Yes, Richard Posner, the prolific and outspoken U.S. circuit court judge from Chicago, is a brilliant jurist, as Qualcomm General Counsel Donald Rosenberg notes in a letter to the New York Times. And frankly, Patent Truth thinks Joe Nocera – a Times columnist who recently wrote about Posner’s patent polemics – is one of the best business journalists in the country.
But both gentlemen have bought into academic claims that the patent system is a mess, an argument perpetuated by the largely headline-driven storyline known as the “smartphone wars.” Patent litigation among the biggest mobile-phone players has received a tremendous amount of attention because the companies involved have some of the biggest brands in the world and their products are in everyone’s pockets and purses. But the number of actual lawsuits taking place is paltry, a point Patent Truth will soon be making more concretely. Yet Nocera, without backing up the argument, parrots Posner’s assertion that innovation is being discouraged by a theoretical wave of patent-infringement cases and that the patent system should be overhauled. Again, he offers impressions rather than facts to make his argument.
Rosenberg handily sums up why Nocera and Posner are wrong:
Re "Innovation Nation at War," by Joe Nocera (column, Feb. 9):
Judge Richard A. Posner is a brilliant jurist, but I respectfully disagree with his view of our patent system. It is far from broken. It has been the key to multiple revolutions in technological advancement throughout history. And its vital function continues today.
Litigation costs are indeed in need of reform, but that is the case across the board in our litigious society. But patent litigation is declining as a percentage of issued patents. The so-called smartphone wars are a myth propagated by those with an economic interest in tipping the scale toward those who build on inventions versus those who invent.
Innovations in communications have dramatically changed our lives. Our patent system has played a critical role in attracting investment and protecting the fruits of these efforts. Let’s not overreact to a momentary uptick in commercial disputes as competitors seek to outmaneuver one another. If we do, we risk irreparable harm to our knowledge-based economy.
DONALD J. ROSENBERG
Executive Vice President and General Counsel, Qualcomm
San Diego, Feb. 11, 2013