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Ordre Public and Morality in Patent Law

Public policy consists of fundamental principles which look into the legal system of each state in the United States. It oversees moral, social and economic values which make the society live together and for people in it to conduct their endeavors in a legal way. Law is used to regulate behavior so as to ensure the existing social expectations are met and to encourage constructive change which will be consistent with the most generally accepted social norms and the collective morality of the society, since values vary from place to place and change continually.

‘Ignorant of law is not an excuse’, this is the most fundamental policy which should be used during enforcement of a legal system. This policy completely undermines the enforcement of law, for example if, a person who is at fault raises a successful defense claiming that he/she was not aware of that particular law before committing the crime. Law therefore is generally available and adults are required to seek the law before taking an action because if they fail to access the requirements of law then they are not meant to complain if their acts are declared unlawful. This law only excludes adults who may be of

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a reduced capacity, or an infant, (Moufang, 1998)

In the first case involves Todd who wanted to have a child outside marriage and Straud agreed to have intercourse with Todd after signing an agreement which stated that he would not be held harmful for any emotional or financial support which Todd may undergo in raising the child as a result of the relationship. However after getting the child B.M.T and raising it for three years without Straud’s support, Todd filed a suit seeking paternity declaration and child support from Straud.

According to the public policy law, the state is the default parent for all the children which are within its jurisdiction, they protect the rights of the child and will usurp the rights of the natural parents so that they can protect the child’s rights as the legal guardian. Doctrine of evasion in law prevents persons whether natural (individuals/people) or artificial (organizations/companies) from evading application of obligations and liabilities which they are already attached to.

This branch of law is especially applied in social contracts where all persons owing allegiance to state are entitled to assume that  everyone should receive equal and fair treatment before the eyes of the law. This means that there should not be an existence of favoritism to any person or any preferential treatment due to the persons rank or status in the society.

Straud was therefore required to contribute to the child’s support as its father because it is for the best interest of the child and this is taken as a primary consideration by law. This is done regardless of the contact entered into between Todd and Straud because Straud was ignorant of law before entering into contract with Todd.

According to (Buckley, 2005), doctrine of illegality usually applies in cases where there is a clear misrepresentation by a defendant and there are some true facts which have been concealed in the relationship.

In the case of Nelson who was a clerical employee for Trotter, an attorney, Trotter had agreed to pay 5% to Nelson of the fee generated from personal injury or workers compensation cases referred to him. This agreement is a violation of Indiana rule of professional conduct and after Trotter declined to pay Nelson, he sued her under the contract. In this case, Trotter knew that the contract she had entered into was not in conformance with the rules of professional conduct but declined to inform Nelson about it. This means that Trotter had hidden some information and there was misrepresentation in this relationship. Therefore the Doctrine of illegality can apply to help Nelson get the fee since he was under misrepresentation and true facts were hidden from him. (Buckley, 2005)

Use of defense of illegality in legal cases as a complete bar to liability by defendants is usually accepted in  very few cases. One of the cases where  defense of illegality can apply is where a plaintiff voluntarily participated in illegal conducts in course of his business or undertakings resulting to his or her harm. In such a case, the plaintiff normally is contributorily negligent and will therefore be partially liable. The defendant can only rely on the defense of illegality where the defense of contributory negligence is of no avail such as in traffic road accidents.

In the case of Wilson who was a licensed architect had failed to pay the annual 15 dollar registration fee which was required by the licensing statute. After doing a good job of 33,900 dollars in Kealakekua ranch, they refused to pay and Nelson sued for his fee.  Kealakekua raised a defense of illegality towards Nelson. In this case, the failure to pay the annual registration fee by Nelson bars him from  recovery and his contract with Kealakekua is illegal.

This is because Nelson freely and voluntarily consented to participation in this illegal act and was not under duress from  Kealakekua. Therefore since the illegality defense is based on the principle that a party who agrees to and), participates in an illegal act may nor recover from other involved participants for the consequences of the act, Nelson may not be able to recover his money from Kealakekua since he failed to pay his registration fee making the contract illegal in the first place.

In a release agreement or a sports waiver which is valid, participants waives or releases any future negligence claims which a person may have against the provider of the recreational services in exchange for participation opportunity by the person. these waivers and releases are also be referred to as exculpatory agreements. This agreement forgives or exculpates the provider off any future negligent conduct and is limited to negligent misconduct. An exculpatory agreements therefore lowers the applicable standards of liability from ordinary negligence of the conduct to gross negligence. However, the waivers are valid so long as they do not violate the public policy of a certain society. In Virginia however, exculpatory agreements are legal and are not seen as a violation of Virginia’s public policy.

In the case of University of Virginia Vs Kyriazis, the university had intramural and club athletics and did not take any role in organization, supervision or regulation of sports, however it controlled the intramural sports and regulated them for safety. Recognition as a club sport entitled it to get money from school to join sports club federation and get more money as well as use school facilities. Students participating in sports club signed a release stating recognition of hazards involved and waive any claims against the school for injury or death due to participation. Kyriazis played club sport of rugby, was injured and sued the school for negligence.

It was held that in West Virginia, they rule of exculpatory agreements does not violate the law of public policy and therefore Kyriazis action for negligence was barred conclusively and could not use this rule to get compensation from the school.

Reference:

Moufang, R, (1998), The Concept of Ordre Public and Morality in Patent Law, Catholieke University Brussel, Bruxelles.

Buckley, F.H, (2005), just exchange: a theory of contract, Routlege, ISBN:0415700264

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