Even judges are fed up with patent lawsuits

commentary We need more judges like U.S. Circuit Court Judge Richard Posner.

Yesterday, Posner scrapped a trial between Apple and Google's Motorola Mobility slated to start in Chicago next week after he rejected the arguments for damages because neither side was able to prove it was harmed.

The move is a welcome breath of practicality in this increasingly muddled and litigious world of technology patent warfare. Beyond competing in the market, technology players have moved to the courtroom as a second front, using patents to distract competitors and even ban products from coming into the country.

While these companies see some strategic or monetary gain to be had by this, virtually everyone else loses. Public resources are drained every time these companies go to trial. Consumers risk losing access to hot, new products, as illustrated by the temporary ban on HTC's One X for AT&T and Evo 4G LTE for Sprint Nextel. Apple wants a similar ban on Samsung Electronics' Galaxy S III. Rather than focus on the task of building cooler products, companies get distracted with the litigation.

So it's refreshing that more judges are taking action to throw out cases, streamline the lawsuits, and even order both sides to hash out their differences. I applaud the move and can only hope this is the beginning of a trend.

Posner had been particularly aggressive in making the Apple-Motorola battle in his court more manageable.

"Judge Posner has repeatedly urged the parties to 'winnow' the case and did most of the winnowing himself by throwing out claim and claim, argument after argument," said Florian Mueller, who runs legal blog Foss Patents and is a consultant who has done work for companies such as Microsoft and Oracle.

He's not the only one. In Germany, Judge Andreas Voss of the Mannheim Regional Court has thrown out two lawsuits between Apple and Samsung Electronics. Samsung said it would appeal the decision.

U.S. District Judge Lucy Koh, based in California, ordered the CEOs of Apple and Samsung to meet face to face and work out a deal. Even if it was ultimately fruitless, you have to respect her attempt to settle such a complicated mess. She also ordered the companies to reduce the size of the case to make it more manageable for a jury to decide. Apple and Samsung each dropped a number of patent complaints as a result of the order.

Strategically, the various technology companies want to file as many lawsuits as they can around the world, all in an effort to get the key victory that successfully bars a competitor's product from a major market. The belief is that the threat of a lasting ban will bring together two parties to the negotiating table. No permanent ban has ever been enforced on a technology company; the bickering parties always strike a settlement before it comes to that.

The litigation will continue to roll on. While Posner's decision scrapped the planned jury trial, the lawsuit will continue to move forward as the companies seek to obtain an injunction on the other's products. Likewise, you can expect the Apples and Samsungs of the world to continue to press for more complaints whenever there's an opening.

That's why it's important that judges remain aggressive in their willingness to throw out extraneous complaints. I'm sure you're as tired of reading lawsuit stories as I am of writing them.