New, Non-Obvious, and umm, Useful?
Orin Kerr has an interesting post over at Volokh Conspiracy, “Government Responds in United States v. Ziegler,” which contains this interesting bit:
But that’s simply not how the Fourth Amendment works. The “reasonable expectation of privacy” test is actually a system of localized rules: the phrase is simply a label, and what it actually means depends on the specific context as determined by the Supreme Court’s cases. The Supreme Court has decided dozens of cases interpreting the reasonable expectation of privacy test, and those cases offer specific interpretations for lower courts to use. As a result, the actual meaning of the Fourth Amendment is highly localized: “reasonable expectation of privacy” means different things in different contexts, and usually has nothing to do with the probability that a reasonable person would expect something to remain private.
It reminds me of the patent system, wherein the words “new,” “useful” and “non-obvious” have so deviated from their English meanings that the non-expert is helpless to engage.
That’s one of the first things learned in law school: that you don’t really know much about what the words mean until you’ve read the cases interpreting them.
This is so for a variety of reasons. One problem is that the lawmakers often have very different meanings in mind than the normal English meanings. Another is that the normal English meanings themselves are not really as clear-cut as we’d like to believe, and vary greatly by context. Yet another is that statutes often simply don’t have any reasonable and just interpretation unless non-standard meanings are imputed. Of course all these problems give judges the opportunity to impute their own policy preferences into the law.
I should add that the law often, in an effort to arrive at more reasonble and just or efficient solutions, develops new concepts. Common words are often reused, metaphorically or with otherwise somewhat changed meanings, to describe the new concept. Law shares this problem with the jargon of other professions: people often confuse the professional word with the common meaning.
Back when legal opinions were written in Latin or Law French (both were used in medieval and Renaissance English courts) this wasn’t as much confusion because the entire language was non-standard jargon. 🙂
In the case of “obviousness,” the big problem is that the common meaning to engineers is very subjective. A subjective test allows the patent examiner to make a practically unreviewable decision to accept or reject a patent. In the process of trying to come up with an objective, repeatable test the courts have greatly changed the meaning from what an engineer would consider “obvious” and on the balance made it more difficult for an examiner or court to reject or invalidate a patent on these grounds.
You may be happy to learn that two of my professors at GWU, Robert Brauneis and John Duffy, are leading the effort to change the meaning of “obvious” back to something more like an engineer would think. The oral argument before the Supreme Court is in November.
I should add that the law often, in an effort to arrive at more reasonble and just or efficient solutions, develops new concepts. Common words are often reused, metaphorically or with otherwise somewhat changed meanings, to describe the new concept. Law shares this problem with the jargon of other professions: people often confuse the professional word with the common meaning.
Back when legal opinions were written in Latin or Law French (both were used in medieval and Renaissance English courts) this wasn’t as much confusion because the entire language was non-standard jargon. 🙂
In the case of “obviousness,” the big problem is that the common meaning to engineers is very subjective. A subjective test allows the patent examiner to make a practically unreviewable decision to accept or reject a patent. In the process of trying to come up with an objective, repeatable test the courts have greatly changed the meaning from what an engineer would consider “obvious” and on the balance made it more difficult for an examiner or court to reject or invalidate a patent on these grounds.
You may be happy to learn that two of my professors at GWU, Robert Brauneis and John Duffy, are leading the effort to change the meaning of “obvious” back to something more like an engineer would think. The oral argument before the Supreme Court is in November.