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

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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 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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Science, People & Politics issn:1751-598x (online)©.

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