In Apple-Google case, court blows off famous judge’s plea for patent sanity

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In 2012, the renowned 7th Circuit judge and intellectual property scholar Richard Posner poured a bucket of cold water on the absurd patent lawsuits engulfing the mobile phone industry. In a remarkable decision, Posner told Apple and Google-owned Motorola to pack up their lawyers and their damages expert and go home — there was no point to have a trial, he said, because neither side could show they had been harmed.

Richard Posner

It was a worth a try. Alas, on Friday, the U.S. Court of Appeals for the Federal Circuit reversed nearly every element of Posner’s decision and gave the green light to Apple and Google to shovel more money at lawyers and experts, and start all over again.

The decision, embedded below, is a dry 99-page treatise about claim construction, presumptions and other arcana of the patent system. It faults Posner for wrongly interpreting patent claims (over “tap” and “swipe” gestures) and the rules of expert evidence, while also weighing in on when injunctions are available in the case of so-called FRAND patents.

These findings are insignificant, however, compared to what the appeals court judges did not do. Even as they declared Posner to be wrong seven ways from Sunday, they failed to acknowledge Posner’s over-arching point when he threw out the original case in 2012: that lawsuits over silly smartphone patents are inefficient and “contrary to the public interest.”

Instead of addressing Posner’s challenge directly, the appeals court instead dives deep into legal pedantry and turf-guarding: it quibbles at length over recondite rules, but never addresses the larger questions of efficiency and incentives that hat the patent system is supposed to regulate.

The Federal Circuit’s choice to blow off Judge Posner’s Apple-Google ruling is a shame, and especially so because the case is a rare instance when an outside appeals court judge has weighed in on patent law. (That’s because the Federal Circuit has exclusive jurisdiction over patent appeals but, in this case, Posner decided to sit as a lower court judge to hear the case.)

Unfortunately, the Federal Circuit appears uninterested in enriching its own opinions with the likes of Posner, a noted scholar in both intellectual property, and law and economics. Earlier this year, the court likewise rebuffed another famous judge, who is also well-versed in IP issues — it reversed Judge Alex Kozinski of the 9th Circuit, declaring that he had failed to understand patents directed at Google’s StreetView.

Ultimately, the Federal Circuit’s reluctance to hear from other judges can only add to its reputation as a “rogue” court intent on using a pro-patent bias to protect its own institutional prestige.

If there’s a silver-lining in any of this, it’s that the Supreme Court appears just as fed-up as Posner with the run-amok patent system. In recent years, the top court has issued a series of unanimous rulings overturning the Federal Circuit, and is poised to smack it down again in the field of software patents.

The Supreme Court may ultimately provide some relief to the patent plague. In the meantime, Congress should consider stepping in to strip the Federal Circuit’s power over patents and bring relief to the consumers who ultimately pay for nonsense patent lawsuits in the form of higher product prices.

Here’s the ruling:

Fed Circuit Re Posner

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