Judge Posner is indeed a brilliant and highly-respected jurist and his views on our problematic patent system will undoubtedly resonate and help the cause of reform. In his courtroom role as such, though, he can have only limited impact on the broader patent debate.

The judge entered a tentative ruling saying that he was inclined to dismiss the entire case on the merits with prejudice (meaning, to kill all the claims in the case definitively so they could not be brought again by either party) on grounds that (a) neither party could prove actual damages on their claims, and (b) no good ground existed for the grant of an injunction.

These conclusions are well supported on technical grounds by existing law. A damage case can be tossed, once and for all, if a party is conclusively shown not to be able to prove damages, as happened here. And a judge can decline to impose an injunction where the costs of doing so would be far out of proportion to the benefit it gives to the harmed party, where the wrongdoing party is not gaining great benefit from the wrong committed, and where the public would be more damaged than helped by such a remedy.

What this really amounts to is a victory for common sense. Where patents involve essentially trivial rights (as often is the case with software patents especially), judges do not like to be used as tools to be manipulated in a broader commercial fight between litigants. In essence, this judge, looking at these facts, said "OK, kids, time to stop squabbling in the sandbox and go home." The lesson: pick your fights carefully and don't push claims that are essentially trivial.

Judges, good as they are, can only do so much in a system that is defined by constitutional authorization, congressional implementation, and a specialized court set up by Congress that has become cozy with the patent bar. That said, Judge Posner can hardly be accused of being a judge who doesn't respect property rights or IP rights generally and his voice will carry far more impact than most. It will be necessary to have respected voices in the legal community say, "enough is enough" many times over before Congress will listen. This act may not be enough but it is a great push in the right direction.

This opinion is both extraordinary and extremely significant. Richard Posner is probably the most prolific legal intellectual not on the supreme court. He co-writes, along with Gary Becker (Nobel Prize winner in Economics) this excellent blog http://www.becker-posner-blog.com/

Posner is the author of the 4th most cited Law Review article in the field of intellectual property law[1]. Most telling of all is this statistic: "As of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else" [2]. He retains that position in 2012.

[1] - William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325 (1989). [2] Fred Schapiro & Michelle Pearse, The Most Cited Law Review Articles of All Time, Michigan Law Review 2012.

What a wonderful surprise. I'd forgotten about the judicial branch, and now they appear like the cavalry to sort out this mess.

Wouldn't it be great if they went after the patent trolls next?

Nice quote from a different judge: "The court is well aware that it is being played as a pawn in a global industry-wide business negotiation."

Wow, I think the more interesting part of this is his slamming of the current situation in America:

"The institutional structure of the United States is under stress. We might be in dangerous economic straits if the dollar were not the principal international reserve currency and the eurozone in deep fiscal trouble. We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals."

Not mincing words indeed.

The linked blog post from Posner is excellent:

http://www.becker-posner-blog.com/2012/06/capitalismposner.h...

What does it mean that Posner was assigned to a lower court? Should we assume that he requested a chance to rule on this matter? Or is the entire judicial branch disgusted with the patent system too, and they asked for a pinch-hitter?

> [re a slide-to-unlock patent] Apple’s .. argument is that “a tap is a zero-length swipe.” That’s silly. It’s like saying that a point is a zero-length line.

But a point is a zero-length line.

I notice that NeXT is listed as a co-plaintif - does anyone know why? Weren't they completely acquired by Apple?

Posner is so famous and respected and such a polymath that his absence from the Supreme Court is conspicuous. Does anyone know why he's never been nominated?

I'm glad Posner and a few other justices seem to have an interest in discrediting frivolous patent cases but can they do anything other than point a dirty finger at corporations for abusing the patent system and dismiss their cases with prejudice? Posner can't shift around his appointments indefinitely.

It's obvious that most HNers feel the patent system won't change any time soon or they wouldn't be filling this thread with a discussion on the definition of a line segment.

Edit: I'm not saying he should do more. I was asking if he could do more from his position. I recognize that he's bringing needed attention to the subject and setting an example that will probably be followed by others in the judiciary.

He called it right, as it is.

I can't read the embedded Scribd document (scribd is blocked here)... what term does Motorola claim has a "plain and ordinary meaning"?

Outside of his nigh-endless legal accomplishments, Posner is also allegedly the basis for the character of Mr. Burns on the Simpsons.

His blog (http://www.becker-posner-blog.com/) is well worth a read.

If you're an economic-utilitarian you'll love it, otherwise you'll probably think he's a monster, albeit a very rational one.

It didn't seem to make much difference when Posner endorsed Keynes as "the best guide we have to the [recent economic] crisis"; I don't expect his comments will make much difference to discussion of the patent system. In both cases, you have too many actors invested in a different view.

Ah, Judge Posner. Years ago I was the Creative Commoner for a while, Lawrence Lessig sent me a congratulatory email in which he said that I was "another Judge Posner" -- it took me a good bit of research to get the humor.

Now I smile whenever I see Judge Posner's name.

undefined

Judge sounds biased against the patent system. Would be interesting to see an appeal based on this.

undefined

I think I like this guy...

U.S. Circuit Judge Richard Posner is my new hero.

I think you’re mis-interpreting his blogpost based on your own biases. The “dysfunctional patent system” is probably a comment on the organizational problems of the USPTO (i.e. it being understaffed and overloaded) rather than any inherent flaws in the patent system itself (e.g. what many think of the on-going patent lawsuit war). From what I’ve seen, judges and jurists tend to accept that the patent system is practically sound, and any complaints they make about it tend to be about the bureaucracy and inefficiencies of the USPTO. Especially since this judge is a very strong supporter of capitalism (in the linked blog itself), I’d guess that he’s also a strong supporter of intellectual property rights.

ahem, trial was not piked despite F Mueller claims to the contrary, date of trial is Nov 2012.

MS better ask for your money back Mueller is doing piss poor job at spreading FUD

> Motorola’s contention that the term has a “plain and ordinary meaning” is ridiculous; Motorola seems to have forgotten that this is a jury trial.

Look who's talking.

What do you know, a judge from an appeals court that never hears patent cases doesn't know anything about how the patent system works.

Why we let circuit judges sit by designation on cases that are literally outside their jurisdiction escapes me.

Posner is a drama queen, as usual. "I don't like what you're doing, so I'm going to ignore law and binding precedent to come to a decision that feels right and will get me some more publicity."

Puke.