Patents as metaphor for judicial decisions
"...it was the prerogative of High Court judges rather than patent office
officials not only to adjudicate the validity of any contested patent, but to
determine more generally what was the legitimate scope of inventive
matter eligible for patenting."
I think the way the authors tell the story skates over the topography of the history, and does
so rather than digging into cause, effect and the nature of the evidence, creating the surface
selected. Throughout I looked for awareness they had in mind what constitutes a judicial
decision, what the essences of such decisions are, which give them gravitas, and I looked
for evidence they had in mind what commonality judicial decisions in time have with the
intersection, also in time, among science, technology and saleable utility. It is the latter
three which to me make patents a realistic and useful societal and business construct.
"As we discuss further below, judges did not limit the scope to distinct practical innovations that were useful and non anticipated, any more than they limited their judicial powers in interpreting patents to the literal text of the specification."
For my discussion, prompted by "Patently Contestable", about what constitutes a patent, and
what makes a judicial decision, the analysis from Gooday and Arapostathis of the four categories
of contested patent which they identify is interesting. Court battles arose, they say, because:
a rival claimant asserted they had earlier invented the
disputed technology; or the invention was claimed to be the cumulative work of many, as in the case
of wireless telegraphy; or the technology seemed properly to belong in the public domain;
or the patent was alleged invalid because grounded in theory rather than practical innovation.