Chapter Ⅰ GENERAL INTRODUCTION
A.Brief Note on American Legal System
Since this course is for both law and nonlaw students,a brief introduction to the background information about American legal system is necessary.If you have studied this topic,you may skip to the next section.
The legal system of the United States is based on the English common law,as opposed to the European continental law system.The major difference between the two legal systems can be very simply summed up as“unwritten law”and“written law.”This is so,not because nothing in the English common law is written down,but because the“law”is not expressed in statutory form.Instead,it is developed and refined through judicial opinions in actual cases.For that reason,it is also called“case law.”On the other hand,in the continental law system,the“law,”or“laws,”are legislatively enacted,and promulgated as a set of“codes,”such as“Civil Code”in France or Germany.
About half of the countries in the world practice civil law system,including China,and the other half of the countries,basically former English colonies or territories,practice the common law.We can roughly say,the common law system dominates in most English-speaking countries,including England itself,the United States (except Louisiana),Canada (except Quebec),the Caribbean Islands,Australia and New Zealand,India and Pakistan,Hong Kong,as well as other former British colonies throughout the world.
That brings up an important aspect of why we conduct this course in English,which is primarily based on American practice.For the past few centuries,the English were dominant in world affairs,and most of the international commercial rules were modeled after Anglo-American practice.In today’s world,American intellectual property legal system still has wide influence,although each and every country has its own legal system and IP regime.We study American legal system and its IP system,not to directly apply their rules,but to learn from their experiences,some of which are good,while others may serve as a warning for our practice.
Now let’s take a brief look at American legal system.
One of the most important principles about case law is stare decisis,a term in Latin,which means“stand by things decided.”A popular misunderstanding about this is to consider that judges in future cases can do nothing except woodenly following the earliest decision.What is the thing to stand by,rather,is the precedential value – how the legal rule is established by which the early judge solved the case.If that is proven to be the correct rule (through appeals and later refinement),there should be no other conflicting rules in future cases.And that is precisely the reason why we study the cases which are the legal opinions explaining how the rules are established,or which established rule to follow,as applied to particular facts in cases.
On the other hand,common law countries do have a lot of statutory laws,called the“Acts”made by the legislature.But unlike perhaps in most civil law countries,the legislative enactments in the United States are mostly the result of judicial decisions: when a rule has been tested in many cases,it becomes“settled law,”and may be adopted by Congress into statutory law.For example,section 103 of the U.S.patent law about the quality of inventions is the summary of 150 years of judicial practice.The rule is there which has long been held as an existing principle – that no trivial improvement that is the work of any ordinary technician and not of an inventor may be patentable – but it became codified into § 103 of the Patent Act only when this highly subjective standard is sufficiently settled through many years of litigation.
Another thing worth noting is the dual legal systems in the United States:each state has its own judicial system,its own common law and statutory law,and a federal judicial system authorized under the Constitution of the United States.The Patent Act was specifically enumerated as the federal law.For that reason,the federal courts have exclusive jurisdiction over patent issues.