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Judge lashes out against overuse of patent protections

Judge Richard Posner, who threw out the Apple-Motorola lawsuit, writes a blog post disparaging companies' "excessive" use of copyright and patent protections.

Months after dismissing the Apple-Motorola lawsuit, Judge Richard Posner still hasn't lightened his stance on the state of the U.S. patent system. The Court of Appeals judge took to his blog yesterday to criticize the explosion of patent and copyright protections.

"I am concerned that both patent and copyright protection, though particularly the former, may be excessive," Posner wrote.

The two greatest culprits, in his opinion, are the pharmaceutical and software industries. For the software industry, he wrote that the difficulty of patenting tech devices is that they are made up of thousands of different components, all of which are patentable. Having these "huge patent thickets" makes it easier for companies to both protect patents and then sue any supposed infringers, he said.

Here's more from Posner's blog:

Software innovation tends to be piecemeal--not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement--and also for infringing, and then challenging the validity of the patent when the patentee sues you.

Posner also points out that it's difficult for judges and jurors to accurately decide whether certain software or hardware has been infringed upon because these people usually lack specific technical knowledge.

Lambasting companies for excessive patents is nothing new for Posner. Even before he canceled Apple's patent infringement jury trial against Google's Motorola Mobility in June, he criticized Apple for filing "frivolous" motions and ridiculed Motorola's claim constructions in the case. Then, once the case was dismissed, he wrote an op-ed for The Atlantic titled, "Why There Are Too Many Patents in America," which pointed to what he believed to be "serious problems" in the patent system.

In yesterday's blog post, he echoes much of this same sentiment. "My general sense, however, bolstered by an extensive academic literature, is that patent protection is on the whole excessive and that major reforms are necessary."