Judge throws out entire Apple/Motorola case

http://arstechnica.com/tech-policy/2012/06/in-bid-for-patent-sanity-judge-throws-out-entire-applemotorola-case/

by rakingleaves • 14 years ago

151 50 14 years ago

Previous discussion: http://news.ycombinator.com/item?id=4085502

spodek• 14 years ago

As a technology founder who later got an MBA, I've found a divide among the technology and business camps on patents and trademarks.

Tech people I know generally agree that patents and copyright stifle innovation. They may once have helped, but no longer.

Business people I know believe patents help create entrepreneurship. They think about it from a founder's perspective (they haven't founded companies themselves) and think patents would help that person establish a foothold against incumbents. They ask, "Without patent protection, how can someone get paid for their creation?"

As I see it, the business people don't have relevant experience. They're talking about a myth that doesn't exist anymore if it ever did. People who innovate and create have relevant experience and know how patents and copyright are used in practice.

At least this judge understands too. I hope his acts catch on.

The more relevant question seems "Without patent protection, how can patent lawyers get paid?" because patent lawyers is what the system creates, at the expense of technological innovation, as I see it anyway.

tzs• 14 years ago

> Tech people I know generally agree that patents and copyright stifle innovation.

How do copyrights stifle innovation?

dantheman• 14 years ago

Nothing goes into the public domain anymore.

jacobolus• 14 years ago

http://www.theatlantic.com/technology/archive/2012/03/the-mi...

tsotha2• 14 years ago

I just heard a great example on the radio the other day. The piece O Fortuna was written by Carl Orff in 1936. In 1991, fifty five years later Orff's family sued to keep the Belgian group Apotheosis from releasing a heavily sampled version.

Now I don't know exactly how much the Apotheosis version adds to the body of culture. Most new music is crap, after all. But it does represent artistic innovation, and it was definitely stifled.

cturner• 14 years ago

Copyright hampers rapid repackaging of ideas, which is a major vector for innovation. Wagner's Ring Cycle plot was a refactor - a repackaging of existing stories and ideas. Much of Handel's _Israel in Egypt_ (and many other works) is a repackaging of earlier tunes. Bach's Goldberg variations remixes then-popular tunes.

Consider cross-pollination. Nintendo wanted incidental background music for tetris. They found some tunes in the public domain, and wrote some themselves. Only possible when there's a public domain. The game isn't about the music, but the fact that they could mix good music in made it better.

Peaker• 14 years ago

They encourage the closed-source model.

Closed-software cannot be used as a basis for innovation and improvement by people who could innovate and improve it, if given the chance.

enjo• 14 years ago

I'm a tech person and I don't agree that "patents and copyright stifle innovation".

I believe that patents, as presently construed, do. It's not the concept, but the process that's the issue. Terms are too long, they have no requirement of actually bringing a patented idea to market, and they are transferable. It's the last one that is a huge problem to me.

We've turned patents into a tradable commodity that often have a lot more value as weapons than as mechanisms to defend an idea in the marketplace. The insane length of the protection only serves to make them more dangerous.

I support patent reform that addresses these issues, not the abolition of patents entirely.

fauigerzigerk3• 14 years ago

I think those who argue for patents have to show how exactly patents promote entrepreneurship and innovation.

What patents do is to boost the value of ideas relative to execution. They are supposed to help individuals with great ideas but without access to the resources required to execute on them.

For patents to make sense, there has to be a very large gap between the capital required to work on the idea itself and the capital required to bring it to market. Something like building a factory or conducting 10 years worth of clinical studies. Something that enables a big encumbant to copy an idea and win every time against the original innovator.

I don't think that is generally the case in the software space. It is certainly more true for enterprise stuff that you need sales people for and that's why MBA types may think more favorably about software patents. But even for that kind of software, the gap isn't nearly as large as for inventing a new type of nuclear reactor or jet engine or cancer drug.

Another problem with patents is that they are supposed to make people publish their research instead of keeping it secret, but many small companies and individuals cannot afford to go through the patenting process.

I can say for myself that I do not publish my research nor do I open source it. Secrecy is the cheapest option to have a head start with exactly the kind of ideas that might really benefit from patents. Ideas that you don't think someone else could have tomorrow by accident or by gradually expanding on existing ideas.

rayiner3• 14 years ago

Patents as a tradable commodity enable valuable specialization. If you're an inventor who specializes in, say, LCD technology, you can come up with a new technology, patent it, and sell it to companies that use LCD screens. If patents weren't transferable, you'd have to go into the business of making cell phones, laptops, etc, which isn't your speciality.

bandushrew• 14 years ago

of course they stifle innovation. that is the intent of those laws, to stop people from innovating on an idea or work that someone else had.

the only interesting question is whether they stifle it in a useful way, or a harmful way.

antiterra5• 14 years ago

Tech people I know generally agree that patents and copyright stifle innovation.

Do you not know any "tech people" who are fond of the GPL? It relies on copyright to function. The same goes for enforcing the attribution requirement with Creative Commons.

There are a lot of things I would like to see changed in both copyright and patent law. I am a proponent of a "thin copyright" similar to that proposed by Siva Vaidyanathan, and I believe that software patents do not fit into the current system at all. I think eliminating the legal recognition of intellectual property entirely, however, would be throwing the baby out with the bathwater.

bkor• 14 years ago

GPL does not strictly require copyright.

I'd prefer if for software, the only possibility was something similar to GPL v3+. Meaning: instead of copyright as it is known know, the law contains the terms of the GPL. So for any software you must be able to request the source code in a usable form.

Currently, copyright allows software to be released in a restricting (binary) form. As a result, the client always has to rely on the software vendor.

I rather have more competition in that. When software is created, I think there should still be a few possibilities. I think it is good if a company can still charge for software per copy (have to make money; support isn't everything). So for each software it should be possible to restricts its distribution (like copyright atm). However, a client should be able to hire another company and make their own modifications to that software (in some cases you just have to keep the changes to yourself).

At the moment any software basically results in a monopoly. Especially within bigger companies (loads of software which source might not be available anymore, etc).

GPL is often seen as communism. But IMO the current situation doesn't allow for much competition. Law should be always adjusted to ensure (healthy) competition can take place.

To be clear: I am not advocating that every software company should work like the current free software/open source software companies. Read by post again if you thought that.

tikhonj• 14 years ago

The fact that the GPL uses copyright is just an implementation detail.

In actual practice, it does the opposite of normal copyright. Copyright is usually used to restrict access to some work. A public domain work can be accessed to anyone, but, as it evolves, future contributors can restrict access to it. A GPL work remains accessible to everyone in perpetuity, not just from a legal standpoint but also from a practical standpoint (no need to reverse engineer or disassemble). Not only are you allowed to use the work, but also nobody is allowed to stop you from using it in any form. It really is on the opposite side of the spectrum from normal copyright (we can imagine public domain to be the midpoint).

In the FSF's perfect world, the GPL would not be necessary. Instead, you would be able to access and modify all your software without restriction. The GPL is just a clever way of creating and enforcing such a world without changing existing legislature.

Also, "intellectual property" is an unfortunate and rather loaded term. For one, it covers several distinct concepts like copyright, patents and trademarks which all behave differently and have different ramifications. Secondly, it presents a false parallel to real property. Whatever you think of Stallman's ideology, you have to admit he is a good writer (certainly infinitely better than I am) and very clear; here is his case against the term "intellectual property": http://www.gnu.org/philosophy/not-ipr.html

A final note: while the general software community is divided on patents and copyright, I don't think most people are against trademark law. If anything, trademark law is about fraud--you're not allowed to lie to customers about being affiliated with a known, existing brand. I suspect most people arguing for copyright and patent reform are fundamentally fine with trademark law as is, or want minor changes to it at most.

rayiner3• 14 years ago

Both the tech founders I know strongly believe in patents and depend on them to protect their inventions.

I think the view you're talking about is really only prevalent in internet startups and the like.

angli2• 14 years ago

As welcome as this news may be from technical and common sense standpoints, I'm not sure if it's a good thing from a legal one. This whole affair seems to me (and I may be wrong) like one judge deciding that the law is bad, and thus that the suits are meritless. While this seems great as long as you agree with the judge's view, I think it opens a pandora's box.

Imagine if a right-wing Christian judge tosses out anti-creationism lawsuits, or pro-RIAA judges toss out anti-RIAA lawsuits. Even worse, imagine a judge indirectly on the RIAA payroll! Granted, these are all a long ways away from this case, but I believe that applauding this judge's actions is the wrong reaction.

ajross3• 14 years ago

I don't follow. If a judge tosses out a bad suit, it is a good thing. If they toss out a good suit, that's bad. We want judges to do the right thing.

Your view is what: that we don't want judges doing the right thing because the legal systems is somehow karmicly bound to follow it with a bad decision in some other case?

To hell with that. Posner is a hero right now. I say we celebrate.

wtallis• 14 years ago

We want judges to uphold the law, not rewrite it. We have legislators for doing that, and it is very much by design that those jobs are separate.

If there are bad laws on the books that are only sporadically enforced, then people are being denied the very fundamental right of equal protection. That's never good in the long run.

philwelch2• 14 years ago

The argument is more that unchecked power is a dangerous thing because it's a double edged sword, and that we shouldn't get happy that the unchecked power was exercised in our favor this time.

rayiner3• 14 years ago

The argument is that it's Congress's job to define patent law, not the judiciary's.

wmf• 14 years ago

I don't think Posner is disagreeing with the law, although he may be interpreting it in a somewhat unusual way. He gave detailed reasons why he threw out the case, mostly (AIUI) that neither side had adequately estimated the financial damage caused by the other company's infringement and that asking for a competitor's product to be outright banned was too harsh a penalty. This does seem to be in contrast with the Oracle-Google lawsuit, where there was a full trial to determine infringement and then afterwards they worried about the damages.

fpgeek• 14 years ago

In Oracle-Google, there was plenty of pre-trial work on damages. IIRC, Oracle had to do three rounds of damages reports before the trial (the second and third because the previous reports were not satisfactory). Post-trial they would have determined what the damages actually were, but, in order to get their trial, Oracle did have to make a showing that there were damages worth trying.

Oracle had it easier because there were willing to license the patents and copyrights at issue (and Sun had even talked to Google about this). That made the lost licensing revenue a helpful data point with respect to damages, but with or without that there was a hurdle Oracle dealt with that Apple/Motorola didn't (based on Judge Posner's ruling).

antiterra5• 14 years ago

Are you basing your determination from reading Judge Posner's opinion or the tech writer's summary at arstechnica?

angli2• 14 years ago

Honestly, the ars summary. Make of that what you will.

vineet2• 14 years ago

Now that this has happened, I am wondering what the direct implications of this are to the industry (especially the 'dismissed with prejudice' part).

edit: added the "to the industry" part.

hinathan• 14 years ago

It the plaintiff can't file suit again with the same patents against the same respondent.

vineet2• 14 years ago

I wasn't clear (just updated the previous comment).

What I am wondering is - does this lead to the entire patent industry coming crumbling down? I am expecting that part might not be likely, but I am trying to figure out what part is to be expected.

jeffnappi• 14 years ago

s/Motorola/Google/g

spacestation• 14 years ago

"Posner complained that Apple's attempt to get an injunction restricting the sale of Motorola phones would have "catastrophic effects" on the mobile device market and consumers."

- the moral of the story is steal and get the stolen goods into as many 3rd party hands as possible, so that by taking it away from would cause chaos and outrage. "Don't be evil"? That's criminal and evil at perfection.

hatcravat• 14 years ago

I'm not sure if you're being a troll, but I'll bite anyway.

This is about consumer choice: Motorola clearly does not have any device which effectively competes with the iPhone. Further, allowing Motorola to pick and choose who it competes against (remember, they are arguing that, as the holder of a patent required to implement a standards-compliant device, they get to play gatekeeper for the mobile phone market) is plainly against the interests of the consumer.

antiterra5• 14 years ago

Motorola's request for injunctive relief is a different animal than the Apple request at issue in spacestation's comment. The denial of Motorola's request involves their own claim/classification of their patent as necessary for all cell phones and therefore subject to a fairly licensed classification (FRAND.) Posner seems pretty amenable to a mechanical license in that case, but Motorola failed to provide evidence of a fair price for such a mechanism. Further, he suggests Apple has invented around this patent anyway and it isn't actually 'necessary.'

antiterra5• 14 years ago

No, the argument against injunctive relief was far more complicated and complete than that quote implies. Apple didn't seek relief for loss of royalties, which would give them tangible benefits for injunctive relief. Posner argues that Apple's pursuit of injunctive relief is an attempt at a punitive action in disguise. An "invent around" is trivial in a specific case, and the logistics of forcing of such an invent around would give Apple no benefit other than the punishing of Motorola is the issue.

It might not hurt to give scanning the opinion a try. Call me crazy, but I enjoy reading these things.

Judge throws out entire Apple/Motorola case

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