Richard Posner, a prolific jurist who sits on the 7th U.S. Circuit Court of Appeals in Chicago, told Reuters this week that the technology industry's high profits and volatility made patent litigation attractive for companies looking to wound competitors.
"It's a constant struggle for survival," he said in his courthouse chambers, which have a sparkling view of Monroe Harbor on Lake Michigan. "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."
Posner, 73, was appointed as a federal appeals court judge by President Ronald Reagan in 1981 and has written dozens of books, including one about economics and intellectual property law.
Posner, who teaches at the University of Chicago, effectively ended Apple's lawsuit against Google Inc's (GOOG.O) Motorola Mobility unit last month. He canceled a closely anticipated trial between the two and rejected the iPhone maker's request for an injunction barring the sale of Motorola products using Apple's patented technology.
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"It's not clear that we really need patents in most industries," he said.
Also, devices like smartphones have thousands of component features, and they all receive legal protection.
"You just have this proliferation of patents," Posner said. "It's a problem."
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The Apple/Motorola case did not land in front of Posner by accident. He volunteered to oversee it.
Federal appellate judges occasionally offer to preside over district court cases. Posner had alerted the district judges of his interest in patents, so after part of the smartphone battle landed in Wisconsin federal court, the judge there transferred the case to him.
When Posner began working on the smartphone case, he told the litigants he was "really neutral" because he used a court-issued BlackBerry made by Research In Motion Ltd (cop ed: LOL)(RIM.TO). He soon accepted an upgrade to an iPhone, but only uses it to check email and call his wife, he said.
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In canceling the trial, Posner said an injunction barring the sale of Motorola phones would harm consumers. He also rejected the idea of trying to ban an entire phone based on patents that cover individual features like the smooth operation of streaming video.
Apple's patent, Posner wrote in his June 22 order, "is not a claim to a monopoly of streaming video!"
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When it comes to the smartphone litigation wars, Posner said tech companies should not be blamed for jumping into court since they are merely taking the opportunities that the legal system offers.
Given the large cash reserves in Silicon Valley, high legal fees are not a deterrent. Apple, for instance, had $110 billion in cash and securities as of March 31.
"It's a small expense for them," Posner said.
Posner said he had been looking forward to presiding over a trial between Motorola and Apple, but had no other choice than to toss the case.
"I didn't think I could have a trial just for fun," he said.
