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Apple-Motorola Judge Questions Need for Software Patents

Late last month, federal judge Richard Posner threw out one of the major U.S. cases in the ongoing patent battle between Apple and Motorola, and Reuters today publishes an interesting interview with Posner in which he discusses his view that patents have become too widely used and suggests that there may not be a need for software patents at all.

Noting his belief that software and other industries do not require the same level of patent protection as industries like pharmaceuticals where hundreds of millions of dollars are spent to develop a single protected product, Posner indicates individual software advances require much less economic investment and much of the benefit is gained simply by being first to market.
"It's not clear that we really need patents in most industries," he said.

Also, devices like smartphones have thousands of component features, and they all receive legal protection.

"You just have this proliferation of patents," Posner said. "It's a problem."
In Posner's ruling last month, he noted that Apple's patent on smooth operation of streaming video was in no way a monopoly on all streaming video and that barring an entire product over a single feature would be harmful to consumers. Posner also ruled against Motorola in its efforts to ban the iPhone over standards-essential patents that were to be licensed under fair, reasonable and non-discriminatory (FRAND) terms.

Apple is of course involved in intellectual property disputes with a number of companies, with the cases including both software patents and design rights. Just this week, a ban on U.S. sales of the Samsung Galaxy Tab 10.1 and Galaxy Nexus went into effect as Apple won preliminary injunctions, but the company also experienced setbacks in its battle with HTC in recent days. In those cases, both the U.S. International Trade Commission and a UK court ruled in HTC's favor, with the UK judge ruling that several of Apple's patents including one covering the "slide-to-unlock" feature are invalid in that country.

Top Rated Comments

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94 months ago

for those thinking

deregulate software sure...

patents are evil only big pharma can have them

no one dies if software messes up

unless your software is running;

bank transfers
airplane autopilots
missile defense systems
lazer satellites
drones flying over the usa
machines that go Ping!

I think you are confusing patents with safety regulations.
Rating: 39 Votes
94 months ago
Agree 100%
Rating: 33 Votes
94 months ago
At last someone speaking some sense.
Rating: 30 Votes
94 months ago

If we do away with Intellectual Property Patents i think we can agree that the motivation for innovation will be greatly hindered.

Not with software patents. Can you imagine the innovation that would have been lost if quicksort or merg sort was patented? Or if Oracle was able to patent 'rangeCheck'?
Rating: 14 Votes
94 months ago

Is it just me or is this judge straying into Judicial Activism with this kind of pontificating?

I mean the question at hand was not "Are intellectual patents a good idea in this industry or not?", but more like "Is this particular patent being infringed upon?".

If we do away with Intellectual Property Patents i think we can agree that the motivation for innovation will be greatly hindered.

There are a lot of people that think software code would be adequately protected by some sort of copyright rather than patent.
Rating: 11 Votes
94 months ago
They are killing progression in most software markets. The worst part is most people don't even know a patent exists until after they spend millions on development only to have it blocked in the end.

I can understand broad software ideas, but to put a patent on a sliding button, multi-touch etc.. is just too far reaching and only large companies can afford the patent attorneys.

They are not used for good in the software industry they are only used to harm.
Rating: 10 Votes
94 months ago

He's speaking sense. However, all it will mean is Apple will go to another state with a sympathetic judge next time around.

Of course that's true, but Posner is a respected and influential judge. Some good may come of this statement.
Rating: 9 Votes
94 months ago
Posner for president ;)
Rating: 9 Votes
94 months ago

I disagree with the judge wholeheartedly.

Protection of works should be allowed.

The judge has only shown he has probably never created anything new, interesting and highly original in his life.

Big Pharma might take years to develop a drug etc and then want to reap the rewards of it - but just because a good idea can come a long in a heartbeat - it doesn't mean that the person with the idea should have any less chance to reap the same awards.

These last few weeks of patent news have been incredible to watch - as a creative across range of media and industries I can tell you that when someone copies your ideas, steals your original work or tries to piggy back off things you have created - it only serves to devalue your original work, to water it down - you have less and less chance of reaping any sort of reward because you have nothing to be unique about and there is always someone willing to rip you off and do it virtually for free.

Protection of original work and ideas is necessary.

Very good post.

Unfortunately, this is where the confusion lies. I think we all agree that protection of original work is important (and this is what the copyright does). Imagine that you have invented a new, very confortable chair. This is your original work and its only fair that you profit from it. This is why the patent system was created in the first place.

But software patents and ideas are of a different kind. Software ideas are not products, they are highly abstract *methods* which can be used to create new products. Here, it is again important to differentiate. Some of these methods are highly specialized, say, speech recognition. If you write a software based on this method, you don't have to disclose the method itself. Also, one could argue that this specialized algorithm is your software/product and should be protected. But if your idea is very generic (say, a sorting algorithm or a patent like 'drawing an image on a screen'), its a whole different thing. You can't make a product solely out of this idea. You can use this idea to make new products or improve existing products, anyways - this is an idea everybody could profit from. Do you know how often I have been reinventing some sort of algorithms while programming? So its a bit absurd to say that someone 'owns' an idea like that.

That is my proposal, more or less: make products (or algorithm which define the products) protectable. But more general ideas, which can be applied in a whole range of products of different kinds, should not be patentable.
Rating: 9 Votes
94 months ago

Again, discussing the validity of a patent based on its summary or title isn't very productive. You have to read the specific patent claims. Apple didn't patent simply using a gesture to unlock a mobile device.

First off, Apple patented something that we longtime touch developers considered obvious: adding a visual cue to slide-to-unlock. Several judges worldwide have since agreed on the obviousness.

Second, they didn't reference a lot of prior patents that they could've.

Third, they kept adding ONTO the original patent using a practice called "double patenting", where the patent applicant continues a previous patent in order to take advantage of the earlier priority date so they can sue others.

Read this patent analysis ( M-CAM, which goes into details on the rejections that Apple kept trying to overcome, and how they eventually wore down the examiner.

Here's the original application (

Here's the first Patent: 7,657,849 (, which is still only about using a predefined path.

Here's the double dipping continuation filed in 2009: 8,046,721 ( adds on less strict ways of unlocking that might be familiar to Android users.
Rating: 7 Votes

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