Epstein Critiques Posner's Decision in Apple v. Motorola

Richard Posner Gets It Wrong

President Barack Obama has encountered a torrent of opposition for his use of what the Wall Street Journal’s Kimberly Strassel shrewdly described as Four Little Words: “You didn’t build that.” The President used these words to show that private success rests on public infrastructure. But in so doing, he slighted the importance of private initiative and innovation. The pushback has been enormous.

Right now, the patent system is also under major attack from a large number of scholars and judges who think that the way to industrial progress lies through an expanded public domain. The collective war cry here is not, at least for the moment, “You didn’t invent that.” Nonetheless, the clear thrust of the current anti-patent fervor is that, all too often, innovators do not receive sufficient legal protection for their patents even when they did invent them. We need some pushback against this overwrought position.

The anti-patent sentiment has just been fueled by a remarkable opinion by Judge Richard Posner, my long-time colleague at the University of Chicago, sitting as a trial judge in the major case, Apple v. Motorola. The high-profile case concerns five patents—four by Apple and one by Motorola—that are involved in mobile phone technology, and it has drawn more than its fair share of attention. Judge Posner took the extraordinary step of dismissing the claims of both sides with prejudice—meaning, the case cannot be filed again elsewhere—on the grounds that neither side could make good on its argument for either damages or injunctions.

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