Judge Richard Posner, who recently threw out an entire patent lawsuit involving Apple and Motorola, has been nothing if not outspoken on the wildly busy US patent litigation system. In an interview published today by Reuters, he calls patent litigants animals struggling for survival and suggests that some industries—perhaps including software—shouldn't have patent protection at all.
"It's a constant struggle for survival," Posner told Reuters in his chambers at the US Court of Appeals in Chicago. "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."
While Posner said the pharmaceutical industry has a decent claim to patents because of the huge investment it takes to create drugs, he added that advances in software and other industries are less costly. The benefit companies get from being first to market would exist even if software patents didn't. Smartphones are particularly problematic because they have thousands of patented components and features, he said.
"It's not clear that we really need patents in most industries," he said. "You just have this proliferation of patents. It's a problem."
Although Posner serves on the Court of Appeals, he volunteered to oversee the Apple/Motorola case in the lower US District Court. With Apple and Motorola seeking injunctions against each other, he canceled a jury trial and then threw the case out entirely after criticizing both companies for trying to block sales of competing products.
Posner is unusually outspoken among judges. His latest interview gives some insight into why technology companies don't relish the thought of appearing in front of him in patent cases—unless they're the ones being sued.
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