In case you are not familiar with these names (although most readers of this blog would most likely have heard of at least one of them):
- Judge Lucy H Koh is the judge of the US District Court for the Northern District of California, San Jose, who is presiding over the patent dispute between Apple and Samsung in that court, and who recently issued preliminary injunctions against Samsung’s Galaxy Nexus and Galaxy Tab 10.1 devices;
- Judge William Alsup is the judge of the US District Court for the Northern District of California, San Francisco, who presided over the case brought by Oracle against Google, finding that Google’s Android operating system does not infringe Oracle’s Java patents and copyrights;
- Judge Richard Posner is an appellate judge in the 7th Circuit who volunteered to step down into the US District Court for the Northern District of Illinois to hear patent infringement cases brought by Motorola and Apple against one another, only to toss the entire dispute out on the basis that neither party had any viable claim for damages against the other;
- Justice Annabelle Bennett is the Australian Federal Court judge who last year issued a preliminary injunction delaying the launch of Samsung’s Galaxy Tab 10.1 tablet for five months, until her decision was overturned on appeal; and
- Judge Colin Birss is the UK Patents Court judge who this week ruled that Samsung’s Galaxy Tab 10.1 does not infringe registered design rights owned by Apple relating to the iPad.
ONE OF THESE THINGS IS NOT LIKE THE OTHER…For example, Judge Koh caused a stir last October when it was reported that she had held up two black tablets in court, and asked Samsung attorney Kathleen Sullivan whether she could identify which was Apple’s iPad and which was Samsung’s Galaxy Tab 10.1. Sullivan’s answer – ‘not at this distance your honour’ – was widely regarded as a damning indictment, notwithstanding that the ability of a lawyer to distinguish between two products across a courtroom is completely irrelevant to the legal questions of infringement actually before the court. ‘Can any of Samsung's lawyers tell me which one is Samsung and which one is Apple?’ continued Judge Koh, until one of the attorneys supplied the right answer.
If either of the litigants’ lawyers had done something similar in court, it would have been rightly regarded as a ‘stunt’, with no legal bearing on the outcome.
CUTTING CODEIn May, Judge Alsup caused excitement among programmers the world over when Wired reported his revelation in court that he was a bit handy with the code himself, having taught himself Java for the trial between Oracle and Google. There was much speculation about which other programming languages he might know (we are betting BASIC is on the list), and great praise for a judge who actually knew something about the technical issues before him.
Between the lines, of course, is the assumption that most judges are ignorant of technology, and the ‘real world’ generally, which is a grave misconception (as the journalists who have been sitting through these hearings would be well aware).
JUDICIAL ACTIVIST?While most judges are inclined to keep their own counsel outside the courtroom, Judge Posner is no shrinking violet. The 73 year-old conservative judge, who was appointed as a federal appeals court judge by Ronald Reagan in 1981, won a few fans on both sides of the political fence when he recently told Reuters that ‘it's not clear that we really need patents in most industries’, further noting that when mobile devices have thousands of component features ‘you just have this proliferation of patents. It's a problem.’
Of course Judge Posner is entitled to his opinion, but as someone who sits on the bench and not in the trenches, it is not at all clear that his views on the relative merits of the patent system as a driver of innovation, or a tool of economic policy, are more authoritative than anyone else’s. Yet, because of who he is, these few comments have been widely picked up as further powerful evidence of the ‘broken’ state of the patent system.
One thing is certain – Judge Posner’s views are not shared by the US Congress (which makes the laws that he is sworn to adjudicate) as demonstrated by last year’s strong bipartisan support for the America Invents patent reforms.
SWIFT JUSTICEBy comparison with her US counterparts, Australian Federal Court judge Annabelle Bennett has been relatively restrained in her courtroom antics and public comments, although this has not prevented her from receiving ample media coverage (as a Google search for ‘annabelle bennett apple samsung’ demonstrates). She has revealed, however, that she owns an iPad. But – lest she be accused of bias – she also apparently has a Samsung smartphone.
Justice Bennett’s real stamp on the Australian dispute between Apple and Samsung has been in her management of the case, particularly her efforts to accelerate the proceedings. Having pressed the parties to pare back their cases, to enable an early final hearing of the dispute, Samsung’s apparent reluctance to do so became a decisive factor in Justice Bennett’s decision to issue a preliminary injunction against the Galaxy Tab 10.1. Unfortunately for her, this was also one of the main points on which the appeals court ruled that she had erred, leading to her decision being overturned.
FASHIONISTAUK judge Colin Birss is the latest entrant into the pantheon of judicial media stars. Following his ruling in Apple’s design infringement case against Samsung on 9 July 2012, he has the distinction of being the first judge anywhere in the world to issue a decision in an Apple/Samsung dispute after a full hearing on the merits (the other decisions issued so far have all been interim rulings, pending a full trial).
And it is fair to say that Judge Birss did not waste the opportunity to ensure that his decision would be noticed, and widely quoted not only in the legal and technical press, but also in the mainstream media. For it is thanks to Colin Birss that something many have long suspected is now an established legal fact: the Apple iPad is ‘cool’; and the Samsung Galaxy Tab 10.1, being ‘not as cool’, does not infringe Apple’s registered designs.
We have to say that we are mightily impressed with a judge who can issue a highly-detailed, 191 paragraph decision, while deftly throwing in a summarising sound-bite which is guaranteed to go viral on Twitter!