11 July 2012

Mobile Patent Disputes Creating a New Class of ‘Celebrity Judge’

StarQuestion: What do Lucy Koh, William Alsup, Richard Posner, Annabelle Bennett and Colin Birss have in common?  Answer: They have all been receiving far more press coverage than they probably would ever have imagined when they chose a career in law!

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):
  1. 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;
  2. 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;
  3. 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;
  4. 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
  5. 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.
Of course, it is the role of a judge to hear cases and issue decisions in all matters, great and small, which may come before them.  But such is the level of interest and media attention to the global disputes currently playing out between tech giants, there has been virtually nothing of even minor note to have played out in these judges’ courtrooms that has not been widely reported.  With journalists stationed in the galleries listening to days of – mostly tedious – technical and legal testimony and argument, it is hardly surprising that anything remotely interesting, entertaining or quotable should be quickly disseminated, especially with most judges permitting (or at least tolerating) live tweeting from their courtrooms.


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.


In 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).


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.


By 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.


UK 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!


So, in conclusion, let us all raise our glasses to the new judicial celebrity class!  It is not clear that the spotlight is good for justice – she is, after all, meant to be blind – but it certainly helps to keep the audience interested.


A.Non said...

But what would Judge Judy say?

Patentology (Mark Summerfield) said...

She would tell them all to shut up and listen while she's talking!

Matthew said...

I'll take celebrity judges over mining magnates, reality TV stars and sports players any day.

Patentology (Mark Summerfield) said...

Agreed, though you may be setting the bar too low!

Harald Springorum said...

Of course you forgot judge Voss of the Mannheim District Court!

Harald Springorum said...

Of course you forgot judge Voss of the Mannheim District Court!

Patentology (Mark Summerfield) said...

Certainly Judge Voss' decisions have received plenty of coverage, particularly for their generally 'patentee-friendly' approach. However, I understand that this is largely a feature of the German approach, rather than a particular characteristic of Judge Voss himself.

However, the main reason Voss is not on this list is because I cannot read any of his decisions, or any other public comments he might make, in full and in the original German. I have not read any commentary, anywhere, about the German decisions that is not based on Florian Mueller's reports on his FOSS Patents blog. This lack of independent reporting is problematic, because Mueller is a blogger not a journalist, and I do not think that anyone really believes (or expects) that his opinions, and the choices he makes in reporting on European cases, are free from personal bias.

Take the 'media fail' challenge: search for 'voss mannheim patent', and try to find a news report in English which is not based on media releases from the parties to a case, or secondary sources which lead back to Mueller.

The lack of diversity in reporting on developments in the European cases is a little disturbing, especially since we know that Mueller provides paid consulting services to Microsoft and Oracle (amongst others). I do not doubt the sincerity of his claims that he does not censor his opinions based on his clients' interests. However, it is inconceivable that his views would not be influenced by his experiences working with his clients.

Furthermore, whatever he may say, Mueller has a fiduciary duty not to act in ways that are clearly adverse to his clients' interests, and he is surely also in possession of confidential information relating to his clients' businesses which he is bound to protect. These factors must inevitably influence his commentary. It seems, for example, that Mueller regularly receives inside information from 'sources' within the industry which he uses in his reporting. He cannot do this, however, if the information relates to a client.

Just to be clear, the position of Patentology is no different. Indeed, I have a duty to all of the clients of my employer, not just those that I have personally agreed to work for. Fortunately, however, I am not the English-speaking world's primary source of information on, well, anything really!

Stan E. Delo said...

Hi Mark-

A most interesting article, and perhaps a few perspectives
from an American Yankee for your and others' consideration might be a
bit useful. Here in the US, the Supreme Court doesn't seem to understand what it
is talking about, whereupon they ping pong their decisions back towards
the Federal District Courts in an adversarial manner many times. They seem to be
playing one-upmanship, to gain the Higher ground, while the inventors are seeing
their patent rights disappearing before their very eyes

The Federal District Courts here, much like the Supreme
Justices, mostly don't have a clue, so it is a bit like the blind leading the
blind in many cases. Add to that the America Invents Act, and you have real
recipe for squelching US innovation, which I very much object to. Near as I can
tell, Australian IP law seems to be pretty open, much like US patent law used to
be a while ago. It seems to diverge from it's perhaps British roots like US
patent law did back in the early 1800's, after us damn Yankees revolted and
kicked the Brits out of the US.

Us Yanks later came back to their aid though, before the
US had entered the War, with the Lend-Lease Act, which saved England's bacon
very definitely. Free airplanes and freighters and supplies that they could pay
for later at no interest. My father Ted ended up his stint in P-47 Thunderbolts
for 79 missions by chasing the Germans back into Germany, and walked away
without a scratch. He almost died about 8 times, but he never got


Patentology (Mark Summerfield) said...

Thanks for your perspective, Stan - on history, as well as the US court system.

We are fortunate in Australia that our Patents Act makes the Federal Court of Australia the court of first instance for all substantive patent disputes. This means that patent cases are heard by only a select few judges, who therefore develop a good level of understanding of the relevant law. Appeals from a single judge of the Federal Court go to a panel of three judges of the court, which would almost always include at least one of the more experienced patent judges.

Our High Court (equivalent to your Supreme Court) always includes a number of judges with a background in the Federal Court, so we tend to get good decisions at the top appellate level as well.

Incidentally, the British are the ones who diverged from us, when they threw in their lot with the Europeans in 1977. However, in a number of respects we will be taking a step back towards them, when the substantive provisions of the Raising the Bar reforms come into effect next year.

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