Growing up in Germany I learned a lot about a legal system in which judges are only applying the law not also making it through their decisions. Precedent plays a very limited roll in the German system. It took me some time to come to grips with the US system. But now I have come to think that an independent judiciary that has the ability to influence the law through precedent is a wonderful balance to the executive and legislative branches. In this 4th of July week this is another independence that’s worth celebrating!
It’s been great to see independent judges at work with regard to patents in the Oracle versus Google case and now the Apple versus Motorola (now also Google) case. Even better is to read that Judge Posner is fundamentally questioning the need for patents in many industries. This is very encouraging. We have to keep in mind why patent legislation was created in the first place: as a way to encourage innovation at a time and in circumstances when the cost of innovation was high. This is essentially a way to solve a market failure. But we don’t have an issue of “under innovation” in software. With open source and the web we have found other ways to provide incentives for software innovation. And now we need to weigh the consumer cost much more heavily. That’s exactly what Posner is calling for.