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

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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.

XXXThe 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.

    " 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, and more than they limited their
    judicial powere in interpreting patents to the literal text of the specification."


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