Friday, April 29, 2016

Legal decisions must rest on factually accurate information

One takes note of the post at PatentDocs entitled
The Fantastical World of Justice Stephen Breyer

As a side comment to the text ["The tragedy, first explored by Stephen Jay Gould in "Carrie Buck's Daughter," The Flamingo's Smile (1985)..." ]. one notes that the 1961 movie Judgment at Nuremberg raised the issue
[wikipedia: He [Hans Rolfe (Maximilian Schell) ] also suggests that the United States has committed acts just as bad or worse as those the Nazis perpetrated. He raises several points in these arguments, such as: U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.'s support for the first eugenics practices (see Buck v. Bell )]

As to the confusion of facts issue

Justice Holmes rendered his opinion based on this factual inaccuracy and, according to Mr. Cohen, his own prejudices about race and class as a Boston Brahmin of the turn of the 20th Century. While the Justice had more than adequate help in coming to the wrong conclusion, ultimately Mr. Cohen shows that the combination of predilection and factual error informed one of the cruelest aphorisms in American jurisprudence (which remains good law today).

It is easy for this example to come to mind when reading the questions and assertions from current Associate Justice Stephen Breyer, author of the Court's unanimous decision in Mayo v. Prometheus, regarding his understanding and concerns with the patent system and its discontents.

one also recalls a similar confusion of facts issue in the Dred Scott decision, as brought up by dissenting judge
Benjamin Curtis. Although Taney applied a "what was the status (of African Americans) at the time of the signing of the Constitution" to infer "not citizens then or now", Curtis pointed out, as a factual matter, this simply was not true.


see also, Lawrence B. Ebert, Obtaining Sure and Reliable Information, Intellectual Property Today (2000), which begins

"When invention is rife and rights so precarious as they now are under the administration of the patent office, every person ought to have some sure and reliable information in relation to his legal rights before he ventures upon application." n2 "There is scarcely any subject out of which grows more law-suits than that of patents. Every one therefore interested should know what to avoid and what to do." n3 Although words of contemporary wisdom, this advice was actually given about 150 years ago. The problem remains: where to get sure and reliable information?

endnote 2: From The United States Democratic review, Volume 29, Issue 158, page 192 (August 1851) reviewing Inventor's Manual: or Legal Principles, and Guide to the Patent Office by George Ticknor Curtis, brother of Benjamin Curtis, U.S. Supreme Court Justice who authored the opinion in Winans v. Deomead, which crystallized the "doctrine of equivalents."


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