22 July 2005

Dodgson, J., presiding

The law's self-deception on its relationship with the real world is nowhere more apparent than in intellectual property matters. As Peter Prescott, QC, puts it in a fabulously entertaining (and subversive) opinion,

9. What is an 'invention' (in the sense I am now concerned with) is a topic bedevilled by verbal formulae — and by the sweeping of problems under the carpet. So, before I go any further I want to bring some of those problems out into the light of day.

10. But first: does it really matter? Is it merely a sterile argument about the meaning of words? To which I answer that whoever controls the meaning of 'invention' controls what can be patented and hence an important aspect of industrial policy. There can be but one justification for having a patent system, and that is that it is good for the people of the country. If the patenting of certain things does more harm than good, it matters. Patents that are wrongly granted can be very expensive to challenge and may deter small and medium enterprises.

In re Patent Applications GB 0226884.3 and 0419317.3 by CFPH llc, 2005 EWHC 1589 (21 Jul. 2005) (thanks to the IPKat for noting this decision, for which I have been waiting with bated breath).1 Mr Prescott later echoes Justice Stewart's definition—or lack thereof—in Jacobellis:

11. At the risk of some inaccuracy, patents are supposed to be granted for non-obvious advances in technology. I said "at the risk of some inaccuracy". We sense that we know 'technology' when we see it. And no doubt that is correct, most of the time.


Of course, this echoes Lewis Carroll2 more than a little bit, too; and I'm sure, based on reading some of Mr Prescott's other opinions, that he was perfectly aware of that.

"I don't know what you mean by 'glory,'" Alice said.

Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!'"

"But 'glory' doesn't mean 'a nice knock-down argument,'" Alice objected.

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."

"The question is," said Alice, "whether you can make words mean different things."

"The question is," said Humpty Dumpty, "which is to be master—that's all."

Lewis Carroll, Through the Looking Glass and What Alice Found There (1872), ch. 6.3 It is also relevant to the controversies concerning, on the one hand, software patents, and on the other hand, business methods. The final bit of irony is that Mr Prescott determined that the method of interpretation didn't matter: He knew that the patent applications were not inventions when he saw them.

  1. Note how much more sensible the citation format is than the one we use over here. I took this from an HTML opinion… and don't have to wait for the "official reporter" to have a perfectly citeable reference. I mention this only because there's a new edition of the dreaded Blue Book out that continues the stupidity of citing to page numbers in an increasingly electronic world.
  2. Do I really have to connect this to the title of this entry? Do I really have to point out the irony of relying upon a pseudonymous work for the concept that words can be twisted to mean something entirely unexpected?
  3. A proper citation includes exactly what I need it to include—neither more nor less. Cf. note 1 supra. And if you haven't figured out that this footnote is entirely ironic—one cannot cite to a particular page of Through the Looking Glass, given the multitude of editions, and expect that citation to be intelligible or of assistance in verifying the quotation and its context—just what are you doing reading this blawg?