When Justice Joseph Story said in 1841 that patent cases are closer than any other kind to “the metaphysics of law,” he could have been speaking for the frustrated jurist or patent clerk of any era. What happens when the differences in what two parties claim to have created are narrow or nuanced to the point of being indistinguishable?
The dilemma is especially sharp in the era of digital technology. After all, patents on physical things can be measured and felt. But what about the world of software, where much innovation is subtle and conceptual? What about Google and Oracle’s fight over Patent No. 7,426,720, “System and method for dynamic pre-loading of classes through memory space cloning of a master runtime system process”? In a field whose products are built in layers, with each successive innovation representing a small and sometimes imperceptible shift in code, drawing a line between the old and the new can look like an exercise in counting the number of angels that can dance on a microchip.
