An infinite loop is a tech term referring to a repeating sequence of instructions within a computer program. This phenomenon occurs when a terminating condition cannot be met, does not exist, or is programmed to repeat. The infinite code recycling paralyzes the program. Available processor capacity is diverted in an attempt to break the sequencing. The program freezes and shuts down, drowned by digital deja vu.
It just so happens that Infinite Loop is also the name of the street that wraps around Apple’s legal department in Cupertino, CA. In recent years, Apple — along with other tech giants like Motorola, Google, etc. – has seen a major increase in lawsuits over intellectual property rights. The need to obtain patents, either by filing with the USPTO or purchasing them from other owners, reflects the changing landscape of patent litigation.
Patents are no longer a protective license for innovation but rather something to hoard en masse in order to bludgeon competitors. The patents themselves are what’s important, not the ideas they protect. The average patent case costs about 3 million and can take 2 to 3 years to litigate. Federal District courts are clogged with frivolous lawsuits, straining resources for an already overburdened environment. The system feels like it is spiraling out of control.
Alas, hope may yet exist. Last week, in what might signal a turning point in patent litigation, Apple and Google suffered a stunning rebuke from Judge Richard Posner. Apple had filed suit against Google alleging multiple patent infringements. Apple (maker of the iPhone) has repeatedly sued Google (owner of Android mobile devices) over alleged patent infringement. To combat this, Google recently purchased Motorolla for $12.5 billion. The acquisition provided Google ownership of Motorolla’s extensive patent portfolio. Then Google filed a countersuit against Apple. Judge Posner heard both legal arguments and then threw the entire case out.
The decision is unique for two reasons. The first was the opinion itself. Posner gutted the parties’ legal arguments. At one point, Apple claimed that Google’s Android — which has a lock sequence that the user must tap to open — infringed on the iphone’s lock sequence which requires the user to swipe the lock. Apple contended that swiping and tapping were virtually the same, terming a tap as a “zero length swipe.” Posner dismissed Apple’s argument, calling it “silly,” and stating, “It’s like saying that a point is a zero length line.” He dismissed the case with prejudice meaning neither side can reopen arguments in the future.
The second reason this case is important is because of Judge Richard Posner himself. Posner is a giant in American jurisprudence. A graduate from Yale, Posner went on to become the top student at Harvard Law and president of its law review. Appointed to the 7th circuit court of appeals in 1981 by Ronald Reagan, Posner has established himself as an intellectual heavyweight. He is often credited with wedding the Chicago School of Economics — where he is a guest lecturer — to legal principles. He has authored over 40 nonfiction works covering a wide array of topics and has penned hundreds of opinions during his 31 year tenure on the 7th circuit. Simply put, when Posner speaks, people listen.
So it was worth noting that in the days following this decision, Posner sat down for an interview with Reuters to give his thoughts on current patent law. He explained that patents in the technology industry make little to no sense. Devices like the iPhone consist of hundreds of small innovations, many with their own patent. Does it make sense then to place an injunction on android phones because one or two of its component features infringe on the iPhone’s? Posner doesn’t think so. This permitted practice is contrary to public policy since it needlessly stifles competition in the marketplace. Despite the recent reform, Patent law is still out of sync with the innovation-heavy tech world.
Still, older approaches to patent laws remain entrenched in American courts. US District Court Judge Lucy Koh recently issued a preliminary injunction against Samsung that prevents the sale of their Galaxy Nexus phone in the United States. Apple successfully argued that the Nexus infringed on a unified search component of SIRI, the iPhone’s intelligent personal assistant program. In essence, a single patented aspect to a larger program that is one of many constructed for the iPhone will now completely halt all sales of the Galaxy Nexus in the United States for the duration of the trial.
The United States is at a crossroads with respect to patent law. Either we can follow Judge Posner’s recommendation and eliminate or dramatically reduce the existence of patents in the technology industry thus increasing competition in the marketplace. Or, the United States can continue to allow major corporations to stockpile patents, preventing true competition in the marketplace. Let us hope we choose the former.
- Judge Posner: Maybe There’s No Reason For Software Patents (forbes.com)
- Judge Who Tossed Out Apple/Motorola Lawsuit Says Tech Companies Are ‘Animals’ (AAPL, GOOG) (businessinsider.com)
- Apple’s patent absurdity exposed at last (guardian.co.uk)