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Judge Suggests Apple, Motorola Should Play Nice

samzenpus posted more than 2 years ago | from the keep-your-litigation-to-yourself dept.

The Courts 140

sl4shd0rk writes "Federal Judge Richard Posner seems to be a man who gets the screwed up patent system in the U.S. As Apple pressed for more injunctions against Motorola regarding alleged patent infringement, Judge Posner has stressed the two companies should just 'get along' and pay each other royalties. A jury trial set to start last week was cancelled when Posner ruled that neither side could prove damages, and grilled Apple's legal team saying an injunction against Motorola would be 'contrary to the public interest.' Furthermore, as Apple tried to plead its injunction case concerning four patents, Posner called the U.S. patent system 'chaos' and said an order barring the sale of Motorola phones could have 'catastrophic effects.'"

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140 comments

Finally (5, Informative)

Vskye (9079) | more than 2 years ago | (#40408593)

A judge that gets it. A refreshing change for once.

Star Trek V The Final Frontier (-1)

Anonymous Coward | more than 2 years ago | (#40408613)

Star Trek V The Final Frontier: greatest science fiction film ever?

Re:Star Trek V The Final Frontier (0)

Anonymous Coward | more than 2 years ago | (#40409781)

Why does God need a starship?

Re:Finally (3, Informative)

Omnifarious (11933) | more than 2 years ago | (#40408923)

He's the judge that really adroitly handled the Microsoft antitrust trial, then flubbed it by speaking to the press about the trial before it was over. That gave Microsoft the grounds for an appeal (and subsequent 'slap on the wrist' punishment) based on him 'not being impartial'. Which was bunk, but his mistake gave the appearance, and that was enough.

But, overall, I've seen his name come up a few times, and I've been generally pretty pleased with how he's handled cases.

Re:Finally (1)

shentino (1139071) | more than 2 years ago | (#40409103)

All his mistake did was give the elite the excuse they needed to stomp on the common sense the judge displayed.

Re:Finally (2, Informative)

Anonymous Coward | more than 2 years ago | (#40409115)

Wrong judge. That was not Posner.

Re:Finally (1)

Omnifarious (11933) | more than 2 years ago | (#40413191)

Bother! *sigh* I should've looked it up to make sure first. :-(

Re:Finally (5, Informative)

haploc (57693) | more than 2 years ago | (#40409631)

He's the judge that really adroitly handled the Microsoft antitrust trial, then flubbed it by speaking to the press about the trial before it was over. That gave Microsoft the grounds for an appeal (and subsequent 'slap on the wrist' punishment) based on him 'not being impartial'. Which was bunk, but his mistake gave the appearance, and that was enough.

That judge was Thomas Penfield Jackson.

Re:Finally (1)

Omnifarious (11933) | more than 2 years ago | (#40413213)

Bother! *sigh* I should've looked it up to make sure first. :-(

See this comment [slashdot.org] along the same lines.

Re:Finally (5, Interesting)

Anonymous Coward | more than 2 years ago | (#40409769)

Posner is probably the most famous judge alive that's not in the SCOTUS. His words may even be mroe influential than some Supreme Court judges. His decisions are in practically every law case book that every law school student will read in every subject imaginable.

Also, as pointed out above, he wasn't the judge that handled the Microsoft antitrust case.

Re:Finally (1)

Anonymous Coward | more than 2 years ago | (#40409181)

The Judge does not get it.
Catastrophic effects are good. That will lead to changes in the patent systems which will benefit everyone.
Not changing the patent system and expecting large companies to "play nice" will only result in an oligopoly. The large companies will still sue the small ones into oblivion.

Re:Finally (5, Insightful)

Merk42 (1906718) | more than 2 years ago | (#40410079)

Catastrophic effects are good. That will lead to changes in the patent systems which will benefit everyone...

You're assuming that second part would happen...

Re:Finally (1)

phantomfive (622387) | more than 2 years ago | (#40412257)

I believe the mistake Apple made, and Oracle as well, is to not change the jurisdiction to the East Texas District. That place has insane patent law.

Re:Finally (0)

Anonymous Coward | more than 2 years ago | (#40412555)

I thought their mistake was pushing the limit on patent abuse and being douchebags...

Catastrophe theory (-1)

Anonymous Coward | more than 2 years ago | (#40408621)

While I agree that the patent system is messed up and have no real sympathy with the idea of banning Motorla (or Apple) products, the idea that people not getting their shiny toys would be a catastrophe is a bit much. They could always get some other phone.

Re:Catastrophe theory (4, Insightful)

easyTree (1042254) | more than 2 years ago | (#40408683)

They could always get some other phone.

First they came for Motorola,
  and I didn't speak out because I wasn't a Motorola fan-boy.

Then they came for Nokia,
  and I didn't speak out because I wasn't a Nokia fan-boy.

Then they came for HTC,
  and I didn't speak out because I wasn't an HTC fan-boy.

Then they came for me
  and there was no one left to speak out for me.

Re:Catastrophe theory (5, Funny)

Anonymous Coward | more than 2 years ago | (#40408701)

So, you are a Samsung fan-boy then?

Re:Catastrophe theory (1)

easyTree (1042254) | more than 2 years ago | (#40408721)

Yah :D

Re:Catastrophe theory (0)

Anonymous Coward | more than 2 years ago | (#40409487)

I'm there with you, Samsung is the new Nokia.

Re:Catastrophe theory (1)

Anonymous Coward | more than 2 years ago | (#40408845)

Cutting a large amount of the Motorola market off from Motorola products could be catastrophic for the company. Which would be catastrophic for the jobs of a lot of the people working there. Which would be bad for the economy. So yes.

Re:Catastrophe theory (0)

Anonymous Coward | more than 2 years ago | (#40409009)

Cutting a large amount of the Motorola market off from Motorola products could be catastrophic for the company.

Same is going to apply in most of these situations. It's a reason for the legislature to get rid of this nonsense about banning products, nothing special about this case.

Which would be catastrophic for the jobs of a lot of the people working there. Which would be bad for the economy.

So too big to fail? Sounds like these big manufacturing companies need to be broken up.

Re:Catastrophe theory (5, Interesting)

chrb (1083577) | more than 2 years ago | (#40409193)

So too big to fail? Sounds like these big manufacturing companies need to be broken up.

There is a big difference between a) a company declining over time, and b) what would happen if the government prevented a large consumer electronics company from selling its wares, thus forcing it into rapid failure, probably to the point of bankruptcy within days as the stock crashes.

Having said that, politically speaking these companies probably are "too big to fail"; can you imagine politicians standing idly by if some foreign competitor ever got a complete sales ban on iPhones? I bet patent law would be reformed within weeks to "protect American jobs".

Re:Catastrophe theory (0)

Anonymous Coward | more than 2 years ago | (#40409303)

There is a big difference between a) a company declining over time, and b) what would happen if the government prevented a large consumer electronics company from selling its wares, thus forcing it into rapid failure, probably to the point of bankruptcy within days as the stock crashes.

The patent system already, and inherently, favors established big companies over new entrants to a market. This is not a good thing. Enforcing that further is even worse. I'm all for the legislature stopping this nonsense about being able to ban products before the court case determines any wrong doing/infringement/liability, but saying "ah, [small or big company] is suing [small company], that's okay, small company all your products are banned, go directly to hell" compared to "oh no [small or big company] is suing [big company] we must protect big company's sales!" is not conscienable.

Having said that, politically speaking these companies probably are "too big to fail"; can you imagine politicians standing idly by if some foreign competitor ever got a complete sales ban on iPhones?

Then that's a problem that needs to be fixed. If banning a product line of one company would be such a disaster (and frankly, I don't buy it, people will get by fine with a different shiny toy) then compulsory licensing of that product line to other suppliers is the answer, so we have multiple points of supply and no disaster.

Re:Catastrophe theory (5, Insightful)

blackest_k (761565) | more than 2 years ago | (#40408915)

There is a massive supply chain and investment that goes into the production of these shiny toys. That is the catastrophe when all of a sudden you can't bring your product to market. That investment can become a massive loss.

Any company that uses lawyers to ban competing products is going to get a bad reputation and damage their own sales.

Is an iPad such a bad product that it can not compete with a Samsung tablet? If I want a Samsung tablet and I can't buy it because of Apple, I really don't think I will buy an iPad instead. I probably will buy a different tablet from a different manufacturer.

I may well refuse to buy Apple products in general due to their interference manipulating what I can buy.

Change the company names and the products to suit your own preferences, it doesn't really matter who's manipulating markets through court rooms. They deserve to lose sales due to their tactics.

Products should compete on their merits not on legal technicalities where 2 engineering teams solved similar problems, independently of each other.

Re:Catastrophe theory (0)

Anonymous Coward | more than 2 years ago | (#40408967)

I may well refuse to buy Apple products in general due to their interference manipulating what I can buy.

That's stupid. Your beef is with the USPTO, not Apple.

Re:Catastrophe theory (1)

ongelovigehond (2522526) | more than 2 years ago | (#40409003)

So he should refuse to buy USPTO products ?

Re:Catastrophe theory (5, Interesting)

wierd_w (1375923) | more than 2 years ago | (#40409021)

No, its properly with Apple.

A patent is a limited right, granted to get the information published for the public to read and implement later.

It is intended to help prevent industrial secrets, and improve the state of the art. That is the purpose for a patent.

Apple's violent brandishing of the powers afforded to it via the patent process to stifle innovation, and to suppress the advancement of the state of the art is directly counter-intuitive to the reason they were granted the patent in the first place.

Apple could have chosen to license the patent for a steep fee, or to charge a royalty for the use of their patent, but instead seek to use it as a barrier to entry for other and competing products.

This is not the fault of the USPTO. It is squarely the fault of Apple Inc.

Re:Catastrophe theory (1)

shentino (1139071) | more than 2 years ago | (#40409113)

It's BOTH at fault.

First, on the USPTO, for granting the patents.

Second on Apple for maliciously taking advantage of a bad situation.

Replace patent abuse with burglary, the USPTO with a stupid homeowner that didn't lock the door, and Apple with the burglar, and you have the same thing.

Re:Catastrophe theory (2)

Teun (17872) | more than 2 years ago | (#40409327)

Please get to the core of the problem, that's your legislature and it's voters.

Re:Catastrophe theory (1, Insightful)

MrMickS (568778) | more than 2 years ago | (#40409731)

FFS Motorola are trying to charge way above the norm for FRAND patents. If everyone with a FRAND patent charged the percentage Motorola is after there would be no way for anyone to make anything.

Its much easier to just bash Apple though. Way to let your agenda and prejudice show.

Charging more than FRAND for non-frand licensees (2, Informative)

Anonymous Coward | more than 2 years ago | (#40409871)

And that's absolutely fine. The license terms Apple want are for people who contribute to the patent pool. Apple don't want to contribute to that patent pool like the others, but still wants the same deal apart from that payment.

The FRAND payment is cash plus put your patents in the pot.

And everyone else is paying it.

Apple don't want to. Why should they get a cheaper rate than anyone else?

Re:Charging more than FRAND for non-frand licensee (-1)

Anonymous Coward | more than 2 years ago | (#40411337)

YOU ARE WRONG!!

You keep posting this drivel in an attempt to misinform readers but THAT IS NOT HOW FRAND PATENTS WORK!!

And people keep modding you up which boggles my mind.

YOU ARE WRONG!!

Re:Charging more than FRAND for non-frand licensee (2, Informative)

Anonymous Coward | more than 2 years ago | (#40411957)

DISCLAIMER: I do not know if the poster you are calling out is factually correct in this situation(Apple wants the same FRAND license deal as those with patents in the pool).

If he is factually correct though you need to stop calling him wrong. This is how FRAND patents work. FRAND doesn't guarantee the same exact deal for everyone licensing a patent but does dictate that each deal must be fair and comparable to other licensing deals. Circumstances, however, can be taken into account.

Simply:
I have a major patent in the pool for some standard, your company has a major patent for that standard, too. We decide to just draw up a contract allowing us to use each others' patents with no money changing hands.
Another company wants to use both our patents. They have no patents in the pool. Do we have to license our patents to this third company for free since we didn't charge each other money in our licensing deal?
No. That would be stupid. We come to a separate deal with that third company, probably for money. As long as our terms are fair we don't have to compare it to the deal between our two companies. That is a separate case.
If a fourth company comes along in the same boat as 3(wants to use our patents, has no patents of their own in the same pool) then we must give them a deal comparable to what we gave the third company. We can't charge them 2,000 times as much because we don't like the CEO. That is the nondiscriminatory part. Not "everyone gets the exact same licensing terms".

Re:Catastrophe theory (0)

Anonymous Coward | more than 2 years ago | (#40411611)

It's likely their response to Apples asshattery wrt to shite software and design patents versus patents that took real and actual expensive research and true innovation.

As far as I am concerned even frand should be useable for import bands, etc ifa company continuously declines to license them, and btw if $5 is too much then what is $15 to M$ for their hacks, sorry patents?

Re:Catastrophe theory (1)

AngryDeuce (2205124) | more than 2 years ago | (#40409837)

Replace patent abuse with burglary, the USPTO with a stupid homeowner that didn't lock the door, and Apple with the burglar, and you have the same thing.

Most rational places don't see leaving your door unlocked as an invitation to be burgled, nor infer any culpability whatsoever to the homeowner (nor diminish the burglar's in any way) if they are burgled because of it.

At some point we're going to need to stop explaining away this behavior that's clearly at odds with the spirit of the law, if not the letter. I seriously doubt that Apple's use of patent law as a club to beat every competitor to death is in any way in following the spirit of patent law at all.

Re:Catastrophe theory (2)

jo_ham (604554) | more than 2 years ago | (#40409535)

So wait, why is this Apple's fault?

Surely Apple have the choice when it comes to a patent that has been granted to them. If they *want* to licence it for a steep fee, they can. If they *want* to block anyone else from using it, they can.

I don't disagree with your sentiment (I think the whole patent system is getting out of hand), but the way it it currently set up, Apple is perfectly within its rights to sue other companies who infringe on patents it holds (even frivolous ones) - that's how the system works.

The patent system was set up to foster exactly the sort of thing that Apple (and many of its competitors) are doing. It's just getting into a ridiculous position because more and more things are being patented that really shouldn't be.

First and foremost, Apple is a business - it is going to do what it can to ensure that it succeeds at that goal. I may think it's a stupid move, but they are well within their rights to make it.

And if we don't like their attitude (1)

Anonymous Coward | more than 2 years ago | (#40409615)

And if we don't like their attitude as displayed by the choice they took, we can blame apple.

What else can you blame someone for, if not the choice they made?

Tell me where the patent laws say that apple HAD to do what they did?

Nowhere.

First and foremost, Apple want our money. Acting like this, I decide to forbid them access to it and blame them for the choices they took.

Re:And if we don't like their attitude (1)

jo_ham (604554) | more than 2 years ago | (#40409647)

And if we don't like their attitude as displayed by the choice they took, we can blame apple.

What else can you blame someone for, if not the choice they made?

Tell me where the patent laws say that apple HAD to do what they did?

Nowhere.

First and foremost, Apple want our money. Acting like this, I decide to forbid them access to it and blame them for the choices they took.

So in your militant nerd rage are you "forbidding" Motorola and Samsung from accessing your money too? No one has clean hands here, but at least they're not abusing FRAND patents.

You're the nerdrager. (0)

Anonymous Coward | more than 2 years ago | (#40409967)

Just because you love Apple so much, any criticism "must" (in your insane logic) be for no reason at all.

Apple CHOSE their actions. People CHOOSE to blame Apple FOR their actions.

How else does this work?

I notice you didn't manage to answer that.

PS FRAND licenses require a payment of "put your patent in the pool and pay this amount of cash". Apple don't want to put their patents in the pool and therefore you're arguing that Apple should get the same patents cheaper than anyone else. How is that "fair"?

Re:You're the nerdrager. (1)

jo_ham (604554) | more than 2 years ago | (#40410445)

Just because you love Apple so much, any criticism "must" (in your insane logic) be for no reason at all.

Apple CHOSE their actions. People CHOOSE to blame Apple FOR their actions.

How else does this work?

I notice you didn't manage to answer that.

PS FRAND licenses require a payment of "put your patent in the pool and pay this amount of cash". Apple don't want to put their patents in the pool and therefore you're arguing that Apple should get the same patents cheaper than anyone else. How is that "fair"?

Err, wrong. FRAND patents require that you licence your patent reasonably, fairly and in a non-descriminatory fashion. It *does not* require that you put patents into the pool. How could it? You seem to fundamentally misunderstand the reason for the FRAND system. The standard is set - if a new player comes along and "puts their patents in" then surely the standard would have to change? There is absolutely no requirement that the fee for use of FRAND patents includes licencing patents of your own. You *can* do that, if you choose to (and the licensing party agrees) but you are not obligated to do so - you can pay in cash, or goats, or blue M&Ms or anything else you can trade with, as long as you pay the same amount as everyone else.

You are also (wilfully, I hope, but possibly not, in which case I'm so very sorry) about "choosing to blame". My point is not that Apple are not blameless, or that people aren't free to assign blame. My point concerns the hypocrisy of their statements. "Apple is abusing the patent system! rwar! I won't give them any of my money! Ooh, check out my shiny Samsung Galaxy!"

Also, you forgot to log in.

Yes, that's what FRAND means. (0)

Anonymous Coward | more than 2 years ago | (#40410691)

"FRAND patents require that you licence your patent reasonably, fairly and in a non-descriminatory fashion"

Yes, that's what FRAND means.

If payment for ANYONE wanting a patent has "pay some money and put your patents in the pool", then the reasonably, fair and non-discriminatory fashion request for payment is to require from Apple "pay some money and put your patents in the pool".

Apple don't want to pay that price, though.

"It *does not* require that you put patents into the pool."

It does if the license costs for anyone else requires that you put patents in the pool.

You see to believe that there is a Standard Set License under FRAND. You are wrong, though. FRAND does not determine the clauses of the license, only that the license terms are applied without discrimination.

"My point is not that Apple are not blameless, or that people aren't free to assign blame"

WRONG.

"by jo_ham (604554) writes: on Friday June 22, @07:00AM (#40409535)

So wait, why is this Apple's fault?"

In response to someone saying:

"by shentino (1139071) writes: on Friday June 22, @05:13AM (#40409113) ...
Second on Apple for maliciously taking advantage of a bad situation."

So you're proclaiming that someone is not allowed to blame Apple.

But I predict you will either ignore this or fluff away saying lots of words that don't acknowledge this fact, since it disproves your pretend "moderate voice" bollocks.

Re:Yes, that's what FRAND means. (4, Informative)

jo_ham (604554) | more than 2 years ago | (#40410941)

You're arguing semantics. I offered an opinion and a question - that's the point of a discussion, no? I'm asking why, not proclaiming that they can't.

Here's a scenario for you.

A: I slipped over on a wet floor, it's the store's fault

B: How is it the store's fault?

A: They didn't have a sign up warning me.

B: I see, well I'd suggest that you watch your step in future, but I agree that the store should put up a sign - perhaps they hadn't noticed yet?

The question does not mean "you are not allowed to assign blame".

I'm also not sure how I can have a "pretend moderate" voice. Either I'm being moderate or I'm not? Do you see me raging and cursing at anyone?

You're claiming "Apple don't want to pay that price [the licence cost of a FRAND patent]" - but on what grounds? Do you have a citation on that? They were in negotiation with Nokia for years over the value of cross-licenced patents to come to an agreement. There was certainly never any indication that they "didn't want to pay" - they just want to pay what's fair.

As far as lawsuits with Motorola and Samsung over FRAND patents, well that's where the water gets murky. For some reason both Samsung and Moto seemed totally fine with Apple's payment to use the 3G patents, right up until they needed a stick to beat them with, then all of a sudden "ooh, they are infringing on this patent, and haven't paid for it!". Funny that. I'm not sure how they can only partially have paid to use the 3G patents. If they have not paid for one, then they must also be in violation of all of them. Apple uses pretty standard 3G radios and chipsets - if it took Samsung 5 years to determine that there was one patent that Apple didn't pay for (given that they've been licensing their part of the 3G pool for years) then I have to wonder what on earth they were doing for all that time? Surely not holding one back that they could use in the event they got sued? How blameless of them! The alternative is extreme incompetence on Samsung's part. I'm not sure what's worse.

The 3G patent pool does not require that "you put patents in the pool" in order to licence what is currently in there (and this is what we're discussing here). If it did then the 3G standard would be meaningless, since the patent pool would continue to grow. What happens to older devices if new "essential" patents are added to the pool? The 3G FRAND patents are set the way they are to ensure interoperability across all the different cellular manufacturers, otherwise there would be chaos. The pool is static, containing the patents necessary for the standard to work.

Just for completeness, I am aware that different licence conditions are possible for FRAND patent pools, but that in general they are used when an industry standard is involved, so they tend not to grow (in terms of patents) once the standard is set, unless that standard is extended.

That isn't the scenario we have, though. (0)

Anonymous Coward | more than 2 years ago | (#40411213)

It's not even analogous.

And, as predicted, you ignored the evidence that your claim of "even-handedness" was bunkum.

Worse, in the case you have, a wet floor in a shop needs to have a warning. Health and Safety. Therefore, legally, it IS the store's fault.

Re:That isn't the scenario we have, though. (1)

jo_ham (604554) | more than 2 years ago | (#40411271)

So, you are following my posts. Interesting. Can I assume you're just forgetting to log in?

You also ignored the rest of my argument.

Re:Yes, that's what FRAND means. (0)

jvkjvk (102057) | more than 2 years ago | (#40411247)

I'm also not sure how I can have a "pretend moderate" voice. Either I'm being moderate or I'm not? Do you see me raging and cursing at anyone?

Of course you are. You just want to distort the meaning so that you don't fit.

One can calmly, with a smile, advocate just about anything. That's a "pretend moderate" voice. One *seems* reasonable, affable and moderate - yet if another actually digs into the meat the animal is rabid.

Whether or not this accurately describes your position is left to the readers.

Regards.

Re:Yes, that's what FRAND means. (1)

jo_ham (604554) | more than 2 years ago | (#40411299)

I'm also not sure how I can have a "pretend moderate" voice. Either I'm being moderate or I'm not? Do you see me raging and cursing at anyone?

Of course you are. You just want to distort the meaning so that you don't fit.

One can calmly, with a smile, advocate just about anything. That's a "pretend moderate" voice. One *seems* reasonable, affable and moderate - yet if another actually digs into the meat the animal is rabid.

Whether or not this accurately describes your position is left to the readers.

Regards.

I suppose that's true, and the quiet ones can often be more dangerous than the rabid, raging ones. All I can say is that I don't bear anyone any ill will, nor am I malicious in my comments. I'm occasionally facetious, but there's no malice in it.

To promote the progress of science and useful arts (2)

mangu (126918) | more than 2 years ago | (#40409693)

Surely Apple have the choice when it comes to a patent that has been granted to them. If they *want* to licence it for a steep fee, they can. If they *want* to block anyone else from using it, they can.

Not according to the US Constitution [cornell.edu] which says patents exist "To promote the progress of science and useful arts".

Unless Apple shows how their blocking others from using their patents will promote the progress of science and useful arts, what they are doing is unconstitutional.

Re:To promote the progress of science and useful a (3, Informative)

jo_ham (604554) | more than 2 years ago | (#40409717)

"Exclusive use of the granted patent allows us to recoup the cost of the research spent on making this product, allowing us to work on future products".

You won't agree with that (and I don't really), but a court will (and has).

Re:To promote the progress of science and useful a (1)

bluefoxlucid (723572) | more than 2 years ago | (#40409947)

the premise behind patents is that it promotes the progress of science and useful arts by encouraging businesses to reveal trade secrets. We don't want inventors taking their ideas to the grave; we want them rushing out to tell the world. There's vultures waiting to steal all their ideas, though, so we give them legal right to decide who's allowed to play that way for a little while in exchange for telling us how they do it. Then in 14 years we can build on their ideas, or at least use them everywhere, advancing technology in general.

Re:Catastrophe theory (0, Flamebait)

whisper_jeff (680366) | more than 2 years ago | (#40409579)

Oh my gawd dude. Seriously?? Motorola and Samsung are brandishing FRAND patents against their competition which goes directly against the framework of FRAND patents and you're vilifying APPLE???

Holy crap dude. Insanely biased much?

Apple has the right to license their non-FRAND patents or to not license them, as they chose. That is how the patent system works. FRAND patents, such as those being wielded by Motorola and Samsung, however, MUST be licensed to EVERYONE and ANYONE who wants to license them for FAIR and REASONABLE NON-DISCRIMINATORY rates. And, currently, they aren't.

And you're vilifying Apple.

Jesus dude. At least make some thinly veiled attempt to disguise your bias next time or you'll start to sound like a shill.

Re:Catastrophe theory (0)

Anonymous Coward | more than 2 years ago | (#40409979)

OMG, dude. Maybe you don't have the whole story. I mean Jesus Christ on a cracker or some other insane crap you might say judging from the hissy fit you threw. Also maybe apple isn't in the patent pool so they don't get the same frand deal the rest do. Look up how this works.

Re:Catastrophe theory (4, Insightful)

lorenlal (164133) | more than 2 years ago | (#40410045)

Nope. Not biased at all. The suit that Motorola fired against Apple was a direct reply to the suit the Apple opened against Motorola for violating Apple's patents.

See, Apple is vilified in this case because they aren't asking for compensation, they're trying to leverage their patents to *prevent anyone from licensing them or bringing a competitive product to market.* Motorola does license their FRAND patent fairly, with one exception being made for customers who are currently suing them.

Apple's actions are completely against any spirit of patents. They're not just a dick maneuvers, they harm markets, prevent innovation, and hurt us (the consumers). Considering that Apple has a bit of history of manipulating images to "prove" likeness with Samsung, the population here is going to side with whomever Apple is suing.

And given your posting history, I'd be very cautious when calling someone a shill.

Re:Catastrophe theory (0)

Anonymous Coward | more than 2 years ago | (#40410645)

No, Apple is protecting its products and patents. They created something, patented it, thus they have the right to profit from that product or design and not allow anyone else to just copy it.

Why does everyone here think that a patent is just a publication of some design or product that can then just be copied by everyone else. Patents are to protect the inventor from having the idea stolen and profits made by another person or company of their original ideas.

Moto has copied elements of Apples products and thus are being sued for those copied products. Moto on the other hand has decided that their FRAND patents need to be paid for twice, once by the chip maker that Apple uses, and again by Apple because they use those chips. They are double dipping with their FRAND patents and thus why Apple never licensed Moto's FRAND patents. Moto is trying to license Apple's patents but Apple is saying no and they have the write to say no, but at the same time they are trying to hold out the FRAND patents at non reasonable prices, which also include licensing Apple's patents.

So Moto knows they infringed on Apple's patents, but they are trying to use their FRAND patents to make Apple relent, which isn't right. Apple has the legal high ground no matter how to feel about each company or their products.

Re:Catastrophe theory (1)

Anonymous Coward | more than 2 years ago | (#40409735)

So you're saying that the blame resides with the company or individual that is exercising it's limited rights, rather than the government office that granted the arguably invalid patent in the first place?

You aren't making a very good argument here.

Posting anonymously because common sense gets modded into oblivion these days.

Re:Catastrophe theory (1)

oakgrove (845019) | more than 2 years ago | (#40410031)

Why not both. If you see perceive something as injustice it seems silly to keep your mouth closed until you can find just the right person to blame. If apple is abusing the patent system then they should be held accountable in the public opinion.

Re:Catastrophe theory (1)

spacepimp (664856) | more than 2 years ago | (#40410117)

Motorola isn't exactly playing nice with their FRAND licensing on this, which probably hurts their case a bit as a result. I agree with you they are both abusing the system. Sadly this has become the norm for Apple to act like this and only us geeks seem to care about how it affects the larger tech landscape.

Re:Catastrophe theory (1)

Anubis IV (1279820) | more than 2 years ago | (#40412059)

A patent is a limited right

According to the U.S. Constitution, it's an "exclusive Right". The only limit to that right is the life of the patent.

It is intended to help prevent industrial secrets

Trade secrets and patents serve entirely different purposes and are generally applied to different things. For instance, the most famous example of a trade secret might be the Coca-Cola formula, but Coca-Cola couldn't patent it even if they wanted to, nor would patenting it be in their best interest since it would effectively place a lifespan on how long they could continue to sell their primary product. Formulas, recipes, mixtures, and other things of that sort are ideal for treating as trade secrets, and trade secrets are protected by various laws in different states. Stuff that your competitors can take apart and put on a production line of their own within 6 months is stuff that is better off being patented, that way they are unable to do so.

and improve the state of the art

Correct. More specifically, it's "[t]o promote the Progress of Science".

Apple's violent brandishing of the powers afforded to it via the patent process to stifle innovation, and to suppress the advancement of the state of the art is directly counter-intuitive to the reason they were granted the patent in the first place.

That's not entirely correct, and is slightly hypocritical since you admit they have rights. Patents are granted to promote the progress of science "by securing for limited Times to...Inventors the exclusive Right to their...Discoveries" (the "..." stuff is all related to copyright). So, if the way that science is progressed is by securing that exclusive right, they need to be able to enforce that exclusivity. And while you are correct that any one specific enforcement may "suppress the advancement of the state of the art", you're failing to consider the bigger picture. If patents couldn't be enforced, the incentive for innovation would wither and disappear, leaving the state of the art in an even worse place.

So, you need enforceable patents, or else the entire purpose of the system falls apart under its inability to protect itself. As broken or misused as I think the system is, I'd still take it in its current condition over the idea of throwing it out altogether.

Apple could have chosen to license the patent for a steep fee, or to charge a royalty for the use of their patent, but instead seek to use it as a barrier to entry for other and competing products.

They have an exclusive right to the patent. If they want to maintain their competitive advantage instead of license it, that's their right. There's nothing wrong with them doing so. It's their prerogative as the patent holder, and they have no responsibility to do otherwise.

All of this said, I don't support many of the patents that have been awarded to Apple or the other companies being discussed, nor do I support the use of those patents in litigation. If someone truly innovates and then wants to protect their innovation, I'm fine with that. If someone gets a ridiculous patent and then uses it as a club, I loathe that.

Re:Catastrophe theory (1)

Hognoxious (631665) | more than 2 years ago | (#40409013)

The company that's being blocked loses out on sales whether there's really a case to answer or not, and they have no realistic chance of recouping that.

Injunctions should only be used where there's a possibility of immediate and irreparable damages to the person requesting it. I find it hard to imagine a valid reason, to be honest. Perhaps if some third party product breaks a device it's claimed to be compatible with?

If Apple eventually prevail in their case, then the more Motorola sold in the meantime the more they'll have to pay. If Apple's case fails then Motorola haven't been harmed.

Re:Catastrophe theory (1)

edremy (36408) | more than 2 years ago | (#40410211)

Perhaps not catastrophic in the sense of "Giant asteroid about to wipe out humanity" but it's still pretty bad.
  • You assume there is another phone out there that doesn't infringe- there simply isn't. All phones at this point infringe someone else's IP: it's Moto now, it will be Samsung, HTC and the rest later. Of course, Apple will then be countersued by Moto and Nokia and a dozen others.
  • Thus, good design gets litigated out of existence- you can't use anything, no matter how good if the other guy might hold some patent somewhere that will get you sued. Innovation slows to a crawl
  • Phones are made by people- a lot of people, most in useful trades like engineers. If it's standard to do the design work to make a new phone and then get it blocked, companies don't really need those engineers- better hire more lawyers instead.
  • Above point leads to bizarre activities like patent trolling, which benefits no one but a few sociopaths. After all, you don't need to actually make anything at all, you just need to sue people.

"I dont think so, Mr. Powers..." (3, Insightful)

wierd_w (1375923) | more than 2 years ago | (#40408855)

I agree with the judge. Apple should get a reasonable, and non-predatory royalty for any alledgedly used patents, not an injunction barring anybody else from making phones that aren't tincans on wires.

But that would be contrary to the memory of dr evi..I mean, Steve Jobs, who famously said he would [expletive] destroy android.

Apple doesn't want a royalty. They want dominance. I hope the judge hands them their balls on a plate instead.

Re:"I dont think so, Mr. Powers..." (0)

Anonymous Coward | more than 2 years ago | (#40408889)

Apple doesn't want a royalty. They want dominance. I hope the judge hands them their balls on a plate instead.

Personally I want an all out Patent War. It might finally shake up enough people to get things changed for the better.

Re:"I dont think so, Mr. Powers..." (0)

Anonymous Coward | more than 2 years ago | (#40409063)

Personally I want an all out Patent War. It might finally shake up enough people to get things changed for the better.

Not sure that would happen. Look at what happened, or rather did not happen, to the financial system after the crisis.

Re:"I dont think so, Mr. Powers..." (1)

Sique (173459) | more than 2 years ago | (#40409317)

There are now less but bigger banks. Just more too big to fail than ever.

Re:"I dont think so, Mr. Powers..." (0, Troll)

whisper_jeff (680366) | more than 2 years ago | (#40409383)

Apple doesn't want a royalty. They want dominance. I hope the judge hands them their balls on a plate instead.

And Motorola? A company that is abusing FRAND patents? Nothing? No comment on what they're doing?

Of course not. This is Slashdot - everything Apple is evil and if anybody attempts to screw them over, even if it's utilizing anti-competitive tactics, it's ok because fuck Apple, right?

Yeah.

Hand-in-the-sand anti-Apple fanboyism is just as annoying as blindly loyal pro-Apple fanboyism.

Re:"I dont think so, Mr. Powers..." (0)

Anonymous Coward | more than 2 years ago | (#40409517)

This is Slashdot - everything Apple is evil...

Wait, I thought it was "everything Microsoft is evil", or have I picked that up wrong?

Re:"I dont think so, Mr. Powers..." (1)

OS2toMAC (1327679) | more than 2 years ago | (#40409763)

This is Slashdot - everything Apple is evil...

Wait, I thought it was "everything Microsoft is evil", or have I picked that up wrong?

Actually it seems to be "everything not-LINUX is evil". I was going to say "everything that the non-Technical consumer likes is evil", but I'm not sure that fits in the Microsoft case. Maybe "only the perceived underdog is not evil"?

Re:"I dont think so, Mr. Powers..." (3, Insightful)

tepples (727027) | more than 2 years ago | (#40409839)

I was going to say "everything that the non-Technical consumer likes is evil"

How about "everything deliberately antagonistic to technical users is evil"?

Maybe "only the perceived underdog is not evil"?

That view would fit in with Slashdot commenters' view of antitrust law. The market leader, especially one in a position of exclusive rights, is likely to have market power [wikipedia.org] and is likely to have abused this market power.

Re:"I dont think so, Mr. Powers..." (4, Interesting)

IamTheRealMike (537420) | more than 2 years ago | (#40410133)

I think you'll find that started after Apple began attempting to destroy all other companies. Motorola, being a company that invents important technologies, has its patents largely in pools licensed to others. I don't think anyone ever anticipated anything like what Jobs started, if they had, the terms around FRAND patents would likely look different.

Re:"I dont think so, Mr. Powers..." (2)

Anubis IV (1279820) | more than 2 years ago | (#40412541)

Apple should get a reasonable, and non-predatory royalty for any alledgedly used patents, not an injunction barring anybody else from making phones that aren't tincans on wires.

I'm curious how far you're willing to take your idea. Imagine you invented something original that made everything else on the market look like "tincans on wires", you patented it, and your company was starting to disrupt the market thanks entirely to the competitive advantage offered by your innovation. You're setting your company up for long-term success, when one of your larger competitors, fearful that they'll be pushed out, copies your idea, deploys it on all their devices, destroys your competitive advantage, and uses their entrenched position to effectively push you out of the market before you got big enough to survive the assault. It's a pretty common story.

A "a reasonable, and non-predatory royalty" seems like a rather hollow victory in comparison to the long-term success that you've been forced to sacrifice, doesn't it? And you'd rightfully feel like you had been robbed if someone suggested otherwise. Granted, Apple isn't getting pushed out of the market by any means, but I really hate it when people suggest that companies should be forced to license their patents against their will (even in the case of endemics, the U.S. government doesn't force pharma companies to license patents; it simply infringes on them [uh.edu] ). If a company wants a competitive advantage instead of a payout, that's their "exclusive right" granted in Section 8 of the U.S. Constitution, for as long as the patent exists.

And before someone mentions it, Motorola being forced to license their patents to Apple was entirely of their own doing. They submitted their patents to be a part of various industry standards, and in exchange for having their patents accepted as part of the standard, they, in turn, accepted that they would be required to offer FRAND terms to anyone who wanted to license the patents. In contrast, Apple made no such agreement (at least with these patents), so forcing them to license them is nonsense.

As for whether the patents should have been granted in the first place, well, I think there have been a lot of crappy patents granted to all parties involved, many of which should simply be revoked. Whether these ones fall into that category or not, I don't know.

Paralel reality :) (3, Funny)

Pecisk (688001) | more than 2 years ago | (#40408877)

Wow, judge who actually gives a **** about theoretical intent of the law? Must be something wrong happened. We branched off from main timeline, yes?

Seriously, so much common sense that it is overhelming.

Re:Paralel reality :) (3, Insightful)

brokeninside (34168) | more than 2 years ago | (#40409929)

That's an ironic comment on Posner who champions judicial pragmatism which, so far as I can tell, is what used to be called legal realism back in the days of Oliver Wendell Holmes. The chief tenet of this judicial philosophy is that law is nothing more than a prediction of how judges will rule and the state will enforce the laws. The theoretical content is minimal. Everything is reduced that which actually happens.

In this view, any `intent' by the framers of a law is only as relevant as the police and judges hold it to be. No more, no less.

Re:Paralel reality :) (1)

Moldiver (1343577) | more than 2 years ago | (#40410251)

Case-law is simply a totally broken system that gives judges to much power without any control over them.But it is fitting to the "democratic" 2 party-system the us has - both are insane.

Judge is walking a thin line over a slippery slope (-1, Troll)

z3alot (1999894) | more than 2 years ago | (#40408931)

A judge who dismisses a case on grounds of 'public interest' and not rule of law is overstepping his authority. As broken as our patent system is, much worse is a judiciary which disregards the checks and balances established for it by our Constitution. Perhaps Apple and Motorola are being childish, but they are acting in a manner they believe benefits their stockholders the most within the confines of the law, which is the extent of the court's authority.

Granted, I havn't read the case materials, and the judge may have a more legitimate legal basis to cancel the jury trial.

Re:Judge is walking a thin line over a slippery sl (1)

Sique (173459) | more than 2 years ago | (#40409359)

Cases are dismissed on grounds of public interest all the time. Every judge is entitled to refuse to take a case or to later drop it he or she considers it contrary to the public interest to follow through. And of course every party involved can later file a complaint because of an unfair dismissal.

Re:Judge is walking a thin line over a slippery sl (4, Insightful)

Rogerborg (306625) | more than 2 years ago | (#40409543)

Remind me, who exactly is it that implements these most hallowed "checks" and "balances" to laws that take a huge steaming dump all over the Constitution?

Superman, right? That's who does it? Or Jesus. Or Super-Jesus-man?

A judge who interprets Article I, Section 8, Clause 8 literally, including the preamble which clearly explains its actual purpose and goal, is OK in my book.

Re:Judge is walking a thin line over a slippery sl (3, Insightful)

Rich0 (548339) | more than 2 years ago | (#40409821)

Yes and no. Judges ought to apply the law and constitution as they were intended to be applied. Whether this is 100% consistent with their wording is not as much of a concern for me.

It seems like the US legal system has become one big game, where people do stuff that clearly harms the public, with the only justification being "but I'm obligated to be selfish and the letter of the law lets me get away with it..."

The solution is to simply apply common sense. If somebody deducts $300M from their taxes because they bought a sewer system in France and leased it back to the municipality, then simply rule that they owe the taxes anyway plus penalties so that the company is out the penalties and whatever loss they incurred on sewer deal. If you quit letting people abuse loopholes they'll stop doing it. When they complain that the letter of the law allows it, the answer is "so what."

When my computer crashes because it blindly follows an algorithm that is imperfect, I'll accept that this is one of the limitations of computers that we accept because they're so much cheaper. When human beings behave in the same way, then I have to wonder why we bother to pay them...

Re:Judge is walking a thin line over a slippery sl (0)

Zero__Kelvin (151819) | more than 2 years ago | (#40409933)

The solution is to simply apply common sense."

The irony that you didn't apply common sense before you came up with that "solution" is precious!

Re:Judge is walking a thin line over a slippery sl (1)

Rich0 (548339) | more than 2 years ago | (#40412113)

Sure I did. If a kid behaved the way lawyers behave in court, their parents would simply smack them. Common sense prevails.

Re:Judge is walking a thin line over a slippery sl (2)

Idbar (1034346) | more than 2 years ago | (#40409887)

While public interest is greatly appealing to the masses. The summary says they cannot clearly prove losses... and checking the record profit apple has being setting... it may be right a good reason to hardly believing them all the losses they are running into due to Motorola.

To regulate commerce and to promote progress (1)

tepples (727027) | more than 2 years ago | (#40409889)

A judge who dismisses a case on grounds of 'public interest' and not rule of law is overstepping his authority.

I don't see any violation of rule of law here. The patent statute, 35 USC, must be interpreted consistently with the purposes expressed in the Constitution, which states: "The Congress shall have power [...] To regulate commerce [and] To promote the progress of science and useful arts". When companies seek injunctions against nearly the entire handheld computer market (that is, devices running iOS or Android), this promotes neither "commerce" nor "progress".

the checks and balances established for it by our Constitution

...include a judiciary to interpret statutes in light of the Constitution.

Re:Judge is walking a thin line over a slippery sl (1)

brokeninside (34168) | more than 2 years ago | (#40409941)

How can you seriously conclude that the judge is ``overstepping his authority'' if you `` havn't read the case materials''?

That's idiocy of the highest order.

In cases like this... (0)

Anonymous Coward | more than 2 years ago | (#40409019)

he should have banned all Apple and Motorola sales, while the case was pending, since Apple's case seems (like so many nowadays) frivolous. Or at least threatened to, and then asked if they really want him to settle it.

Kind of like ordering two mothers arguing over who's baby an infant is ordering the baby split in half, and divided equally between the parents, then awarding the child to whomever surrenders fastest.

That'd be fun to watch.

Re:In cases like this... (1)

shentino (1139071) | more than 2 years ago | (#40409121)

FEI, the reference is to Solomon.

Re:In cases like this... (1)

mwvdlee (775178) | more than 2 years ago | (#40409161)

I get the reference and your point, but...

then awarding the child to whomever surrenders fastest

This could lead to a lot of even more frivolous lawsuits where one party sues the other just to surrender as soon as it gets anywhere near an actual lawsuit, just to look like the good (least evil) party.

Public interest (2)

mwvdlee (775178) | more than 2 years ago | (#40409143)

an injunction against Motorola would be 'contrary to the public interest.'

Contrary to the what now?

Is that like corporate interest, but only for publically traded corporations?
Perhaps it's some archaic concept from a long lost civilization?
I don't think "public interest" really exists in our modern times.

Re:Public interest (0)

Anonymous Coward | more than 2 years ago | (#40410877)

No no no. Public interest is alive and well, there are lots of studies to create public interest, like if the wars going right now aren't enough and we want another someone needs to transcribe some public interest. Its like a currency in a way.

Prima cambiarono il giudice... (2)

SpaghettiPattern (609814) | more than 2 years ago | (#40409157)

...e subito dopo la legge.

To all conspiracy theorists, that was a quote from a song of some Italian dude on a judicial system. The full translated verse is "Listen, once a a judge like me judged the one who had dictated the Law. First they changed the judge and immediately after they changed the law."

Very 70s, very dark and in some instances very true. I for one remain curious to see if the savant will be sacrificed.

He DOESN'T "get the screwed up patent system" (0)

Anonymous Coward | more than 2 years ago | (#40409499)

If the system is screwed up, he should judge that those elements in the case that are the result of the scewed up system alone. NOT "do a Solomon" and pick a third option that is just as screwed up.

Socks != value of company (0)

Anonymous Coward | more than 2 years ago | (#40409551)

Its only the MBAs that equate stock price with a company's value.

If all the shares of Company X are worth $0 then the company proper is worth $0? No. Just that the gamblers cannot as easily play their shell game of swapping worthless pieces of paper (stock) for other, worthless pieces of paper (money).

Why MBAs' opinions matter (1)

tepples (727027) | more than 2 years ago | (#40410197)

Its only the MBAs that equate stock price with a company's value.

In the era of super PACs, MBAs also control who gets elected to U.S. office.

Making your job easier (1)

AdrianKemp (1988748) | more than 2 years ago | (#40409573)

Oh hell, if we can just tell everyone to "get along" instead of actually having trials, I'm becoming a fucking judge!

Regardless of how stupid a patent case is, it's the current law and deserves a trial. Period.

You wanna change the patent system? then fucking help change it. Don't ignore your responsibilities.

What are the legal teams financial incentives ...? (2)

PolygamousRanchKid (1290638) | more than 2 years ago | (#40409593)

They get paid billable hours for litigating. They get paid less for "getting along" with opposing legal teams. Going to war is more profitable for the legal teams of both sides. At least an army general may be reluctant to go to war, because he cares about the loss of life and morale of his soldiers. Lawyers don't suffer when they lose a case. They get paid more billable hours for an appeal.

"Contrary to the public interest" is not even a concern here. How do we change this? Well, maybe we need Congress to reform some laws . . . ?

. . . Oh, but what are their occupations, outside of Congress . . . they are all lawyers . . . ?

. . . Ok, I think I understand how the system works now . . .

Lawyers who win still have to work appeals (2)

tepples (727027) | more than 2 years ago | (#40410235)

Lawyers don't suffer when they lose a case.

Are you sure the hourly rate that the lawyer can charge doesn't suffer?

They get paid more billable hours for an appeal.

Lawyers who win get paid billable hours for an appeal too.

The real decision value proposition (0)

Anonymous Coward | more than 2 years ago | (#40409785)

So, here's the scoop.

As long as the corps threaten someone who doesn't make lots of $$, then it appears to be in the public interest to let the suit continue, so the dominant players can keep the status quo.

As soon as any player actualy threatens the livlihood of a major player, regardless of the worth of the suit, it cannot be good for "public interests" and must be quashed.

Sound about rignt?

He's an appellate judge. (4, Interesting)

GodInHell (258915) | more than 2 years ago | (#40409965)

This story really needs to mention that posner is actually an appellate judge sitting on the trial bench because we have too many open seats on the federal bench. Appellate judges are being forced to do double duty. Posner, as an appellate judge, is accustomed to commenting on and changing our interpretation of law. Dangerous man to pull for a trial judge.

Re:He's an appellate judge. (0)

Anonymous Coward | more than 2 years ago | (#40412999)

Posner has a reputation for commenting above and beyond the level of verbosity of a regular appellate judge. He also blogs, I think still teaches classes, and just generally writes prolifically as an academic. Since he apparently never sleeps, I think he's a great choice for trial duty.

Say what now? Motorola sued Apple on this (0)

Anonymous Coward | more than 2 years ago | (#40410237)

Seeing as Motorola sued Apple, it seems highly suspect to me that the Judge is making decisions while saying things like ( paraphrased ) "Banning Motorola devices would be devastating" . Well, no kidding.... when you swim in the ocean you might drown.
To be fair, he also called out Motorola on their ridiculous behavior on the FRAND arguments.

I don't think there's anything wrong with these lawsuits. If anything it's Motorola who is abusing the system by refusing to license FRAND patents for reasonable terms. Shame on Google for not forcing them to settle when they were bought out.

I don't want them to "play nice" (1)

JustAnotherIdiot (1980292) | more than 2 years ago | (#40411111)

I want them to battle it out, but not in court.
I want them both to go and try to make the very best phone they possibly can and fight for each and every consumer's pocket.
Oh, but that would require more money and effort than just throwing lawyers around, wouldn't it?

A judge who won't shut up and color? (0)

Anonymous Coward | more than 2 years ago | (#40412231)

This cannot stand!

Supremes will toss this ruling out (0)

Anonymous Coward | more than 2 years ago | (#40413187)

an injunction against Motorola would be 'contrary to the public interest.'

If and when this case reaches the Supreme Court, I'll be wagering the Supremes toss out the part about it being "contrary to the public interest." The deck is stacked against any person or judge who uses such a quaint anachronism in their legal reasoning.

Post the appointment of Chief Justice Roberts, the law is becoming more and more about protecting the private interests of large corporations. On that standard, the grounds for injunctive relief have nothing to do with consumer convenience or the public interest.

It will be interesting to see how this plays out over the long haul, if Posner doesn't force a settlement acceptable to Apple.

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