As much as I love seeing some straight talk on the patent issue, it seems dangerous for a judge to have the appearance of injecting his opinions about what laws ought to be into the judicial process. He specifically requested to be put on a high-stakes patent case, then immediately threw the case out and started making public and vocal arguments against patents in tech?
I'd love to see him be our champion for sanity for this system (since our squabbling legislature can barely keep us from defaulting on our debt, let alone tackle patent reform), but this just seems to draw a huge target on his back for complaints of "judicial activism."
Here's a list of what compels people to complain of judicial activism:
1. They disagree with a court decision.
I don't think it makes a measurable difference whether he draws a huge target on his back or not.
I would hope as a professional judge he would have a strong interest in law. Naturally he'll have opinions about it, whether he talks to the press after the case is over or not. So long as the written court opinion cites the law as it is now, I actually like having personal opinion added later.
Professionally, judges have to think about what harms people and what serves their interests. There's no way a human judge could avoid having this spill over into thinking how laws harm people and serve their interests.
Keep in mind that patentability of software is not something that was ever explicitly laid down in law by Congress. Rather, it came from a combination of the Patent Office deciding to issue them and courts issuing opinions on whether existing law allowed it. Absent changes to the law from Congress, the Patent Office and the courts can just as easily change their minds about how to interpret the law.
Laws aren't god given. They are to be interpreted or even ignored by anyone who finds themselves in the legal system. Thats why jury nullification exists, and thats why judges have jobs. At the end of the day it's just humans making decisions about other humans and if your firm belief is not in line with the law you have the opportunity to express that.
Jury nullification Yes (its a form of direct democracy). Judges making up the law No (its an undemocratic attack on the rule of law). Interpretation of ambiguities is one thing but just ignoring parts is not OK. It would leave everyone with no rules to follow just different judges with different views to persuade in each case.
If there is a real disagreement between law and what the judge thinks is right they should rule in favour of the law (but grant sanctions etc. as close to just as possible). He/she can then publicly complain about the law or run for congress to change it.
Please note that I am in favour of what the Judge has said but think that if his ruling stands it is a big change in the law and it is the wrong way to do that.
I'm not American and although I've just read the Wikipedia article on that case I don't think I fully understand it or it's relevance as it seems only to apply when they conflict with the constitution which I don't believe is the case here and is a different matter entirely in my view.
If party A has a valid patent party B must license or work around. I don't understand why it would be just for party A to have to prove actual damages. That they have been denied license fees OR elected not to license to retain exclusivity is surely evidence it self of damage.
Had the judge taken one look at the patents and declared them obvious and lacking novelty And given the Patent Office an earful I would fully have approved but to me he seems to have said even valid patents are only enforceable in limited conditions which should be set out in law.
I'd love to see him be our champion for sanity for this system (since our squabbling legislature can barely keep us from defaulting on our debt, let alone tackle patent reform), but this just seems to draw a huge target on his back for complaints of "judicial activism."