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Thursday, July 05, 2012, 07:27 am PT (10:27 am ET)

Judge who tossed Apple-Motorola suit questions need for software patents

Judge Richard Posner, who recently dismissed Apple's patent infringement case against Motorola, believes the smartphone industry is plagued by a "proliferation of patents."

Posner, who is on the 7th U.S. Circuit Court of Appeals in Chicago, spoke with Reuters and shared his thoughts on the intellectual property war currently underway in the heavily competitive smartphone market. The judge questioned whether software patents are necessary, because developing software requires much less of an investment than pharmaceutical companies have in creating a successful drug.

"It's not clear that we really need patents in most industries," Posner said.

The 73-year-old judge volunteered to oversee the Apple-Motorola case. When the trial began, he used a court-issued BlackBerry, but he eventually switched to an Apple iPhone that he only uses for e-mail and phone calls to his wife.

As Apple and Motorola argued in court, Posner was an outspoken critic of Apple's tactics. In May, he accused Apple's lawyers of making "frivolous" and "untimely" filings.

Posner said he was actually looking forward to overseeing the case between Apple and Motorola, but he couldn't have a trial "just for fun," and he felt he had no choice but to toss out the lawsuit. Last month, the two-year conflict was brought to an end by Posner, who also ruled that Motorola could not seek an injunction against the iPhone because it had pledged to license its own patents to other companies under fair and reasonable terms.

Posner

Judge Richard A. Posner, via Wikipedia.


Posner is the most-cited U.S. legal scholar of the 20th century, according to intellectual property expert Florian Mueller of FOSS Patents. He said the appeals judge is also well known for being "outspoken."

Posner said he understands why technology companies, particularly those who make smartphones, have turned to litigation in an attempt to gain an edge over their competitors. Even the high legal fees are a "small expense" for a company like Apple, which had $110 billion in cash and securities as of the end of the March quarter.

"It's a constant struggle for survival," Posner told Reuters. "As in any jungle, the animals will use all the means at their disposal."

With the Apple-Motorola case in Chicago tossed, the next big courtroom showdown in the smartphone patent wars will be the trial between Apple and Samsung. This week, those two companies pared down their patent infringement claims against one another in preparation for the start of their trial in California on July 30.