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Posner dismisses With Prejudice the Apple Motorola Patents Case

This article is more than 10 years old.

As everyone who didn't work directly for Apple or Motorola was hoping he would, Judge Posner has thrown out the Apple v. Motorola patents case, dismissing it with prejudice. We were reasonably certain that he would as his preliminary remarks had said he would, but the ruling just came out over this weekend.

The heart of the ruling is this:

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. He further criticized Motorola for trying to use a standards-essential patent to get an injunction against Apple.

It's also true that he found that neither side had in fact proven that they had suffered any damages. And even those that were alluded to were less than the damage that would follow from allowing injunctions against further distribution of the offending items.

However, leave the details aside and consider the importance for the marketplace as a whole. The whole issue of technical patents is a mess at present, almost certainly causing more damage by restricting innovation than it is encouraging innovation be protecting the profits from it. And do recall, that's the whole point of having a patent system in the first place.

It is not that an invention is some form of natural property which the owner has a right to exploit. Rather, it is that an invention is a public good. In the technical sense this means that it is non-excludable and non-rivalrous. Once something has been invented we cannot stop someone else making that same thing and their making that same thing does not deprive the original inventor of his copy.

However, we also recognise that public goods have a problem. Precisely because of the above it's difficult to make money out of public goods. Thus we generally assume that we'll not get enough of them. So, we invent this property right, this intellectual property (through copyright, trademarks, patents, whatever) so that inventors can make money out of exploiting their invention. This means, we think so anyway, that we thus get more inventions for us all to enjoy.

The important point here being that IP is not some natural right: it's a deliberately constructed edifice to increase invention and innovation. And there's an awful lot of people who think that this system has gone too far. Patents are now being issued on what 30 years ago would have been considered absurd bases: one click shopping, slide to unlock features. Further, these over-wide issuances are being used to restrict invention and innovation in subsequent rounds of technological development. As an example, there cannot be that many outside Apple itself who really believe that the European case against Samsung over the Galaxy Tablet is really about design patents. The general assumption is that it's about keeping a competing product off the market by any means possible. For long enough that it doesn't get a foothold in said market.

This isn't what the system was designed to do. Given that that's how it is being used though it's about time that the legal system, in the form of the courts, called a halt to it. Which is the significance of this case. It's not about the detailed merits of the particular patents at issue. It's a cracking of heads together and a statement that the patent system will not be used to smother innovation any more.

Assuming that it stands through the appeals process which is not, unfortunately, a sure thing.