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Wednesday, April 29, 2020

Bushrod Washington--At Home!

When I can, I'm still working on my Bushrod Washington biography. The end is in sight. So I thought I'd start doing more posts about what I've found. (If zoos and museums can post "At Home" content, why not me?)

Here's the first one. Patent lawyers are familiar with the doctrine of equivalents. As stated most recently by the Supreme Court, the doctrine holds that "a patent's scope is not limited to its literal terms, but embraces all equivalents to the claims described." Which judge first articulated this important idea?

The answer is Bushrod Washington. In 1817, he instructed a jury in a patent case that: "What constitutes a difference in principle between two machines, is frequently a question of difficulty more especially if the difference in form is considerable, and the machinery complicated. But we think it may safely be laid down as a general rule, that where the machines are substantially the same, and operate in the same manner, to produce the same result, they must be in principle the same." There are two prior circuit cases (from 1804 and 1810) in which he told juries much the same (albeit more briefly).

My guess is that Bushrod was never acknowledged for this development because Justice Story (also in a circuit opinion) expressed the idea more colorfully in 1814. Indeed, this example supports one of my tentative conclusions in the book, which is that Story is overrated and Washington underrated in part because Story was better at writing pithy aphorisms. Robert Jackson once explained that both of the Hand cousins were excellent judges, but that a rule of thumb for lawyers was to "quote Learned but go with Gus [Augustus]." A similar statement can be made about Story and Washington. Story was more brilliant and quotable, but he also made many mistakes. (I'll take more about that in other posts.) Washington's opinions are less exciting to read, but he made few mistakes.

Posted by Gerard Magliocca on April 29, 2020 at 09:38 AM | Permalink


Great post! I didn’t knowral of these resources and I’m going to go check them out now!

Posted by: 1v1 lol | May 9, 2020 2:41:35 AM

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