Judge Richard Posner threw out Apple v. Motorola after expressing frustration with the behavior of the sparring litigants, and in a new op-ed for The Atlantic, he's broadened his distasteful gaze to the whole US patent system. Posner believes that patent law falls short in its broadly consistent application: he says that "with some exceptions, US patent law does not discriminate among types of inventions or particular industries. This is, or should be, the most controversial feature of that law." Posner says that there are too many patents in the US, and that industries with low costs of invention give competitors advantages for less than optimal reasons.

Posner cites the pharmaceutical industry as a "poster child" for patent system protection, because "the invention of a new drug tends to be extremely costly," among other reasons. On the other hand, he says that "few industries resemble pharmaceuticals" in cost of invention and other factors, and that "most industries could get along fine without patent protection" — specifically those with salaried engineers who make small improvements to products (like, say, mobile operating systems).

While Posner stops short of offering a single solution, he cites a few measures that could reduce problems like patent trolling and defensive patents: he says we could reduce patent terms for certain industries, implement compulsory licensing for patented inventions, and eliminate jury trials in patent cases. In any case, he says that "there appear to be serious problems with our patent system," and that "both the problems and possible solutions merit greater attention than they are receiving."