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Posts Tagged: "Judge Posner"

Chief Judge Rader on the Supreme Court and Judge Posner

Rader: “I come from the commercial law area where to tell the CEO that “well I’m going to have to balance several factors and ask three courts over a period three years whether or not you can have this product enter the market” is simply an inadequate response. In the commercial area we have to have a predictable, yes or I will use the B word — a Bright line rule. Now, that’s lead to kind of this culture clash where the Supreme Court says there needs to be more balancing and flexibility. The formalism of the Federal Circuit is uncomfortable to [the Supreme Court]. But that’s a function of our legal culture. I think perhaps the answer is the Federal Circuit needs to gain a little bit more flexibility from its experience with the Supreme Court, but I hope the Supreme Court also recognizes that the Federal Circuit is reaching its decisions for well considered reasons.”

All In! Doubling Down on Erroneous Attacks on the Federal Circuit

In a recently published Forbes.com article titled”The Federal Circuit, Not the Supreme Court, Legalized Software Patents,” Lee doubled down with his absurd and provably incorrect assertions regarding the patentability of software patents. But he also more or less sheepishly admitted that his reading of the most relevant case is not one that is widely accepted as correct by anyone other than himself. He wrote: “To be clear, plenty of people disagree with me about how Diehr should be interpreted.” Thus, Lee admits that his primary assertion is one he created from whole cloth and contrary to the widely held views to the contrary. Of course, the fact that his radical views are in the minority was conveniently omitted from his ?Ars Technica? article. If Lee has any integrity he will issue a public apology to the Federal Circuit and issue a retraction. If Lee doesn’t come to his senses and do the right thing in the face of overwhelming evidence that he is wrong then Forbes.com and Ars Technica should step in and do what needs to be done.

Lies, Damn Lies and Media Hatred of Patents (and the CAFC)

Indeed, few articles have struck a nerve in me quite the way that a recent Ars Technica article did. The article is titled How a rogue appeals court wrecked the patent system??. It is a cheap shot, factually inaccurate and embarrassingly incorrect “news” story that concludes the Federal Circuit is at the heart of all the problems in the patent system. A real Pinocchio tale. Ars Technica? should be ashamed at having published such an inaccurate attack piece. If they are not going to properly vet articles in advance of publication then what have they become? Little more than an online technology specific version of those tabloids with the salacious headings. The patent system is far to important to the U.S. economy and our way of life to suffer from that level of journalistic ignorance and bias.

California Dreaming and the Preposterous Posner Decision

How anyone with even the most fundamental understand of property rights and economics could say that infringing a patent does not result in a tangible injury is beyond me. Is he unfamiliar with the concept and real world practice of licensing patents? With all due respect to Judge Posner, a right without the ability to obtain recourse for its trampling is no right at all. His analysis is wrong and frankly rather amateurish. It carries the stench of a anti-patent ideologue who doesn’t understand the most fundamental principles associated with legitimate, arms-length negotiations that result in a transfer of rights. Judge Posner’s damage analysis has to be a dream come true for those who use the bullying tactic of efficient infringement to make the business decision to trample rights rather than legitimately acquire them.

Apple v. Motorola: Analyzing Judge Posner’s Decision

J. Posner also brought the value of the patents declared to be essential under standards bodies to bear on the damages question.  Essential patents must be evaluated for absolute value and relative value to the full-declared portfolio.  These values are needed where a non-linear function is proposed for a royalty determination based on infringement of a subset of the declared patents.  The difficulty presented by an assertion of a single essential patent from a much larger portfolio is “that if [the potential licensee] had wanted to license any of the patents in [the standard’s essential portfolio], the license fee would have exceeded the product of the percentage of the portfolio represented by the patent and the value of the entire portfolio.”  Objective data to present a non-linear function was needed, and even where presented, the notion of a FRAND royalty applied to “confine the patentee’s royalty demand to the value conferred by the patent itself as distinct from the additional value – the hold-up value – conferred by the patent’s being designated as standards essential.”

Ordinary Plain Meaning: Defining Terms in a Patent Application

The question of whether a term is defined adequately is really a legal question, so the views and opinions of those who are not well versed in the law are hardly probative. Inventors invent and patent attorneys describe those inventions to satisfy the legal requirements. If inventors could describe their inventions to meet the legal requirements they wouldn’t need patent attorneys, but we all know that inventors who represent themselves make numerous errors and always obtain far more narrow protection than they would have been entitled to receive. They just don’t understand the law well enough and are not qualified to offer opinions on matters of law.