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HOME | PUBLISHER | July-September 2013. | eCOVER VIV

Science, People & Politics, issue 3 (July.- Sept.), IV (2013).

Patents as metaphor for judicial decisions
by Helen Gavaghan
A review of Patently Contestable
Electrical Technologies and Inventor Identities on Trial in Britain
by Graeme Gooday and Stathis Arapostathis
Cloth, MIT Presss. £27.99.

The world's patent laws are being harmonised, making this book timely. There the book's overt relevance to patent law today ends. This is a history book. But its authors are steeped in philosophy and the history of science, and I think they have opened, not obviously knowingly, some interesting philosophical questions about the nature of judicial decisions. Concentrating on the period 1870 to 1920, and on patent challenged heard in courts, the authors assert they are telling a story of how in the UK the judiciary shaped the history of telegraphy, telephones and electrical power.

"...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."
pp203-204, Patently Contestable.

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.

Both judicial decisions and patents strive for fairness based on careful analysis of evid- ence within bodies of norms related to an external reality, discernable because of effects manifested in the world in which we see and touch. What the actual external reality in a legal case is may not be known, even to the participants. It is not just that new evidence might emerge, but - to borrow a metaphor from better thinkers than I - that the Court has a beautiful map of Warsaw, made of exquisite epistemology, but unbeknownst to itself it is sitting in Budapest. Somehow judges avoid this trap. Is it the type of decision aimed for, the path there, or what constitutes admissable evidence which prevents miscarriage of justice resulting from wrong analysis or wrong starting point.

"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.

Take the first, that someone had earlier invented the technology. Settling such a dispute means deciding what constitutes an invention and whether there is a like for like comparison or not. If a couple argue about ownership of a dinner service, is the argument about a joint investment or about the need to have something off which to eat. The same object is two different things. One has utility and earning potential, the other has utility and avoidance of additional expenditure. To which would a patent be applicable? It seems to me that to settle ownership one needs to know what the thing in dispute is, beyond the obvious, and that the argument is about the nature of a thing, not who invented what first.

Or in the case of cumulative invention, where many contribute, is there a tipping point beyond which the story does not exist. In a criminal case perhaps the cumulative events prior to one specific action would be arguments in mitigation. But in that case there is one actor without whom the story would not exist. Was that the person who acted, or the person who did not act?

Or the question of what belongs in the public domain. What, beyond lack of profit, would be the downside of the contested patent remaining in the private domain? That is if the inventor never made their knowledge public. Who might suffer, and how, if there were not accountability in the form of a patent, and poor stewardship resulted. Think of a law case where a public body fails to give warning of a danger associated with land under its control. Some means of determining what the danger is and who has responsibility is needed. Do the State, and or common wield benefit most from private enterprise or from common ownership. The State and common wield are not always the same thing, To issue a compulsory purchase order, something needs identifying for purchase.

The final category is when an invention is based heavily on theory rather than practice. Well the person planning a crime is as culpable as the person executing the crime.

So all in all it seems to me judicial decisions and patents have a lot in common, It's not only the nature of the evidence in question, but the place and part in the history of science, technology and craftsmanship on the one hand, and in the history of a human life amid their differing relationships and experiences on the other hand. Over seven chapters Gooday and Arapostathis explore the stories of contested patents in the field of electrotechnologies of the late nineteenth and early twentieth century, and do so very well, steering well clear of philosophy. For many readers that, I imagine, will be a plus. (END)

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