Saying that a trial between tech giants Apple and Google would “impose costs disproportionate to the harm… and be contrary to the public interest,” and that neither side could show how the alleged infringement on each other’s UI-based patents were harmful, Circuit Court Judge Richard Posner dismissed with prejudice the suit and countersuit between two of the biggest players in the smartphone market. And Posner isn’t just any judge. The Journal of Legal Studies named him the most cited legal scholar of the twentieth century.
Why should software developers care who owns the patents behind the applications we build? In this case, some of the questions included who owned the technique of unlocking your smartphone with a swipe of your finger and whether a tap of your finger could legally be considered a zero-length swipe. The questions can seem almost trivially silly and, for the most part, they are. But, the far more serious implication of them is that anybody should own anything as basic as a finger-swipe. If the courts had decided that Apple owned that gesture, no one else would be allowed to build software around it without paying Apple a fee.
The US patent system has always been a little broken, but software patents have become an absurd morass of suits and countersuits over every little details of software creation. And most of them are filed not by patent owners who have created something unique and innovative and want to reap the benefits of their hard work but by legal departments looking to hobble their competitors by any means available. The net result is that the future of software may well be decided by who can hire the best lawyers, not who can make the coolest stuff. Patents were once envisioned as a way to protect innovation and now threaten to crush it.
That’s why it’s so encouraging to hear Judge Posner, who has both the reputation to be taken seriously and the authority to put his legal opinions into effect say what many of us in the software industry have known for years: that the patent system is broken and becoming increasingly absurd.