Unicorns, PHOSITAs, and Other Creatures

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5 Responses

  1. See also: Douglas Hofstadter’s myriad writings on counterfactuals and logic. How can a subjunctive assertion starting, “If I were you …” have any meaning? Clearly I’m not you, so anything asserted in such a subjunctive is “fictional”, and has no meaning in the real world.

    Maybe law students would benefit from some background in mathematics or physics, where at every turn we use such fictions as “test particles” which have the magical ability to measure the electric field without contributing any field of their own. And yet somehow we manage to make rigorous, testable predictions and show that there’s a meaning to an idealization like the PHOSITA after all.

  2. Chris says:

    What we need are philosophers, who generally gloss “if p were the case, then q” as “in the closest possible world where p is the case, q is also the case.” See, e.g., here.

  3. JP says:

    I understand that law professors abhor this, but I would suggest explaining a practical application.

    Encountering the Reasonable Person in law school, it seemed like a kind of pointless rhetorical device. In civil litigation however, I learned it’s actually a fairly useful rhetorical device. When the Reasonable Person pops up as an issue, I focus my writing on conveying that I am the Reasonable Person–and the Judge can be too, if only she accepts my arguments, and not those of opposing counsel and his client.

    I would think something similar could be done for the PHOSITA. That is, pick out someone on your side (your client, your client’s employee, your expert), and convince the Court that that person is PHOSITA. Rather than a “moving target,” PHOSITA becomes a flexible and practical tool. (I would love to know if any patent lawyers have thoughts on this).

    Of course, if any students ask how judges use the Reasonable Person and PHOSITA, you can just explain the truth: it’s a way to avoid saying “Well, it seems to me that ….”

  4. TGP says:

    As a Law Student just encountering the idea of a reasonable person it became pretty clear early on that there is no one reasonable person in an objective sense. In my mind i think of it along the lines that JP does. The reasonable person is me and the people i can get to agree with me. It has come down to, “well ya that makes sense to me” or an “i could see that”. Reasonable becomes an agreement on a norm built originally from my own view.

  5. pl says:

    That is, pick out someone on your side (your client, your client’s employee, your expert), and convince the Court that that person is PHOSITA. Rather than a “moving target,” PHOSITA becomes a flexible and practical tool. (I would love to know if any patent lawyers have thoughts on this)

    JP, patent lawyers do this all of the time, though perhaps not quite as far as it sounds like you take it.

    Sometimes people on the other side are PHOSITAs too, when they make damaging admissions.