As I’ve discussed at length before, patent infringement litigation is both hot and controversial these days, and no realm of patent infringement is as hotly contested as the smartphone world. PCMag and have both put together impressive infographics portraying the convoluted battleground.

The three most interesting fights this year have been Oracle v. Google, Apple v. Motorola Mobility, and Apple v. Samsung, each of which has produced their own drama, drama that may foreshadow increased involvement by the courts (other than the Federal Circuit Court of Appeals) in reshaping the landscape of patent law. Lacking any useful reform on the horizon, the courts are taking matters into their own hands.

The Oracle v. Google trial ended not with a bang but a whimper: a jury rejected the patent infringement claim, and then Judge William Alsup knocked out Oracle’s claim to copyright not just the programming code, but the actual structure of how the code is put together: “So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API.” Oracle accepted $0 in damages to get moving on an appeal — and then came the fireworks this week, with Judge Alsup suddenly ordering both companies disclose any “authors, journalists, commentators or bloggers” they paid to comment on the case.

The Apple v. Motorola Mobility (which Google bought) trial ended much more spectacularly with Judge Posner (normally of the Seventh Circuit, presiding over the trial by designation), who has been quite vocal about the problems with our patent system both before and after the case, dismissing the entire case for “a simple failure of proof” of monetary damages or of entitlement to an injunction. The opinion is (of course) on appeal before the Federal Circuit. Richard Epstein has been harshly critical of the opinion, disingenuously arguing that the same layperson juries he thinks can’t understand medical malpractice should be trusted with evaluating the reasonable royalty to be paid for the programming code that runs smartphones even in the absence of competent expert testimony.

The Apple v. Samsung trial is going on right now (it seems CNET puts up another post every few hours), but it has already produced a fascinating, if a bit disturbing, exchange in which Judge Koh repeatedly denied Samsung’s efforts to introduce evidence showing that certain Samsung designs predated the iPhone. Samsung took the issue to the press, releasing the slides they wanted to show the jury during opening statements — incurring Judge Koh’s wrath and a sanctions motion from Apple, and necessitating an affidavit from Samsung attorney John Quinn explaining how the information was released.

Let’s put aside, for the moment, the technical details of these cases and the specific legal issues involved, and instead focus on the role of litigants and courts in shaping the public debate over patent law, particularly with regard to software patents. All of these judges are off the reservation — and that might be a good thing.

Although now many people accept it as sacrosanct that a judge will act like an umpire, maintaining the façade of having no opinions whatsoever about what the law should be, that tradition isn’t nearly as ancient as people believe. The 1924 Canons of Judicial Ethics focused on ensuring the judge’s decisions were impartial (as in, not biased in favor of one party or another), but didn’t say anything at all about what a judge might say to the public about the law, or what role the judge should take in controlling public perception of a case. Canon 23 even mildly encouraged judges to speak up about problems in the law:

A judge has exceptional opportunity to observe the operation of statutes, especially those relating to practice, and to ascertain whether they tend to impede the just disposition of controversies; and he may well contribute to the public interest by advising those having authority to remedy defects of procedure, of the result of his observation and experience.

That changed in 1972, with the new ABA Code of Judicial Conduct saying “A judge should abstain from public comment about a pending or impending proceeding in any court,” and then again in 1990:

(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.
(B)  A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.

The general rule now is that judges should be seen but not heard, and woe be onto the judge who strays from calling balls and strikes on the field and starts asking about the merits of the designated hitter rule. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir. 2001) (“Judges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the media.”); see also Harrison, Mark I. and Swisher, Keith, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct (2009).

Frankly, I think that virtual code of silence — no statements that someone else might “expect” would affect a case, and no “commitments” on issues that could come before the court — is more of a hindrance than a help. The ABA had it right in the 1920s: sure, a judge shouldn’t hold a press conference in the middle of a trial to comment on the merits of either side’s claims or defenses, but the idea that judges are wholly impartial about what the law should be is a dangerous farce.

In theory, written judicial opinions are supposed to serve the democratic role of explaining to the public how and why the judge reached a particular decision the case, but written opinions have their own limitations. As an institutional matter they are inevitably advocacy pieces in favor of the court’s decision, because they written as a means of justifying the judge’s decision to an appellate court, and yet they rarely provide any opportunity for a court to opine in favor of changing the law on a particular legal issue.

That’s why I am glad to see Judge Posner be so outspoken on the issue of patents, particular software patents, even as he oversaw at trial and eventually ruled upon some of the same issues. But that’s not the end of the story; Judge Alsup’s and Judge Koh’s forays into the public statements of the litigants appearing before them also implicate basic issues of judicial communication with the public. In both cases, at first blush it appears the judges are trying to control the litigants’ public relations efforts, but there’s a critical difference.

As I mentioned on Google Plus when Judge Koh first lashed out at Samsung’s lawyers, Samsung has the right to make public its own evidence, even if the judge has precluded that evidence from being presented at trial. Jurors swear not to consider outside sources, an oath we must presume they take seriously (or else give up on jury trial entirely). There is no gag order on the case, the documents were not confidential and, apparently, the documents had previously been attached to filings in the case, making them a matter of public record anyway. Judge Koh has thus no reason to demand anything from John Quinn in explaining how or why Samsung disclosed the information; parties, from victims of crimes to large companies, have free speech rights to explain their legal circumstances to the public.

Judge Alsup’s single-sentence reasoning explaining why he has demanded the information about shill bloggers for Oracle or Google — i.e., that the information “would be of use on appeal or on any remand to make clear whether any treatise, article, commentary or analysis on the issue posed by this case are possibly influenced by financial relationships to the parties or counsel” — is unusually thin reasoning for such a serious order. What probative value could that information possibly have in deciding the case? Public Citizen is dubious of any valid reason.

But here’s the difference: Judge Koh is trying to control the parties’ PR efforts while Judge Alsup is trying to understand them. I have a hunch Judge Alsup has already started looking far and wide for analysis, which I hope means that he has a substantial opinion in the works. Notice how Judge Alsup’s order begins with treatises; Judge Alsup has reasoned — entirely correctly in my opinion — that, somewhere along the way, he or the appellate judges considering the case will have to rely upon outside sources of information, information that can stretch all the way from a legal treatise — like the copyright treatise literally written by Google’s Senior Copyright Counsel, William Patry — to a technical discussion by a blogger about the functioning of APIs. Given the massive reach of Google and Oracle, there’s more than a slight chance that one of those works will have been written by someone connected to the companies, and, if that’s the case, the court sure needs to know, the sooner the better.

Which brings us back again to Judge Posner; it seems that he and Judge Alsup have seen the writing on the wall: software patents are a problem, and neither Congress nor the Federal Circuit is going to fix them on their own. It’s up to them to start moving the law forward.