Famous judge spikes Apple-Google case, calls patent system “dysfunctional”

They certainly play a role in governing, but where Contress is active (in theory), the Courts are reactive, waiting for a case to be brought to them. Where Congress is reaching for power and often places limitations on citizens, the Courts (in principle) ensure Congress does not claim too much power and limits Congress.

I really don't think they are doing that. They understand that for the normal purpose he's right, they are just talking about mathematics, or general cases. At this point it's removed from the original, they are no longer talking about him (the Judge) they are talking about the concept in general.

> I like to think of myself as intellectually inclined

and

> and there are instances where it's fun to think about

There you go. There is no rule that says you have to enjoy talking about the same things as someone else. Each person likes their own stuff.

The judge entered a tentative ruling saying that he was inclined to dismiss the entire case on the merits with prejudice (meaning, to kill all the claims in the case definitively so they could not be brought again by either party) on grounds that (a) neither party could prove actual damages on their claims, and (b) no good ground existed for the grant of an injunction.

These conclusions are well supported on technical grounds by existing law. A damage case can be tossed, once and for all, if a party is conclusively shown not to be able to prove damages, as happened here. And a judge can decline to impose an injunction where the costs of doing so would be far out of proportion to the benefit it gives to the harmed party, where the wrongdoing party is not gaining great benefit from the wrong committed, and where the public would be more damaged than helped by such a remedy.

What this really amounts to is a victory for common sense. Where patents involve essentially trivial rights (as often is the case with software patents especially), judges do not like to be used as tools to be manipulated in a broader commercial fight between litigants. In essence, this judge, looking at these facts, said "OK, kids, time to stop squabbling in the sandbox and go home." The lesson: pick your fights carefully and don't push claims that are essentially trivial.

Judges, good as they are, can only do so much in a system that is defined by constitutional authorization, congressional implementation, and a specialized court set up by Congress that has become cozy with the patent bar. That said, Judge Posner can hardly be accused of being a judge who doesn't respect property rights or IP rights generally and his voice will carry far more impact than most. It will be necessary to have respected voices in the legal community say, "enough is enough" many times over before Congress will listen. This act may not be enough but it is a great push in the right direction.

If we could clone Posner and put him in every state, this type of ridiculous patent litigation from IT companies would not be such a viable course of action.

Maybe it's not a question of what one justice can do, but a question of people taking a greater interest in their local and federal court systems. Are the courts in your state giving the go-ahead to frivolous patent proceedings from IT companies? Do you think that is a good thing? Is the time and expense for the courts to hear these cases warranted? Take an interest, as you did with SOPA. Imagine if there was a calling campaign to state bar associations instead of state politicians. Believe me, it would get noticed. Most people just do not care about this stuff enough to take an interest.

That said, there are a lot of people who support this patent trolling nonsense. It doesn't fly in Chicago, but it's par for the course in Washington and California. Good luck rallying the troops in those places. Many of them are part of patent trolling machine. It's what their employers and clients do.