There is growing evidence that the judicial system may be close to the end of its tether with frivolous and silly patent infringement lawsuits.
U.S. Circuit Judge Richard Posner said that he had tentatively decided to throw patent infringement allegations between Apple and Motorola out of court, since neither party could prove that they were harmed by the actions of the other.
Posner simply canceled a trial that was scheduled to begin next Monday because of this circumstance and said that his initial ruling from June 7 will be followed by a more elaborate ruling within a week. However, the judge kept the door for a trial open by stating that he is working on a full opinion and that he may change his mind. Given the strong language in this initial ruling, however, it seems rather likely that this will happen. Common sense rarely visits patent litigation proceedings these days, but this ruling surely is a breath of fresh air and hope for a patent system that could use additional consideration to prevent the exploits that have been flooding it.
Posner was even more expressive in a post on his personal blog, calling the patent system dysfunctional. In an article that discusses the state and needs of capitalism, he argues that "our capitalist system needs a lot of work to achieve proper capitalist goals." Among the current shortcomings, he mentioned "a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions."
Previously, Posner used rather simple, but effective language to call out exaggerated claims in patent infringements and appears to be focusing on actual harm being done. GigaOm quoted him saying during an Apple trial "Apple's .. argument is that 'a tap is a zero-length swipe.' That's silly. It's like saying that a point is a zero-length line." He attacked Motorola by stating that "Motorola's contention that the term has a 'plain and ordinary meaning' is ridiculous; Motorola seems to have forgotten that this is a jury trial." If Posner's argument can spark a trend, there may be hope that patent trolls building a business from buying old patents and claiming damage soon after acquiring them may see their opportunity to extort license fees dwindle.