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a court can get the law wrong.

a court can get the law wrong.

Posted Aug 6, 2013 17:07 UTC (Tue) by Wol (guest, #4433)
In reply to: The exfiltrated exFAT driver by giraffedata
Parent article: The exfiltrated exFAT driver

Only too easily, unfortunately.

Or are you saying the legislature is irrelevant, and the law is only what the courts say it is?

The US copyright code says you cannot patent ideas.

The US Supreme Court says you cannot patent ideas.

The Patent Office grants patents on ideas as a matter of course.

Who is right? And given the US tendency to sue at the drop of a hat, and as we have seen the tendency of the courts of first instance to just assume that patents are valid, then you're on to a crap shoot.

So, to take your "the ones that can be enforced", well, it depends, as a defendant, to what extent you are willing and able to defend it. Chances are, the lower court will stiff you. Chances are, if you're still in business, the Supreme Court will declare it invalid. So is that a patent that fits your description, or not?

Cheers,
Wol


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a court can get the law wrong.

Posted Aug 6, 2013 17:53 UTC (Tue) by giraffedata (subscriber, #1954) [Link]

are you saying the legislature is irrelevant, and the law is only what the courts say it is?

The law is determined by all three branches of government working together, but where what you think the courts say the law is is different from what you think the legislature says the law is, yes, the latter is irrelevant for most purposes. The former is what is going to keep you out of jail and wealthy.

But remember this is just a matter of definition. You can define the law as something independent of court rulings, and I'm just saying you can't have a very useful conversation using that definition.

Chances are, the lower court will stiff you. Chances are, if you're still in business, the Supreme Court will declare it invalid.
I haven't heard that claim before - that the Supreme Court usually declares patents invalid after lower courts enforce them. As far as I know, the lower courts do their best to avoid being overruled and usually succeed.

I also don't think the Supreme Court has said that all patents on inventions that could be implemented in software are invalid. (Or that they are patents on ideas, algorithms, or mathematics).

So is that a patent that fits your description, or not?

If the patent would be invalidated by the Supreme Court and the only reason people have to pay royalties on it is because they can't afford to get the Supreme Court to consider it, I would call it an invalid patent.


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