'Silly' Apple and Google

[Commentary] There were great expectations when technology giants Apple and Google squared off in court, each accusing the other of violating its patents in competing mobile phones. No one expected this case would end in a whimper, with one of the country's most influential judges dismissing the claims as "silly."

In the process, the judge, Richard Posner of the Seventh U.S. Circuit Court of Appeals, described a patent law system in "chaos" and needing basic reform. Judge Posner is also a University of Chicago law professor, author of some 40 books, and the most frequently cited living legal scholar, so his criticism carries considerable intellectual weight. At issue was Apple's effort to protect its iPhone against competition from Google's Android phones. Today's smartphones include some 250,000 claimed patents. The low bar for patents makes it impossible for any maker to avoid a claim for breach. Judge Posner, hearing this case as a trial judge, observed: "Patents in the field of information technology often have little if any value except defensively."

In bouncing this high-profile case, Judge Posner lays out a road map for Congress, patent regulators and other judges to re-establish the original purpose of intellectual property, which is to encourage both innovation and competition. If he succeeds, technologists at both Apple and Google should be delighted to have lost this case so they can go back to innovating instead of litigating.