[ILUG] ILUG sends s/w patents briefing document to Irish MEPs

[David Golden]

On Friday 18 March 2005 13:57, Michael Conry wrote:
> I'm not a lawyer, but I'm pretty confident when I say that in
> Ireland/UK/USA/Australia and other common-law states, what a judge
> says is not "binding over what a law actually says".  

No, indeed it isn't, at least not exactly, since statutes are supposed 
to be codifications of the current common law position, and the judge
is indeed supposed to be interpreting the current common law.., 

Anyway,  no large scale modern system is absolutely cleanly "common" or 
cleanly "civil" *, my point (rest of this is getting a bit offtopic) 
was that the vague distinction makes it a bit easier to challenge 
precedent in Germany than here. 

(* e.g. Ireland has a codifed written constitution, whereas England with 
its purer common law vociferously claims to have a perfectly good 
constitution, it's just an unwritten one defined by a millenium of 
common law case law reasoning...)

Another wikipedia link, which may or may not be accurate being wikipedia 
and all, but might alter a few of your assumptions:

http://en.wikipedia.org/wiki/Common_law#Basic_principles_of_common_law

But there's another very large complication in some common law
systems : Law vs. Equity  http://en.wikipedia.org/wiki/Equity
A lot of patent stuff probably comes under equity rather than law,
but I don't really know.

Anyway AFAIK, while  a new statute could "restate" (to mean something 
completely different) or just plain override  earlier common law and 
therefore overturn/invalidate prior precedent, or it can establish new 
"cause of action" (see wikipedia link), and it is the law... in a way,  
it's the new precedent  / case law that is built up around the new 
statute that ultimately establishes what the common law is, not the 
statute itself.    This is AFAIK why (most of) the USA is so fond of 
"test cases"  (N.B. different USA states have different legal founding 
principles, so the USA is proof that  unholy union between common and 
civil law systems is at least possible...)

Whereas in the civil system, the case law judgements (sometimes) count 
as clarifications or (re)interpretations of the canonical _written_ 
law.  In the german patent issue, the court's reinterpretation based on 
EPO opinion is disputed by many, for example, and just as the 
pro-patent forces were able to point to academic papers about the 
wonderfulness patent system by patent attorneys, so could anti-patent 
forces point to academic papers about the awfulness patent system by 
economists.  

> And in fact, judgements abroad do have some value as precedent here.

They do indeed.

Wonder what  Brehon law would do with patents, anyway :-)