Judge Posner on Smart Phone Patents

If a tree falls in the woods, but does no damage, should there be a lawsuit? This thought experiment is proposed by Berkeley law professor Peter Menell in a WSJ article that explains the thinking of Judge Richard Posner regarding the proliferation of smart phone patent lawsuits. I will admit to having been puzzled about these suits. I am a believer in protecting intellectual property rights, but it seemed that the protagonists were using the courts to gain competitive advantage they had not earned in the market place. What I did know, was that as a consumer, my choices were being constrained by injunctions over patents. Reading a little about Posner's thinking clarified the issue for me. Regarding all of the arcane claims in a suit between Apple and Google:

But Judge Posner boiled it down to a straightforward conclusion. In his opinion, he said the companies failed to marshal plausible experts and theories to calculate damages for alleged infringement, and in any event, companies shouldn't be able to win injunctions on patents involving technologies that have become part of an industry standard.

His harshest words perhaps were for Apple's claims that Motorola should pay it significant sums or should be banned from selling certain smartphones. "The notion that…minor-seeming infringements have cost Apple market share and consumer good will is implausible [and] has virtually no support in the record," he wrote.

. . .

Judge Posner is one of the founders of a school of thought that says that legal problems are often best understood when seen through the lens of economics. In this case, he questioned whether using the federal court and its resources to handle these types of disputes was economically efficient. That notion is woven throughout the opinion.

Sounds good to me. If Apple can keep Samsung tablets off the market through judicial fiat, how are consumers made better off? If Apple can't show harm, and its hard to believe they can, given the sales of iPads, then why are they in court?