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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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courts which have deliberately rejected this | 756 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
courts which have deliberately rejected this
Authored by: PolR on Monday, July 23 2012 @ 09:01 AM EDT
I didn't think you were disrespectful. I was just expressing my surprise. Also I agree my argument will become stronger if the proper lawyering is done and the precedents are invoked. But I am not a lawyer. It is hard for me to do this work correctly.
You are not addressing a line of holdings on patentable subject matter or vagueness.
Here I don't know what to say. All these cases expressly state they are about section 101 patentable subject matter.

[ Reply to This | Parent | # ]

courts which have deliberately rejected this
Authored by: Anonymous on Monday, July 23 2012 @ 09:34 AM EDT
Law is not necessarily troubled by reliance on imaginary facts. See e.g., Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 4 Wheat. 636 (1819) (Marshall, C. J.) ("[a] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law").
Is this the actual definition of a corporation upon which the law is based or is that something else that defines a corporation? How were the first corporations formed? Acts of parliament (or other legislative bodies), perhaps? Royal charters?

Imaginary facts about something that is intangible or an abstraction should not trouble the law especially when they have been created through legislation.

But to have imaginary facts about something tangible? In the appropriate circumstances, would the law recognise my statement under oath that Harry Potter is a fictional character that often wears glasses? Would the law recognise my statement under oath that Daniel Radcliffe is taller than Robbie Coltraine?

One is a fact, backed up by evidence in the books and films, based on a fictional character. The other is a blatent lie about a living person. Only one of those statements would be unacceptable.

The legal fiction that a general purpose computer becomes a new machine when new software is loaded and running is a fiction about a physical object which the evidence refutes. The only way that this legal fiction could, in my mind, become acceptable to the courts is if it was defined in an act of law and passed through the legislature.

I'd be interested in knowing what other legal fictions there are and if any of those are about something that is tangible.

j

[ Reply to This | Parent | # ]

thank you
Authored by: Anonymous on Monday, July 23 2012 @ 03:37 PM EDT
> it is the propriety of the legal fiction in context that is the real issue

We know it's fiction. The judges (at least some of them) know it's fiction.
We engineers have a problem accepting that the law as a pillar of society
can be supported by such a blatantly obvious fiction.

[ Reply to This | Parent | # ]

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