudice", which means neither side can reopen the case to attempt to prove damages for a second time.
This is a landmark judgment, one of those moments when someone – in this case an eminent judge rather than a small child – points out that the emperor is indeed stark naked. Patent wrangling between technology companies has become both pathological and pointless. It is also a gross abuse of intellectual property law that uses the courts as tools for gaining competitive advantage. The people who should be deciding whether Apple's phones are better – more functional, reliable, easier to use – than Motorola's are consumers, not judges. By striking a blow for common sense in what had become a madhouse, Posner has set a really encouraging precedent. The only downside is that he will now probably write a book about it. And I bet it will be a bloody good read too. Some people are just too annoying for words.
So the problem with Posner is not his awfulness, but the reverse: his astonishing intelligence, energy and provocative creativity. For in addition to being a very senior judge, he is also a distinguished legal academic at the University of Chicago Law School (the Journal of Legal Studies describes him as the most cited legal scholar of the 20th century). With Gary Becker, a Nobel laureate in economics, he maintains an extraordinary blog in which the two men exchange thoughtful, essay-length arguments on an almost daily basis. He is the author of more than 40 books, many of them on legal matters, but also ranging over much wider topics: a study of public intellectuals, for example; a treatise on ageing; and works on terrorism, law and literature and democracy. And – here's the really annoying bit – none of them are crap. So to those of us who struggle to produce a book a decade, or even a column a week, Posner stands there as a permanent, reproachful reminder of our inadequacies and indolence.
What makes him such a stimulating thinker is that he has little time for conventional wisdom or political correctness. He's not enamoured of animal rights, for example, and is famous for his belief that economics provides a useful perspective for thinking about law. Thus in a recent argument with Becker about New York mayor Michael Bloomberg's proposal to ban the sale of large sugary drinks, Posner writes: "I am not particularly interested in saving the obese from themselves. I am concerned about the negative externalities of obesity‚ the costs that the obese impose on others. Obesity kills, but slowly, and en route to dying the obese run up heavy bills that, to a great extent, others pay."
What brings Posner to mind this Sunday morning, however, is not his views on obesity but on intellectual property. You may have noticed that in the last few years the world's biggest technology companies have become lavish patrons of the legal profession. Apple, Google, Samsung, HTC, Microsoft, Oracle, HP, Amazon and others have being suing one another in courts around the globe, alleging that they are infringing one another's patents. The resulting bonanza for lawyers has long passed the point of insanity, but up to now the world's courts seem powerless to make the litigants see sense. As a result, judges find themselves allocated the role of pawns in what are effectively business negotiations between global companies.
Until now. What happened is that Posner, in an unusual move, got himself assigned to a lower court to hear a case in which Apple was suing Google (which had purchased Motorola in order to get its hands on the phone company's patent portfolio) over alleged infringement of Apple's smartphone patents. Posner listened to the lawyers and then threw out the case. But what was really dramatic was the way he eviscerated the legal submissions. At one point, for example, Apple claimed that Google was infringing one of its patents on the process of unlocking a phone by swiping the screen. "Apple's argument that a tap is a zero-length swipe," said Posner, "is silly. It's like saying that a point is a zero-length line."
Posner's formal judgment was issued on 22 June. He dismissed the case, writing in his opinion that neither side had proved any damages caused by the other party. More significantly, his ruling came "with prejudice", which means neither side can reopen the case to attempt to prove damages for a second time.
This is a landmark judgment, one of those moments when someone – in this case an eminent judge rather than a small child – points out that the emperor is indeed stark naked. Patent wrangling between technology companies has become both pathological and pointless. It is also a gross abuse of intellectual property law that uses the courts as tools for gaining competitive advantage. The people who should be deciding whether Apple's phones are better – more functional, reliable, easier to use – than Motorola's are consumers, not judges. By striking a blow for common sense in what had become a madhouse, Posner has set a really encouraging precedent. The only downside is that he will now probably write a book about it. And I bet it will be a bloody good read too. Some people are just too annoying for words.
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