Judge Posner is indeed a brilliant and highly-respected jurist and his views on our problematic patent system will undoubtedly resonate and help the cause of reform. In his courtroom role as such, though, he can have only limited impact on the broader patent debate.
The judge entered a tentative ruling saying that he was inclined to dismiss the entire case on the merits with prejudice (meaning, to kill all the claims in the case definitively so they could not be brought again by either party) on grounds that (a) neither party could prove actual damages on their claims, and (b) no good ground existed for the grant of an injunction.
These conclusions are well supported on technical grounds by existing law. A damage case can be tossed, once and for all, if a party is conclusively shown not to be able to prove damages, as happened here. And a judge can decline to impose an injunction where the costs of doing so would be far out of proportion to the benefit it gives to the harmed party, where the wrongdoing party is not gaining great benefit from the wrong committed, and where the public would be more damaged than helped by such a remedy.
What this really amounts to is a victory for common sense. Where patents involve essentially trivial rights (as often is the case with software patents especially), judges do not like to be used as tools to be manipulated in a broader commercial fight between litigants. In essence, this judge, looking at these facts, said "OK, kids, time to stop squabbling in the sandbox and go home." The lesson: pick your fights carefully and don't push claims that are essentially trivial.
Judges, good as they are, can only do so much in a system that is defined by constitutional authorization, congressional implementation, and a specialized court set up by Congress that has become cozy with the patent bar. That said, Judge Posner can hardly be accused of being a judge who doesn't respect property rights or IP rights generally and his voice will carry far more impact than most. It will be necessary to have respected voices in the legal community say, "enough is enough" many times over before Congress will listen. This act may not be enough but it is a great push in the right direction.
"OK, kids, time to stop squabbling in the sandbox and go home."
The problem is that these kids have weekly allowances in the hundreds of thousands. And most lawyers do not discriminate among potential clients by maturity level, they discriminate by net worth. They are happy to become instruments of a sandbox squabble, for a price. The kids don't do the squabbling. They pay lawyers to do it for them.
"OK, kids, time to stop squabbling in the sandbox and go home."
I could say the same for our judicial system up until now. Slam them all day if you'd like (referring to the judge), but all the patent troll rulings up to this point has precipitated this state of affairs.
The judge entered a tentative ruling saying that he was inclined to dismiss the entire case on the merits with prejudice (meaning, to kill all the claims in the case definitively so they could not be brought again by either party) on grounds that (a) neither party could prove actual damages on their claims, and (b) no good ground existed for the grant of an injunction.
These conclusions are well supported on technical grounds by existing law. A damage case can be tossed, once and for all, if a party is conclusively shown not to be able to prove damages, as happened here. And a judge can decline to impose an injunction where the costs of doing so would be far out of proportion to the benefit it gives to the harmed party, where the wrongdoing party is not gaining great benefit from the wrong committed, and where the public would be more damaged than helped by such a remedy.
What this really amounts to is a victory for common sense. Where patents involve essentially trivial rights (as often is the case with software patents especially), judges do not like to be used as tools to be manipulated in a broader commercial fight between litigants. In essence, this judge, looking at these facts, said "OK, kids, time to stop squabbling in the sandbox and go home." The lesson: pick your fights carefully and don't push claims that are essentially trivial.
Judges, good as they are, can only do so much in a system that is defined by constitutional authorization, congressional implementation, and a specialized court set up by Congress that has become cozy with the patent bar. That said, Judge Posner can hardly be accused of being a judge who doesn't respect property rights or IP rights generally and his voice will carry far more impact than most. It will be necessary to have respected voices in the legal community say, "enough is enough" many times over before Congress will listen. This act may not be enough but it is a great push in the right direction.