back to article Judge: Patent litigants behave like animals

The outspoken judge who threw out Apple's patent suit against Motorola Mobility has called into question the entire US patent system, comparing patent litigants to violent beasts. Judge Richard Posner at Harvard University in 2009 Posner: "All their teeth and claws" "It's a constant struggle for survival," Judge Richard …

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  1. theModge
    Thumb Up

    Can I be the first to congratulate him?

    No, Probably not, but he is none the less right on the money.

    1. LarsG
      Thumb Up

      Wow

      This man is truly enlightened.

      1. Zombie Womble

        Re: Wow

        "This man is truly enlightened."

        So that's the end of him sitting in anymore copyright cases then.

        1. Charles 9

          Re: Wow

          Sounds perfectly okay with him since his interest is in patents, which are covered by another bureau altogether. As for keeping him out of patent suits, that may be tricky if at least one of the parties involved wants him to preside. They'd just have to find a way to file the suit in his district.

        2. Anonymous Coward
          Anonymous Coward

          Re: Wow

          Copyright - it's patents no copyright.

          1. This post has been deleted by its author

    2. Anonymous Coward
      Anonymous Coward

      I understand that he is in the process of having his mental state analysed to see if he has had a mental breakdown!

      1. Lars Silver badge
        Pint

        Wisconsin analysed

        I suppose his mental state would be Wisconsin then.

      2. sniperpaddy
        Stop

        mental state analysed ?

        <<mental state analysed ?>>

        That would be slander unless you can present corroborating evidence.

        Would you care to file under your name instead of AC.

        Oh wait, El reg can pull your IP/registration from the logs anyway.

    3. James Micallef Silver badge

      Re: Can I be the first to congratulate him?

      Halleluljah! Enlightenment, scales dropped from eyes and all that.

      Software patents are bad, and software people have always known this, it's the bloody lawyers who wanted them in the first place and caused the whole mess

      1. Lars Silver badge

        Re: Can I be the first to congratulate him?

        I would add the patent office to the list.

  2. Paul E

    Typical, you wait ages for a sensible american judge and then 2 come along at almost the same time.

    1. Eddy Ito

      Unfortunate

      The real tragedy is that it isn't be the other way around and given the court packing mantra instilled in every President by FDR it isn't likely to change any time soon.

  3. Graham Marsden
    Thumb Up

    At last...

    ...a Judge who gets it!

    This patent nonsense (pun intended!) is doing more to restrict development than anything else and the only people benefitting from it are the lawyers.

  4. Anonymous Coward
    Anonymous Coward

    Nice one judge

    Defending the mega-billion big pharma industry patent monopoly that actually kills people around the world by not giving people access to life saving medicine.

    Pharma harder to develop than software? Both take years, both get a lot outsourced (e.g. clinical trials in India)

    Actually most drug discovery is done in software these days.

    1. Naughtyhorse

      Re: Nice one judge

      im going to have to call bollocks on that

      developing interferon against developing a fart app. not really the same thing at all.

      not that im defending pharma, but the comparison is bogus most

      1. Anonymous Coward
        Anonymous Coward

        Re: Nice one judge

        and your fart app comparison is not bogus at all...

        let's try again, are you saying a drug is harder to develop than e.g. the linux kernel?

        not that I'm suggesting patenting Linux, it's just a reference since we all know how much time and development effort went into it.

        1. Naughtyhorse

          let's try again, are you saying a drug is harder to develop than e.g. the linux kernel?

          hell yes.

          though to be fair the standards for medicine are a tad higher, to the best of my knowledge paracetamol has never, ever, not even once in all the billions and billions of executions of its code suffered a BSOD.

          pharma occasionally fucks up, and it's big news & big costs (and years of the most unprincipled kinds of legal arguments) when it does

          software fucks up all the time everywhere - cos the job is done universally badly (unless you are suggesting the construction and processes of a typical computer are more complex than those of the human body) and the reason for that is the rush to market, pharma, thank <insert name of deity of your choice> cant do that, and therefore deserves a little protection.

          and compared to understanding the causes and developing therapies to treat, say, Alzheimers i say yes! the linux kernel sounds like a piece of piss. because as a frame of reference, nobody has managed to do that yet, and that is in spite of considerably more effort being expended by considerably more people for considerably longer than on said kernel.

          like i said a fart app

    2. Anonymous Coward
      Anonymous Coward

      Re: Nice one judge

      Your first paragraph had a glimmer of hope, but after that I think bollocks was a good call.

      Regarding your first comment, it is very sad that many do indeed die due to highly overpriced medicine being unaffordable, and it is deplorable when medicine is blatantly overpriced to bloat profits – only made possible by there being no alternative.

      However, it is a necessity of pharmaceutical companies to use patents to protect their work – or rather revenue from it - because of the large amount of upfront investment (time and money) required to research a drug, often with no results. If they didn’t have patents, then new drugs could then be reproduced at next to no cost (*cough* India *cough*) and the company would be unable to recover its costs/investment. If that happened, then eventually nobody would be able to afford the upfront investment to research new medicine in the first place, and that would lead to many more deaths. So in that sense, and in this context, they are the lesser evil.

      Life is unfair sometimes, but often unfair for a greater reason.

      1. Anonymous Coward
        Anonymous Coward

        Re: Nice one judge

        <<<

        Your first paragraph had a glimmer of hope, but after that I think bollocks was a good call.

        <<< good one, almost gave me an hard on, or maybe it's the chinese viagra

        now seriously hear that? that's the tiniest of violins playing the saddest song in the world to big pharma.

        do you even know what you're talking about? most clinical research if paid for by research councils, they are the ones bearing the risk. pharma then picks the best ideas and takes off with them. you should see their reps crawling through conferences like cockroaches.

        then they get patents.. and block anyone from doing them. FRAND? that's for the sparkies, we don't do friends. people dying? that's ok we killed plenty during the trials too, guess who got the placebos...

        have you seen the price of cancer medicine? it's criminal, they should all be arrested. not have this judge defending their patents.

        1. Eddy Ito

          Re: Nice one judge

          Let's not forget the FDA who makes the generic manufacturers jump through the same qualifying hoops to get their drug copies approved even though the process, ingredients and formula have long been known, haven't changed for ages, only long expired patents and are identical to the other half dozen manufacturers. Yet the bar remains high so the original company can keep their margins up. Meanwhile the big companies go on to develop a new drug that only treats a soon to be found incurable chronic condition because let's face it find a cure and sell a dose for a day or find a chronic condition and milk the customer for a lifetime.

          1. Anonymous Dutch Coward
            Unhappy

            FDA & generic manufacturers

            That's just sad (the FDA, that is).

            Falsifying data/witholding adverse data as GlaxoSmithKline was fined for is also sad and IMO criminal. I'd send people to jail for this if I could...

    3. Arctic fox
      Thumb Down

      Re: "Nice one judge." That I am afraid is utter nonsense.

      As a synthetic organic chemist working in drug design and discovery in a small R & D company it is my professional observation that getting one drug to market (through the basic research, synthesis, mass testing of analogues in vitro, testing in animal models, pre-clinical trials, two to three stages of clinical trials and finally the various regulatory hurdles) takes ten to twenty years and upwards of two billion dollars. I have no time for the behaviour we have sometimes seen from Big Pharma but to say that drug development does not need some form of patent protection is ridiculous.

      1. Anonymous Coward
        Anonymous Coward

        Re: "Nice one judge." That I am afraid is utter nonsense.

        OP lives in wonderland and doesn't have the slightest clue as to how much it costs to get a successful drug/treatment to market (let alone the hundreds upon hundreds of failures)

      2. Anonymous Coward
        Anonymous Coward

        Re: "Nice one judge." That I am afraid is utter nonsense.

        2 Billion? you don't say mr Fox... and you do sound qualified

        but look, wikipedia again tells us a different story:

        "Studies published by diMasi et al. in 2003, report an average pre-tax, capitalized cost of approximately $800 million to bring one of the drugs from the study to market. Also, this $800 million dollar figure includes opportunity costs of $400 million.[2] A study published in 2006 estimates that costs vary from around $500 million to $2 billion depending on the therapy or the developing firm.[3] A study published in 2010 in the journal Health Economics, including an author from the US Federal Trade Commission, was critical of the methods used by diMasi et al. but came up with a higher estimate of ~$1.2B.[4] Marcia Angell, M.D., a former editor of the New England Journal of Medicine, has called that number grossly inflated, and estimates that the total is closer to $100 million.[5] A 2011 study also critical of the diMasi methods, puts average costs at $55 million.[6][7]"

        https://en.wikipedia.org/wiki/Drug_development#Cost it has proper references and everything!

        so it looks like in reality it can be anywhere from $55 million to a MAXIMUM possible of 2 billion.

        which puts it.. oh my... in the same ballpark as a medium to large-sized software development project.

        you have a good day at your drug company mr fox, enjoy your synthetic patents while they last. sounds like you're getting well paid.

        1. Anonymous Coward
          Anonymous Coward

          Re: "Nice one judge." That I am afraid is utter nonsense.

          and what failures AC number 2... do you know anything about the industry?

          big pharma don't want failures. they leave those to small biotech startups and government funding... google failed clinical trial, see the names and do the math

          it's really a shame other dealings aren't reported in exhaustive detail like the ramblings of the computing industry.

          maybe people would open their eyes more to the world and not partake so much in silly and ultimately pointless shiny toy wars.

        2. Eddy Ito
          Coffee/keyboard

          Re: "Nice one judge." That I am afraid is utter nonsense.

          @AC 00:21

          I'd be tempted to put more weight to your ability to quote wikipedia if I had any confidence you didn't just edit the article you're quoting. Even if [4] is true I don't see what relevant knowledge an editor of NEJM would have about the cost of doing something she doesn't do and is clearly a skeptic of anything she hasn't been indoctrinated into and had she been around would have banned Hippocrates himself of using tree bark tea for treating pain and fevers. Yes, her bio is on the in-tar-webs.

          Also it would seem likely that a smaller company would incur higher costs initially in part because larger firms are likely to have certain capital equipment on hand that a smaller company would not invest in until it was needed such as a centrifuge or mass spectrometer. As an analog, a small manufacturer might only start with a single milling machine when they are developing a product but a larger company may have many mills, turning centers, injection molding machines, etc. waiting for work which would substantially lower the cost of doing an additional project.

          "so it looks like in reality it can be anywhere from $55 million to a MAXIMUM possible of 2 billion."

          I must admit I have no idea what to make of this. To say anything has "a MAXIMUM possible" can only stem from a naivete that is so grand and judgmental I can only ask; what do we mere mortals look like from so far upon high? LOL, "a MAXIMUM possible", you've never heard of government, have you little one.

        3. Mr Temporary Handle
          WTF?

          Re: "Nice one judge." That I am afraid is utter nonsense.

          "but look, wikipedia..."

          And we all know what a bastion of truth and honesty Wikipedia is. Where everyone is working so very hard for the common good and no one would dream of deliberately spreading misinformation.

          [/sarcasm]

          BTW: How are Appleboy and Slim Virgin these days? I've not heard from them for a while :)

        4. Jonathan Richards 1
          Stop

          Apples and pears

          You're not comparing the same things, at all.

          1 cancer treatment drug == 1 patent

          1 'medium to large-sized software development project' == 10-1000 patents, who can tell? Microsoft says, precisely but without specification, that Linux infringes 233 of its patents (that number is remembered, but I know the company is very precise).

          In the recent Oracle v Google case, it was placed in evidence that Sun software engineers had competitions to see who could get the most blatantly stupid software patents past the USPTO. There's no doubt that in the USA the whole software patents scene is in horrible dysfunctional disarray.

    4. Chemist

      Re: Nice one judge

      "Actually most drug discovery is done in software these days"

      Total and utter bullshit !

      1. Richard 81
        Boffin

        Re: Nice one judge

        @Chemist

        Damn right, it is total bullshit.

        I'm in the toxicity prediction software business and I know for a fact that software is hardly used at all. Some of that is down to old-school (out of date) thinking on the part of synthetic and medicinal chemists, and even worse the actual decision makers. Most of it is down to the software just not being that good at modelling actual biological pathways.

        @OP

        Big pharma is failing because their business model sucks, but take away their patent protection and as soon a company develops a compound someone else will start producing it at a fraction of the cost. The companies that actually have R&D departments will die in no time. Remember that a patent submission contains the exact chemical structure of the drug. So once it's published anyone with a fairly rudimentary lab would be able to synthesis it.

        Incidentally, there are such things as orphan drugs. They're cheaper to take to market because they're aimed at diseases that big pharma wouldn't normally touch (the sufferers are too poor), but they get more patent protection, not less. Otherwise not even small well-meaning companies could afford to tackle the disease.

        1. Chemist

          Re: Nice one judge

          "Some of that is down to old-school (out of date) thinking on the part of synthetic and medicinal chemists"

          Well I know what you mean but after 38 years of hoping that we'd be able to model reality sufficiently well to do most drug discovery in a computer I think we are still far from it.

          The reasons are too many and varied for this forum but include :

          1) The conformational flexibility of small molecules

          2) The structural complexities of target molecules even when the structure is 'known' *

          3) Even with a good structure to work with the reality is often far more complex with the target protein being actually in a different state or set of states in the physiological condition so that 'docking' of drug targets to the target is rendered useless.

          4) Even if a set of algorithms could 'solve' 1 & 2 ALL the other criteria necessary for a safe, useful drug in terms of adsorption, metabolism, toxicity still need to be met - most drug leads fail here

          * - the gold standard for structure determination is x-ray but this is done in the 'solid' state usually at low temperatures and that masks the kinetic and water effects seen in 'real ' situations.

          I've seen vast advances in the area of computing being applies to medicinal chemistry but even in my own field of protein modeling there is still a LONG way to go.

    5. Killraven

      Re: Nice one judge

      "Defending the mega-billion big pharma industry patent monopoly that actually kills people around the world by not giving people access to life saving medicine."

      Note: Not giving away medicine does not equate to murder. I don't care for the high-pricing policies of big Pharma either, but let's not get ridiculous.

  5. jaywin

    Maybe...

    ... patent protection should last for variable times, for example twice the development time from when you first document the idea to when you have it working. The item is unprotected until you have it working.

    That way companies which spend 10 years and billions on making something come to life get 20 years of legal protection, where as the companies (no names mentioned) who decide to do something obvious in their latest phone UI, taking no longer than a week, only get a couple of weeks protection.

    1. Jonathan Richards 1
      Megaphone

      Submarine patents

      Ah, now you put your finger on a problem. "When you have it working". Once upon a time, in a patent protection regime far, far away, one had to submit a patent application for one's better mousetrap with a *working model*.

      So many patent applications in the software field can be summarised as "it would be really cool if you programmed a computer to do <insert cool idea here>". Submitting code, or even a binary working program, is not required. Consequently, the USPTO has granted any number of patents which surface and torpedo current innovators: the submarine patent problem.

      Repeat after me: "Patents do not protect ideas. Patents protect inventions".

      1. sniperpaddy
        Facepalm

        Re: Submarine patents

        Agreed, only the method of implementation should be protected not the abstract concept.

        By current logic, patenting "a thing that flies" could give control over a genetically engineered bird, an anti gravity rocket ship (!) and a football.

        1. Charles 9

          Re: Submarine patents

          The reason patents are by default overly broad is to cover as many possible permutations of the invention as possible. This is to prevent end-runs around the patent by knockoffs who just change a little thing here, a little thing there, then they can say, "This isn't the patented thing! Look, this isn't in the application! It's different!" Patent end-runs were rampant in the late 19th century IIRC.

    2. AdamWill

      Re: Maybe...

      "for example twice the development time from when you first document the idea to when you have it working."

      ah, cute. You're clearly one of those people who isn't very familiar with patent law and therefore assumes it works along vaguely sensible lines.

      You don't have to have _anything_ working to file a software patent. They are essentially works of fiction. There is no requirement to demonstrate any functional code. All you have to do is describe something that some code could possibly do, and there's your patent. You don't actually have to go to all the trouble of actually writing the code.

      So, nice idea, given the current system, utterly unworkable...

  6. Bunglebear
    Go

    Pharma industry

    Pharmaceutical companies have usually a 20 year patent new drugs, 25 with an SPC for a biological. 15 to 20 at least is taken with the trials, leaving the company a maximum of 10 years to recoup the average of a billion dollars it takes to develop a new drug. Compared to "swipe to unlock".

    So sir, your comparison is frankly horseshit. And the judge here has correctly recognised this.

    1. Anonymous Coward
      Anonymous Coward

      Re: Pharma industry

      15 to 20 years of clinical trials? you must be high on some really bad spores

      let's see what the wiki says: "On average, about eight years pass from the time a cancer drug enters clinical trials until it receives approval from regulatory agencies for sale to the public"

      https://en.wikipedia.org/wiki/Clinical_trial

      so take your horseshit somewhere else buddy... actually you sound like a pharm rep, the undisputed kings of bullshit.

      1. Bunglebear

        Re: Pharma industry

        OK, my poor wording. From the point a patent is applied for (from molecule discovery) to when it is marketed and revenue rolls in, which can be way after approval, can easily be 15 years for biopharm. The clinical trials are only part of this process and clock is ticking from very early on. Bear in mind the Wikipedia value is an average, development times have extended greatly over the last decade due to enhanced regulatory scrutiny.

        My point being this is a single patent on a huge amount of investment. Not lots of tiny patents on obvious design stuff that are used to block market entry to competition, and the judge was right to draw this distinction.

        1. Anonymous Coward
          Anonymous Coward

          Re: Pharma industry

          a single patent?

          is that why a drug like oxycotin is protected by 6 patents (5,508,042, 6,488,963, 7,129,248, 7,674,799, 7,674,800 and 7,683,072)?

          you don't know much about pharma do you? but congrats you sound like one.

          1. Anonymous Coward
            Anonymous Coward

            Re: Pharma industry

            oh no big pharma holding out on letting you have a pain killer BAWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWW

            and yes a number of drugs will get a number of different patents as there are a lot of different steps and many of those steps can be patented as they really are innovative

      2. Bronek Kozicki
        Megaphone

        Re: Pharma industry

        El Reg, please consider introducing policy of removing all posts which are nothing more but a citation of Wikipedia and a comment (perhaps extending it to any other non-authoritative source anyone can edit). Especially when such a post is made anonymously.

        1. Anonymous Coward
          Anonymous Coward

          Re: Pharma industry

          At least providing some citation / reference is better than just spouting off based on opinion or incorrect / ill-remembered facts.

          1. Anonymous Coward
            Anonymous Coward

            Re: Pharma industry

            I'm pretty sure that referecing Wiki-f**king-pedia carries about the same amount of factual integrity as "just spouting off based on opinion or incorrect / ill-remembered facts."

            1. Charles 9

              Re: Pharma industry

              Given that a lot of Wikipedia articles themselves have references, many of them to reputable sources, Wikipedia is far from hearsay.

  7. Anonymous Coward
    Anonymous Coward

    Some exceptions

    Quote: "Patents might be okay for pharmaceuticals, he said, because producing a single new drug might take many years"

    Some software development projects take years too - I've been involved in some. These are highly specialised targets, so not applicable to all cases, but I think they deserved some kind of protection none-the-less. The problem seems to be that patents are approved for something as trivial as a half-baked fantasy scribbled on the back of a paper napkin by someone who has no ability or intention to implement it.

    1. Daf L

      Re: Some exceptions

      The software development is not the patent. Are you saying that the development project you did over the course of years was entirely patentable, all of it - even under today's standards?

      Look at all the software patents that have recently arisen - they are for a tiny little bit of the software that would take no longer than a few hours to a few days to complete. Bear in mind that a patent isn't awarded for artistic design or ideas just the functionality.

      Look at the iPhone for instance - it might have taken them a couple of years or so to produce but they only patented a few little things (slide to unlock) and some old patents from a different era (hyper linking from recognised patterns). There was no major innovation that they toiled over and patented or the iPhone itself was not patented.

      In, for instance medicine, the end product is the wholly patented part - most often. The chemical construction to the testing, trials and administration is for that - not for the bit of packaging it comes in. The development work was all to create the patented result in most cases (Whatever you think about whether the drug should be patentable in the first place)

      1. Anonymous Coward
        Anonymous Coward

        Re: Some exceptions

        @Daf L: "Are you saying that the development project you did over the course of years was entirely patentable, all of it - even under today's standards?"

        Definitely not - most of it would be covered by ordinary copyright. But there are many design/analysis/manufacturing processes that are breaking new ground, and you can iterate through the design/coding/testing process hundreds of times before your idea really flies. But someone observing the finished product could learn the process you painstakingly designed and brought to fruition and copy it in a fraction of the time. They don't need to repeat all the failures that were discarded on the path to a working model. I think it's hard for people who don't do this kind of work to realise how difficult it is to bring new ideas to fruition, where there is no working model or process for the thing you are trying to do.

        A patent will hopefully give you time to put the new development to work and earn enough to both recover your costs and start the whole cycle all over again. It's a risky enough businesses as things stand.

        1. Daf L

          Re: Some exceptions

          That would seem to suggest that you wish to extend patent coverage to be a whole program as you have spent a long time writing it and the overall idea is a good one? That's madness.

          I've done plenty of big programming projects lasting years and replacing multi-million pound off the shelf systems. I've spent months trying to figure out how to accomplish something and the algorithms involved. The end result was pretty impressive, imho...

          However, should I get a patent on it? No of course not or any part of it. There was months of problem solving but it is not patentable. Should people be able to open up my source code and copy it? No - but copyright covers that.

          Should the look and feel be copied exactly - nope, copyright again.

          However, the process - the result. Well go ahead - create the same. By the time they have the next iteration will be released with even better features -the basic idea was based on the propriety software (which didn't fit our needs).

          For patents, even if they 'must' exist in software, you should be thinking wow, the guy who invented that is a genius. That's been a problem that people have had for a long time and this guy has managed to crack it.

          Patents should not be awarded just because you are the first to do something. Everyone will be the first to do something; So you've encountered a problem first and solved it (maybe extremely easily, maybe took some time) - does that mean you should be eligible to patent it? Someone else comes up with the same problem a year later, they have never heard of your patent, they solve their problem a similar way - bang patent lawsuit.

  8. FuzzyTheBear
    Pint

    Light in the dark.

    I truly beleive that patents are the enemy of the consumer . what's a patent good for except stiffle competition ? Software , hardware i mean ..a computer is a computer , a tablet is a tablet. We expect those devices to have a certain set of features and need them . they are not options for the consumer. If one arrives with a new function , he gets ahead of the class and market rewards them with good sales.

    We dont need patents. We need a fair first to market environment where all have an equal chance. Sure bunches of companies worked on getting some features and new functions working. Part of the game .. but a switch to power on or off a computer aint an invention.Why should even a gesture be patented or subject of one is totally idiotic.

    Gentlemen , Ladies , we live in a century where idiots are everywhere and are mostly running the show.

    Time to put more and more pressure on the Governments of the People BY THE PEOPLE FOR THE PEOPLE and make the voice of reason heard : Get rid of patents in computing from a to z.

    We each and everyone of us need to send a letter ( I already did it a number of times ) to our

    representatives and start cranking the pressure . Time to get rid of patents in computing .

    Hardware and software.

    Meanwhile .. let's forget this and go back to our old habits ..

    Time for a pint and since we didnt do a thing about it , enjoy more patent fights at our expenses .

    These lawsuits only affect our wallets after all.

    1. Anonymous Coward
      Anonymous Coward

      "If one arrives with a new function, he gets ahead of the class and market rewards them"

      OK, the problem with that logic is, without protection, someone else will quickly copy that new function and sell it cheaper, and the market won't reward the original anymore. These days we can go from design to market in 4 months, so that's about how long market advantage lasts.

      This makes it less desirable to come out with new features at all, we just get more of the same and a race to the bottom on pricing. It's what the industry has done time and time again: GB war, Mhz war, Megapixel war, always more of the same and nothing really new until profits drop off a cliff, companies get bought and sold and the cycle restarts. Is this really too hard to understand?

    2. Jonathan Richards 1
      Stop

      Re: Light in the dark.

      @FuzzyTheBear, who wrote

      'what's a patent good for except stiffle competition?'

      It's meant to promote progress. You invent something novel and innovative, which improves the state of some technological art. You can keep your inventive steps secret, and sell the product if that's what you want to do. The State, however, will give you another option. In order that the inventive step does not have to be replicated by other researchers (I'm trying hard not to mention re-inventing the wheel, but I just failed), you may get a time-limited monopoly on the invention in exchange for full disclosure. The patent gets published, and as a competitor to you, I can study your invention and see if I can improve on it. See, improvement and greater competition. What got stiffled?

    3. Morrie Wyatt

      Re: Light in the dark.

      Fuzzy, you are not quite right. Patents were designed with a specific purpose. The idea was that an inventor was given a limited time monopoly on an invention in exchange for making the design and methods available to the public. It was intended to provide an alternative to "trade secrets" and encourage dissemination of knowledge.

      Examples of trade secrets still in use are KFC's 11 herbs and spices, Coca Cola's formulation etc.

      They don't dare patent their secret because it would entail full disclosure.

      I'm not for one second defending software patents, though I can reluctantly accept that pharmaceutical patents due to the R&D required to develop the product though testing, clinical trials, FDA approval, with the implicit risk that the development investment may never make it to market due to dead ends at any point along the process.

      Software and design patents (like Apple's rounded corners on icons) are not being used to disseminate information, but instead as a corporate version of "Keepings off" that kids used to play in the schoolyard before political correctness tried to outlaw it. They are using them as landmines for any who tread close enough to their turf, and bury the actual working knowledge beneath vague patent speak with a strong peppering of pluralities and jargon to allow the patent holder to blur the meaning to cover as many surrounding ideas as possible.

      Instead of a pixel sized dot, they are more like a bottle of ink on blotting paper. They are now used as weapons of corporate warfare.

      I would love to see corporate bodies who try to pull this sort of stunt with dubious patent claims and unwarranted lawsuits hit with huge fines as a disincentive against bring their corporate squabbles into the courts. The current tendency to "sue and see what sticks" mentality needs to be stomped on hard.

      Judge Posner receives my heartfelt appreciation for his stance.

  9. robin48gx
    Linux

    With or without prejudice.....

    I like this judge.

    But did the author of the article really mean "without prejudice" ?

    http://en.wikipedia.org/wiki/Without_prejudice

    1. Anonymous Coward
      Anonymous Coward

      Re: With or without prejudice.....

      This is explained in TFA.

    2. Charles 9

      Re: With or without prejudice.....

      Not in this case.

      "Prejudice" in this case means that both litigants are considered to have been placed "in jeopardy" in the trial. This is extremely important because it goes to the 5th Amendments, which basically prohibits a litigant from being threatened by the same case twice (the "Double Jeopardy" prohibition). Now, it may be possible for a higher court to declare that the declaration of jeopardy was unwarranted, but given that he's a judge for a court of appeals, there are only two levels of appeal left: the full panel and the SCOTUS.

  10. frank ly
    Happy

    "... he uses a BlackBerry only because the court makes him."

    I'm smiling because I imagine him using it as a gavel.

    1. Mr Temporary Handle
      Happy

      Re: "... he uses a BlackBerry only because the court makes him."

      "I'm smiling because I imagine him using it as a gavel."

      That's certainly a better use for it than most of it's alleged 'features' :D

  11. Joseph Lord

    He is right the law is ridiculous

    But he is a judge and his role is to enforce the law. If Apple have a valid (under current law) patent the should have the monopoly on that for the duration of the patent without needing to prove damages.

    Google should be given time to implement a work around that doesn't infringe but should be expected to do so.

    Actually an immediate injunction may be the quickest way to get the law changed as until there are large visible impacts from patents the law won't change.

    1. Anonymous Coward
      Anonymous Coward

      Re: He is right the law is ridiculous

      But he is a judge and his role is to enforce the law.

      No, under the UK and US systems (and those deriving from them) the judiciary is supposed to have a degree of independence, and can interpret a law differently based on the merits of a specific case rather than enforcing one rigid interpretation of it. This differs from systems based on the French model, where the judiciary are not intended to have a degree of independence in interpreting the laws laid down by parliament.

      1. Anonymous Dutch Coward

        Re: He is right the law is ridiculous

        @Chris: however big his degree of independence, he still has to enforce the law, I'd say...

        1. Charles 9

          Re: He is right the law is ridiculous

          No, under the US Separation of Powers, that's the Executive Branch's job. Meaning it falls to the President and his Cabinet.

          The Legislature MAKES the law. The Executive ENFORCES the law, and the Judiciary INTERPRETS the law.

  12. Local Group
    WTF?

    So after x number of years, a drug will come out of patent...

    The pharmaceutical company that had the patent continues to manufacture them for the 1%.. But now generic drug companies can make low cost versions of the drug.

    BUT WAIT!

    The original manufacturer/patent holder CAN PAY generic makers not produce a generic version of the drug for so many years.

    The business of America is business.

    1. Charles 9

      Re: So after x number of years, a drug will come out of patent...

      That may well be, but the bribe would have to be significant for something very popular. Otherwise, the drug maker would consider the potential profits from making the generic the better option and turn it down. Not to mention there are multiple drug manufacturers, all who wish to get in on the action. If even one of them went ahead and produced a generic, the whole bribery model would be at risk.

      1. Local Group
        Thumb Down

        Re: So after x number of years, a drug will come out of patent...

        Ending drug companies’ pay-for-delay deals from the Washington Post

        AN UPCOMING REPORT by the Federal Trade Commission shows that brand-name pharmaceutical makers continue to cut questionable deals with generic manufacturers that delay the introduction of cheaper drugs onto the market.

        Such pay-for-delay arrangements hurt consumers and increase costs for federal programs such as Medicare and Medicaid, according to the report, a copy of which was obtained by the editorial board. These deals are not illegal, but they should be.

        Pharmaceutical companies rightly enjoy strong protections for products that often take years and billions of dollars to develop. These protections were so strong at one point that they discouraged would-be competitors from jumping in. The Hatch-Waxman Act of 1984 meant to address this problem by allowing generics to market “bio-equivalent” drugs as long as they did not infringe on the brand-name drug’s patent; the generic could also proceed if it proved the brand-name patent was invalid. The goal was to enhance competition and lower drug prices. That goal is thwarted when brand-name manufacturers engage in the popular practice of paying generic-drug makers to keep their products off the market.

        In 2004, the FTC did not identify a single settlement in a patent litigation matter involving drug makers that raised pay-for-delay concerns. In its new report, the agency points to 28 cases that bear the telltale signs of pay-for-delay, including “compensation to the generic manufacturer and a restriction on the generic manufacturer’s ability to market its product.”

        Sens. Charles E. Grassley (R-Iowa) and Herb Kohl (D-Wis.) have introduced the Preserve Access to Affordable Generics Act to close the pay-for-delay loophole. The bill would make such schemes presumptively illegal and empower the FTC to challenge suspicious arrangements in federal court. The most recent version gives companies a chance to preserve certain deals if “clear and convincing evidence” proves that their “pro-competitive benefits outweigh the anti-competitive harms.” The Obama administration estimates that eliminating pay-for-delay could save the government $8.8 billion over 10 years; the Congressional Budget Office offers a dramatically more conservative savings estimate of roughly $3 billion over the same period.

        The legislation should appeal to the deficit-reduction “supercommittee,” which has been tasked with identifying ways to cut the federal deficit.

        In 2004, the FTC did not identify a single settlement in a patent litigation matter involving drug makers that raised pay-for-delay concerns. In its new report, the agency points to 28 cases that bear the telltale signs of pay-for-delay, including “compensation to the generic manufacturer and a restriction on the generic manufacturer’s ability to market its product.”

        Sens. Charles E. Grassley (R-Iowa) and Herb Kohl (D-Wis.) have introduced the Preserve Access to Affordable Generics Act to close the pay-for-delay loophole. The bill would make such schemes presumptively illegal and empower the FTC to challenge suspicious arrangements in federal court. The most recent version gives companies a chance to preserve certain deals if “clear and convincing evidence” proves that their “pro-competitive benefits outweigh the anti-competitive harms.” The Obama administration estimates that eliminating pay-for-delay could save the government $8.8 billion over 10 years; the Congressional Budget Office offers a dramatically more conservative savings estimate of roughly $3 billion over the same period.

        The legislation should appeal to the deficit-reduction “supercommittee,” which has been tasked with identifying ways to cut the federal deficit.In 2004, the FTC did not identify a single settlement in a patent litigation matter involving drug makers that raised pay-for-delay concerns. In its new report, the agency points to 28 cases that bear the telltale signs of pay-for-delay, including “compensation to the generic manufacturer and a restriction on the generic manufacturer’s ability to market its product.”

        Sens. Charles E. Grassley (R-Iowa) and Herb Kohl (D-Wis.) have introduced the Preserve Access to Affordable Generics Act to close the pay-for-delay loophole. The bill would make such schemes presumptively illegal and empower the FTC to challenge suspicious arrangements in federal court. The most recent version gives companies a chance to preserve certain deals if “clear and convincing evidence” proves that their “pro-competitive benefits outweigh the anti-competitive harms.” The Obama administration estimates that eliminating pay-for-delay could save the government $8.8 billion over 10 years; the Congressional Budget Office offers a dramatically more conservative savings estimate of roughly $3 billion over the same period.

        http://www.washingtonpost.com/opinions/ending-drug-companies-pay-for-delay-deals/2011/10/24/gIQAxyfjDM_story.html

  13. DanceMan

    Way back in the mid '60's, pharma had the highest profit margins in industry. Had a relative who worked as a pharma sales rep 15 or 20 year ago, so I had a glimpse into the games and pressure laid on the reps and the doctors. I'm not crying any tears for the drug industry. Doctors and nurses, another story.

    Kudos to that judge. We need more like him.

  14. SJRulez

    I think patents should be maintained in some form but it should be down to the actual development cost since that's what they were intended for.

    Too many companies now seem to think they can patent even the slightest development (especially in software) as was the case with Apple and slide to unlock\gesture to unlock, its not a ground breaking innovation its been around since the first sliding bolt, its more a case of patent it anyway then we can use it as ammunition against someone else later.

    Most of these recent patent battles are causing harm to the industry and giving creativity a back seat...... its no longer buy our product cause its the best, its buy our products because we've managed to ban the rest.

    1. Anonymous Coward
      Anonymous Coward

      Re: Patent the slightest development

      Or in the case of some, patent things that have been in widespread use for decades.

  15. Anonymous Coward
    Anonymous Coward

    Does anyone...

    ...know of an example of a software patent that isn't either indefensibly stupid or an attempt to patent part of mathematics?

  16. Trollslayer
    Flame

    Patently trivial

    As it were.

    Seeking to patent the most trivial things which should have been rejected but are accepted (I suspect) because the applicant is liked by certaian people or makes them money.

    Cynical? Maybe.

  17. Mark 62
    Gimp

    Posner Rocks

    I always looked forward to reading about his decisions on the Bob Loblaw Law Blog.

    He is no nonsense and would have made an excellent Supreme Court justice but at this point is probably too old.

  18. JaitcH
    WTF?

    Who is this heretic ...

    if he is allowed to voice this opinion hundreds of lawyers will be unemployed, unable to do anything except draw strange numbered drawings and write unintelligible prose.

    No patents in electronics ... Jobs will arise and smite him down.

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