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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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The Philosophical Perspective | 756 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Philosophical Perspective
Authored by: Anonymous on Monday, July 23 2012 @ 09:48 PM EDT
> "mental steps" executed by
a human being are abstract ides and not patentable. But
algorithmic steps
executed by a machine are not mental steps according to some
other case law.
This distinction seems to me logically inconsistent.

I agree.

When I applied to law school, I thought that a background
in computers (particularly, mathematical notions of logic)
would give me an advantage compared to other students. I
was wrong; it was mostly a hindrance, but it made the actual
tasks of a lawyer seem more foreign. There are some areas
of law that are rule-based to the point of ignoring everyday
notions of fairness: you apply the rules in a strictly
algorithmic fashion. Actually a lot of "Law" is like that
to a large degree, but then gets trumped by imprecise
"principles of equity." (To a lawyer, "law" and
"equity"
are distinct.) There are a few areas where equity
principles are practically nonexistent: for example in
property law, especially the interpretation of wills, but in
most of the law, equity rules. Within patent law, equity
can't get much of a foothold in technical areas like claim
construction or the analysis of prior art, but the broader
questions of patentability are, like much of the law, vague,
incompletely specified, and self-inconsitent. Strict
application of the rules is hopeless, and judges know it.
This is a lawyer's normal environment, and it's different
from a programmer's normal environment. If programmers
were designing the legal system, you wouldn't see lawyers
filing motions that argue about the meaning of the "parole
evidence rule", ever. But lawyers file those in a lot (I
don't know the numbers, but I'd guess a majority) of
litigations. Uncertainty in the rules keeps the lawyers
employed and the judges feeling Solomonic. Anyway, the
state of the art in the law is that you articulate one or
two general principles, and then you articulate some
countervailing principle(s) to be resorted to when the first
principle(s) seem to "go too far", and then you wait a few
decades for courts to come to consensus about where to draw
the boundary between the domain of Principle X and the
domain of Principle Y.
So, free speech "shall not be infringed", but you can't yell
"fire" in a crowded theater, and "obscenity isn't speech"
(that last one is my favorite example when people ask me to
define "legal fiction").

[ Reply to This | Parent | # ]

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