It is sometimes said that ‘hard cases make bad law’. This is not actually generally true, and good and bad law emerges from a wide variety of different cases. Perhaps, in fact, the quality of judges, or the quality of argument presented at trial, are more important factors than the difficulty of the case.
That being said, ‘hard’ cases do present judges with special challenges. In this context, a hard case is one in which the most literal or straightforward application of the law – i.e. the binding precedents and relevant statutory provisions – is liable to produce a result that may strike the judge as illogical, unfair, absurd, unjust, or just plain wrong.
The temptation in such cases must be very great to try to find a ‘creative’ approach to applying the law in order to make the legal outcome match the subjectively ‘right’ decision.
Patent law is not immune from such ‘hard’ decisions. Sometimes, for example, an alleged infringer’s efforts to ‘work around’ a patent, and escape infringement on a technicality, are so flagrant that judges are inclined to find ways to broaden the interpretation of patent claims in order to capture the infringer’s variation.
So what would happen if a judge (or, indeed, three judges) were to look at an invention and think ‘surely that cannot be eligible for a patent?’ And what if they then looked at the current state of law and found that, in fact, a literal and straightforward application of the law could well lead to the conclusion that the suspect invention is patent-eligible? The answer might be that you end up with a decision like that of the Full Court of the Federal Court of Australia in Research Affiliates LLC v Commissioner of Patents  FCAFC 150.
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