U.S. Patent System is Broken, Declares Judge in Android v. Apple Cases

Daily Tech ^ | July 6, 2012 1:12 PM | Jason Mick (Blog)

[Ernest_at_the_Beach]

Veteran Judge Posner says "animals" like Apple are just exploiting the weapons an ineffectual gov't has created

"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," states Judge Richard A. Posner in a recent interview with Reuters.  

As a sitting judge on the Seventh Circuit Court of Appeals who occasionally moonlights as a judge in Chicago's U.S. District Court, Northern District of Illinois, Judge Posner has watched the devolution of America's intellectual property system over the past several decades.

I. Google v. Apple -- A Symptom of a Broken System

The most recent disheartening blow was the trial between Google Inc. (GOOG) via its subsidiary Motorola Mobility and Apple, Inc. (AAPL).  Both companies clung to a handful of software and hardware patents, and neither agreed to cooperate or license.  The "animals" were out for only one objective -- blood.

Apple has been particularly vicious in this ecosystem, suing every major Android manufacturer in dozens of courts worldwide.  But as global intellectual property systems have come to mirror the patent system of the United States due to its role as a global economic leader, Apple's most pivotal battleground has been the U.S.

Judge Posner disappointed both Google and Apple when he threw their respective lawsuits out of court.  He said that while both companies had legitimate infringement claims, that he would not tolerate their refusal to license or attempts to abuse the patent system as an anticompetitive tool.

[Ernest_at_the_Beach]

Lengthy article complete with photos of real animal predators at work....

[FlipWilson]

Congrats there Judge Posner. Now get ready for the inevitable trial when the CAFC overturns your ruling. You don’t like the patent system, tough beans. Congress and THE ONE just overhauled it and re-affirmed it. Apple and Google have every right to enforce their IP. These are not some random patent trolls. They sell products and legitimately believe the other party is infringing it’s rights.

[FlipWilson]

And let me go one further, if there is really anything that is broken it is the Judiciary. We have one that is completely out of control, a judiciary that re-writes laws from the bench or simply declares it doesn’t like certain laws and ignores them. What’s that, the law is unconstitutional!?! No problem, re-write it to make it work. What’s that, a law was st passed by congress that I (the Fed Judge) doesn’t like, just ignore it or find other means to circumvent it.

[longtermmemmory]

laws have to provide notice of what is or is not required. A law can not be so convoluted as to defy comprehension. This should not be confused with ignorance of law. This is indiciferability of the law.

It is not rewriting a law to toss out an incomprehensible law. It is not rewriting the law to declare a patent invalid.

[kingu]

Yep.. The right to tap on a phone number and have a dialer application start and call the phone number, or to tap on an e-mail address and have it go to the e-mail program. Or to use a data connection to complete a purchase.

These are the IPs that are being fought over right now. And it is patent trolling - bombard the patent office with thousands of patents, have them awarded as the patent office doesn't really care if the technology existed for more than decade before (clicking on a phone number and having it use the modem to dial was around on my C-64.., for example..), and when challenged says ‘take it to the courts.’

The biggest issue has been system patents and how they relate to software. The patent for making a purchase online - again, something I've done for more than two decades, is somehow a new intellectual property to patent and then go after others for doing it.

An example of the gross insanity of the present US patent system: http://www.google.com/patents/US6368227 - something that most every child has done on a swing. But it's now someone’s IP.

[Ernest_at_the_Beach]

Geez.....the whole thing is INSANE!

Title at the link:

***************************EXCERPT*************************************

Method of swinging on a swing

A method of swing on a swing is disclosed, in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other.

Inventor: Steven Olson
Primary Examiner: Kien T. Nguyen
Attorney: Peter Lowell Olson
Current U.S. Classification: 472/118
International Classification: A63G/900

***********************************************

 Steven Olson

› Overview
Abstract
Drawings
Description
Claims

[Ernest_at_the_Beach]

Ignore the links under the OVERVIEW....will just give you a 404.

[1rudeboy]

We have one that is completely out of control, a judiciary that re-writes laws from the bench or simply declares it doesn’t like certain laws and ignores them.

I don't think you are very familiar with Judge Posner. Let's just say he's an interesting character, and doesn't easily fit into the mold you describe above.

[Ernest_at_the_Beach]

He was in the news some time ago....don't remember just when and what it was about.

I believe it was significant and regarded computers in some way....if you can help refresh my old memory it would be appreciated.

[FlipWilson]

Quote: “Yep.. The right to tap on a phone number and have a dialer application start and call the phone number, or to tap on an e-mail address and have it go to the e-mail program. Or to use a data connection to complete a purchase.”

Ok, then how do you do it? Tell me how to make that happen. I don’t mean go read the patent and tell me, I mean act as if you had never seen anything like it before and tell me how to do it. Ok, you have done it for decades, you say. Fine, then tell me how to translate what you have done for decades to a smart phone. I imagine that ANY invention looks simple with the benefit of hindsight.

You oversimplify the patent system and, as is typical, point to the numbnuts valueless patents to prove that it is “broken.” Just because someone has a patent doesn’t mean it is a pioneering or broad patent or that it has any value. It may be narrow and cover only an improvement. At the end of the day, the owner still has to enforce it and prove infringement. But it his the owner’s investment and its cost.

As for trolling, a patent troll is usually referred to as a company that does nothing but purchase patents and enforce them. They sell no prodcuts. Neither player in this game is a troll. They are both big boys playing in a highly competitive market.

[FlipWilson]

Quote “I don’t think you are very familiar with Judge Posner. Let’s just say he’s an interesting character, and doesn’t easily fit into the mold you describe above.”

I am, actually and know his background with IP but that does not make him infallible or elligible to say, “the system is out of control and I am blowing the whistle.” That is the role of Congress and they have spoken.

[FlipWilson]

Quote: “It is not rewriting a law to toss out an incomprehensible law. It is not rewriting the law to declare a patent invalid.”

And what part of the law is incomprehensible, exactly? Can you cite me the section of Title 35 that is confusing? I realize that no statute is perfect but here, the Court took it upon itself to say, “patent rights smatent rights, you have to license.” Ok, so what if it wasn’t Intellectual Property but real property? Would it be ok for the court to say, screw your property, you have to lease it out?

[FlipWilson]

Great, some dork got a silly patent. We call those paper patents because it is about all they are worth. The issue isn’t obtaining crap from the PTO but what is done with it. Are kids being sued in playgrounds to stop swinging? No, becasue this is a patent that could not be enforced.

[Marine_Uncle]

One could wonder where these type cases will lead to in the future.

RE: "In the end Judge Posner rebuked both companies for this approach, dismissing the case. The dismissal was a blow to Google's defense efforts, but was a far bigger blow to Apple's offensive efforts."

[Ernest_at_the_Beach]

I just posted this:

Galaxy Tab doesn't copy Apple designs, U.K. court rules

[kingu]

Actually, I've not oversimplified anything. Clicking an e-mail address to send an e-mail using another application has existed since the FIDONet days. Only the Patent Office decided to award a patent for doing it on a cell phone, and it's off to the races to BAN other products that might have that ability.

Ban. That has been Apple's goal - no attempts to license, no negotiations, it's pure ‘we don't want your competition anymore, so go away.’ Explain just how this patent trolling - and make no mistake, it is trolling - they want to win, ban the phones and tablets, and THEN maybe make a licensing deal to PERMIT the infringing device in the United States.

All over a detail which has been part of the computer experience for more than two decades. Oh, and no, it's not satisfactory to Apple to have the specific abilities removed - as some user could easily decide to put that ability back in.

In reaction, Google used the sledgehammer of the 3G patent - another troll - Apple uses a Chinese manufacturer who has never licensed the ability to use a 3G data connection to transfer data from a mobile device to the ‘internet’ - boy, the person in the patent office who awarded that one must have felt good that day. Google’s solution, so long as Apple is trolling vendors who use Android operating system, is to ban every Apple product that uses 3G data chips that aren't licensed.

Do I consider anyone to be the good guys here? No. Both should have been tossed out of court the second they filed it, as NEITHER were protecting an intellectual property, but simply using it as an excuse to impact the marketplace. Neither case should have been filed in the first place.

Using a data network to transfer data isn't intellectual property - that's like saying that you can patent drinking water coming out of a kitchen sink. And then patent water for washing. And then patent water for ice cubes. The whole point is to deliver water - just as the whole point of a 3G data network is to deliver and receive data.

And I used the swing example because it is endemic of the entire patent system at this point - There's a patent for the OK button on a dialog. There's a patent for buying something online. There's a patent for using a credit card to pay for something you purchased online...

And yes, there is a patent for making a reply on an online forum to another user's message, and another one for directing it to a specific person and notifying them of the response. Thankfully, BOTH of those patents were gained and then specifically put into the public domain to keep the trolls from glomming onto them, else you would have seen them used against FreeRepublic multiple times by now.

[CodeToad]

“Tell me how to make that happen.”

Piece of cake and thousands of programmers do such things every single day. Responding to an event that says a user touched a button and then have that event call a function is done all the time. How the Hell did that even get a patent in the first place? That’s like patenting computer programmming itself.

[CodeToad]

“Tell me how to make that happen.”

private void lnkPhoneNumber_Click(object sender, EventArgs e)
{
PhoneDialer Dialer = new PhoneDialer();
Dialer.Dial(lnkPhoneNumber.Text);
}

See? Piece of cake. Any idiot could do it.

[CodeToad]

“No, becasue this is a patent that could not be enforced”

Sure it could, just as any other patent can. According to you, the poor sap that got the patent is being cheated by all those kids out there with swings. That is just as silly as saying clicking a link that dials a phone is worthy of a patent.