Apple and Samsung Electronics won't stop feuding until American judges do. The iPhone maker is retrying a $1 billion patent win last year over its Korean rival because jurors misread the rules. No wonder they were confused: the top intellectual property court in the United States increasingly splits on even basic issues like what's patentable, new research shows. Clearer legal guidance could give smartphone peace a chance.
The Court of Appeals for the Federal Circuit was created in 1982 to goose a weak economy. The idea was that letting one court oversee patent law would produce consistent rulings and the legal certainty needed to invest in lucrative new technology.
The reality, however, is a bunch of squabbling jurists issuing unpredictable decisions. From 2004 to last September, the percentage of unanimous opinions from the court's three-judge panels dropped 20 points, according to a University of Iowa law school study. Judges were at times issuing more dissenting opinions than unanimous ones.
The disagreements have made patent law tough to navigate. In last year's smartphone trial, for instance, jurors muddled the legal distinction between Apple's lost profits and Samsung's illicit earnings and awarded Apple both. The double counting is one reason for the new trial.
Damage calculations befuddle judges, too. Esteemed federal jurist Richard Posner concluded last year that neither Apple nor Google's Motorola Mobility could prove any damages from alleged infringement of each other's patents. The surprising ruling is probably headed for reversal.
Now, the Supreme Court is being asked to sort out an embarrassingly fractured Federal Circuit decision in May on whether an abstract, computerised payment process can be patented. The appeals court's 10 judges ruled that it cannot - in six separate opinions, none garnering majority support.
The reason for the discord isn't clear. The study's authors speculate an influx of new judges and recent Supreme Court rulings reversing the lower court could have something to do with it. Patent law and innovation, however, suffer as a result. Conflicting decisions encourage the likes of Apple, Samsung and Microsoft to lob tenuous arguments at each other and see what sticks. The goal is to tie up rivals in court and extract costly settlements.
Federal judges could put an end to the legal bickering. But first they'll need to agree among themselves.
The Court of Appeals for the Federal Circuit was created in 1982 to goose a weak economy. The idea was that letting one court oversee patent law would produce consistent rulings and the legal certainty needed to invest in lucrative new technology.
The reality, however, is a bunch of squabbling jurists issuing unpredictable decisions. From 2004 to last September, the percentage of unanimous opinions from the court's three-judge panels dropped 20 points, according to a University of Iowa law school study. Judges were at times issuing more dissenting opinions than unanimous ones.
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Damage calculations befuddle judges, too. Esteemed federal jurist Richard Posner concluded last year that neither Apple nor Google's Motorola Mobility could prove any damages from alleged infringement of each other's patents. The surprising ruling is probably headed for reversal.
Now, the Supreme Court is being asked to sort out an embarrassingly fractured Federal Circuit decision in May on whether an abstract, computerised payment process can be patented. The appeals court's 10 judges ruled that it cannot - in six separate opinions, none garnering majority support.
The reason for the discord isn't clear. The study's authors speculate an influx of new judges and recent Supreme Court rulings reversing the lower court could have something to do with it. Patent law and innovation, however, suffer as a result. Conflicting decisions encourage the likes of Apple, Samsung and Microsoft to lob tenuous arguments at each other and see what sticks. The goal is to tie up rivals in court and extract costly settlements.
Federal judges could put an end to the legal bickering. But first they'll need to agree among themselves.