Posner Pozzes Apple

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Bob Dylan Roof
Posner deals a blow to the patent rent-seeking juggernaut. If this trend continues, Apple may have to actually become innovative again.
Apple's "rip-off" claims are right. Judge Posner's decision doesn't prove that there was no "rip-off". He just cannot see that the patents that were shown to him, and the related infringement allegations and damages theories, substantiated a "rip-off" of the illegal kind. At the most he felt that Apple might have been entitled to a limited amount of money, if it had done a better job of proving economic harm.​

This is a useful paragraph because it separates the legal issues at stake from the palpable sense of injustice Steve Jobs felt when he threatened to "go thermonuclear" and told his biographer: "Our lawsuit is saying, 'Google you f***ing ripped off the iPhone, wholesale ripped us off."


What Judge Posner ruling does, more clearly than any that came before it, is delineate the limitations of those laws as they apply to this case. Among his key findings:
  • Apple claimed that Motorola's Android phones "as a whole" ripped off the iPhone. But that's not against the law. As Posner wrote: "Motorola's desire to sell products that compete with the iPhone is a separate harm--and a perfectly legal one--from any harm caused by patent infringement."
  • The four patents that Apple claimed Motorola infringed were, for the most part, quite narrow and could be circumvented. The judge himself suggested workarounds for three of them. (The one that remains could be a problem for the makers of Google ( GOOG ) Android phones in future lawsuits.)
  • Even if Apple could prove infringement, its lawyers didn't do their economic homework. Perhaps they were too focused -- like Jobs -- on the fact of the rip off. Perhaps Apple is just too damned profitable. For whatever reason, the company never go around to telling the judge how much Motorola's alleged infringement of its patents cost it in past or future iPhone sales.
In other writings, Judge Posner has made it clear that he would like to see less litigation from a patent system he describes as "dysfunctional." But as FOSS Patents' Mueller points out, Posner's ruling is "100% certain" to be appealed. Moreover, without a monetary settlement to establish the cost of patent infringement -- and thus the best reason not to infringe in the first place -- there is likely to be more litigation in the future, not less.