In an interview this week, Judge Posner told Reuters that the tech industries high profits and volatility makes patent litigation attractive for companies looking to wound competitors. As Judge Posner stated: "It's a constant struggle for survival." "As in any jungle, the animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem." The language is that colorful. See Judge who shelved Apple trial says system out of sync
I know Judge Posner, 73, is a Harvard trained lawyer, a federal appeals court judge, quite influential, and has written many books, including one on the economics of IP law, but is he acting within his role as a judge to make such comments? If nothing else, someone turning to the courts for redress for patent infringement is characterized as a jungle animal looking to use its teeth and claws to wound the infringer.
Further, Judge Posner questions whether patents should protect software or most other industries. He claims pharmaceuticals have a better claim to IP protection, because of the enormous investment required to produce a drug. In contrast, advances in software and other industries cost much less and software companies benefit by being first to market, which would still exist if there were not software patents. Congress has not limited patents to pharmaceuticals or excluded the computer industry, but somehow being outspoken about one's personal views makes an interesting story.
We need to return to something basic a federal judge is not asked to legislate the law. I know there is considerable latitude in applying the law but if Congress has not limited patents to pharmaceuticals nor excluded computer related inventions, why should you tell us how you actually don't agree with Congress?
Plus timing of this interview is right after Judge Posner issued 38-page order
dismissing with prejudice the Apple v. Motorola
patent case. Should we question whether or not Judge Posner's anti-software patent bias was a factor in the dismissal with prejudice? I think Judge Posner's opinion is excellent, but it does raise questions on why the opinion was rather harsh in tone.
See related post: Apple v. Motorola Patent Case - Judge Posner Dismisses with Prejudice
It's a concern when you see Judge Posner's philosophy in his book, How Judges Think:
"Ivan Karamazov said if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a "government of laws not men," the "rule of law" .....) does not exist everything is permitted to judges--- so watch out! Legalism does exist, and so not everything
is permitted. But its kingdom has shrunk and greyed to the point where today it is largely limited to routine cases, and so a great deal is permitted to judges."
A great deal is permitted to judges, but a judge shouldn't be contrary to Congress. If Congress has not made such subject matter exclusions, the outspoken and sweeping statements about what industries can benefit from patents raises the concern that Judge Posner's intuition and belief rather than just evidentiary gaps in the damage case motivated the terms of the dismissal.
Copyright © 2012 Robert Moll. All rights reserved.