Judge Posner on Patents

4 thoughts on “Judge Posner on Patents”

1. 4

   David, even under eBay, Apple should have had a right to an injunction. My note laid out the conventional requirements for an injunction and under those, Apple should have gotten one. It was harmed, the harm was ongoing and there was no adequate legal remedy.

   The case may have been different had Apple instead did not use its patents to provide market exclusivity for its products, but instead licensed them to all comers for defined royalties. Then the legal remedy may have been adequate.

   Apple v. Motorola was wrong.

   I wonder if Apple appealed?
2. 3

   That gets into a really fun issue — whether eBay was right. I’ve co-authored a Property book and taught it a few times, and every time I teach eBay in patent law, my head spins, in part for the reasons you mention.
3. 2

   I still cannot get over Posner’s denial of an injunction to Apple (v. Motorola) based on the lack of proof of damages, which was in turn based on fact of purported ease of substitution of non infringing products because Apple’s patents were software patents.

   As I discussed elsewhere, the ease of substitution shows that there is no substantial harm to the enjoined party. And, just because the amount of damages are not proved should not lead one to deny an injunction. After all, a patent owner has a right to pursue an equitable remedy to the exclusion of a legal remedy. All one would have to show to obtain an injunction (infringement being proved and the public interest factors favoring an injunction) then is that harm is real, ongoing, and not subject to an adequate legal remedy I think Apple could have proven this.
4. 1

   No need to apologize. After all (as someone else once mentioned), the patent office is located in the Department of Commerce)…

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