The Posner Effect On The Patent Gold Rush

by: Dana Blankenhorn

While awaiting the start of the big Apple (AAPL) vs. Samsung (F)">SSNLF.PK) patent trial it's important to note how the background has changed.

Several months ago there was an assumption that Apple was being "robbed" and could possibly throw its competitors out of the market. But since Richard Posner dismissed Apple's suit against Google there has been a recalibration:

Both Apple and Motorola are appealing Posner's ruling but Posner himself has doubled-down on his reasoning with an Atlantic article questioning the validity of all software patents.

Despite what paid experts like Florian Mueller may think about Posner (who like all judges is sometimes overruled) the Chicago-based jurist has a unique position in American law. Posner helped develop the "law and economics" theories that are at the heart of conservative jurisprudence today. He also has growing credibility on the left, thanks in part to his critique of the Citizens United decision.

Posner, in short, is a lawyer that other lawyers listen to, whatever their ideological views. His call for patent peace was powerful, and is gradually getting a global hearing. That call will not just be heard in courtrooms, but wherever legislation is crafted.

What does this mean for investors? Discount patents as an asset class, expect real competition in the market. This is good for large defendants in patent cases. It's good for Google, bad for Apple.

Disclosure: I am long AAPL, GOOG, MSFT.