Saturday, December 31, 2011

Go Daddy's Bizarre Trunk Show

Elephants, both African and Asian, are endangered.  The ivory trade, big game hunting, and slow gestation periods all play a role in decimating pachyderms.  Most people appear to find elephants endearing, and worth protecting.  However, in one of the strangest videos of 2011, Go Daddy CEO, Bob Parsons, claims to have shot and killed a Zimbabwean elephant because of the dire threat it posed to the food supply of local villagers.  Despite overwhelming evidence that famine stalks Zimbabweans due to the ruthless policies of their dictator, Parsons appears to view marauding elephants as significant threats to the food supply.  Here's Parson's video confession of pachydermicide, which invites comparison with Teddy Roosevelt, another famous elephant hunter.  Other similarities between Parsons and the great President Roosevelt are not apparent.  Based on his other videos, often promoting himself personally, and Go Daddy as a domain name registrar, some of Parsons non-elephantine views are also eccentric.  As a permanent home for his various musings on bull elephants, Parsons might consider acquiring www.elephantbull.com, if it is still available.

Wednesday, November 30, 2011

Secret Salmon Science

As one of the brothers in Lewis Carroll's The Two Brothers laments,
Take my friends and my home - as an outcast I'll roam: Take the money I have in the bank: It is just what I wish, but deprive me of fish, And my life would indeed be blank.
This ichthyophile brother would surely be alarmed at the crisis now facing wild salmon stocks on the Pacific coast of North America.


Salmon can contract an influenza-related virus that causes infectious salmon anemia ("ISA").  For the past few decades ISA has been devastating salmon populations from Norway and Scotland to the Canadian Maritimes and Chile, sometimes killing more than 9 out of every 10 fish.  Critics of salmon farming have blamed the spread of ISA on the high densities of fish kept together in ocean-borne cages, along with frequent piscine jailbreaks into the wild.

In October, 2011, ISA was diagnosed among wild pacific salmon in British Columbia by the ISA Reference Laboratory at the Atlantic Veterninary College, in Prince Edward Island.  Although these diagnoses were quickly disputed by the Canadian Food Inspection Agency, it now appears that Canada may have made similar diagnoses as long ago as 2002.  If so, it seems that Canada failed in its obligations to inform the United States and the World Organization for Animal Health.

Salmon farming is especially controversial on the Pacific coast of North America, because of the existence of a thriving wild salmon fishery.  Fears that escapees from fish farms there could spread diseases to these wild populations have generally been dismissed by fish farmers.

If ISA has indeed infected wild Pacific salmon populations, Carroll's other, ichthyophobic, brother would surely be delighted:
What? a higher delight to be drawn from the sight of fish full of life and of glee? What a noodle you are! ‘Tis delightfuller far to kill them than let them go free!
Too bad Dudley Do-Right did not do right by the salmon.

Monday, October 31, 2011

IPAT Baby Seven Billion

With the seven billionth living human being imminent, it is important to consider that numbers of people alone do not explain the environmental impact Homo sapiens have on the earth.  Developed by Stanford biologist Paul Ehrlich, Assistant to the President for Science and Technology John Holdren, and others back in the 1970s, the IPAT formula provides a useful lens through which to view Mr. or Ms. Seven Billion ("Giga Septem").

The I=PAT formula is an identity.  I represents environmental impact, P population, A affluence, and T technology.  While human population (that is, number of people) and affluence (that is, wealth per person) have tended to push I upwards over the last few thousand years, the technology factor (impact per wealth) has tended to decrease I by providing increasingly efficient means for accomplishing tasks.  Because I is calculated as the product of P, A, and T, each factor is equally important.

Thus, while population growth certainly contributes to environmental impact, so do affluence growth and technological improvement.  Welcome, G. Septem.  Now that you have joined us, we will watch with fascination how wealthy you become, and how quickly technology improves during your lifetime.

Friday, September 16, 2011

Weldon Amendment Welded Onto The Patent Act

In 2004, the Consolidated Appropriations Act (Public Law Number 108-199, Section 199) was passed with the "Weldon Amendment" (named for its sponsor, former Republican Congressman Dr. Dave Weldon), a rider stipulating that "[n]one of the funds appropriated or otherwise made available under this Act may be used to issue patents on claims directed to or encompassing a human organism."  On September 16, 2011, when President Barack Obama signed into the law the America Invents Act, the Weldon Amendment became an integral part of the Patent Act.  Effective immediately, here is what this new patent law requires:
SEC. 33.  LIMITATIONS ON ISSUANCE OF PATENTS
(a) LIMITATION.-Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
(b) EFFECTIVE DATE.-
(1) IN GENERAL.-Subsection (a) shall apply to any application for patent that is pending on, or filed on or after, the date of the enactment of this Act.
(2) PRIOR APPLICATIONS.-Subsection (a) shall not affect the validity of any patent issued on an application to which paragraph (1) does not apply.
No one yet knows what "directed to or encompassing a human organism" means.  The United States Patent and Trademark Office will have the first opportunity to apply this restriction as the initial arbiter of patent applications.  Inevitably, the federal courts will weigh in to provide more authoritative interpretations.  Eventually, Congress may have to amend this provision to clarify it.  Meanwhile, the inclusion of this restriction on patenting "a human organism" directly within the patent statute strongly signals that at least some biotechnological advances have unsettled both Congress and the President.

Wednesday, August 10, 2011

A Clockwork Orange - 2011

London's burning!  London's burning!  All across the town, all across the night.  Alex The Large and his droogs would be in their element.  As Alex might say,
What we were after now was the old surprise visit. That was a real kick and good for laughs and lashings of the old ultraviolence.
Mirabile dictu, Egypt's bloggers and tweeters are now covering protests, mass violence, and looting in England.  While there will always be an England, it will never quite be the same England it was before even the injured were considered fair game for mugging.

Rue Britannia:  Britannia ruined by knaves.

Friday, July 29, 2011

Myriad Genes To Patent

The United States Supreme Court must be despairing of how many patent appeals are coming its way.  After all, patent law is few people's cup of tea.  As one old, though obscure, joke puts it:
Question:  What's the difference between a patent attorney and a tax attorney?
Answer:  Patent attorneys are like tax attorneys, but without the scintillating personalities!
Watch out, Supremes, because the Court of Appeals for the Federal Circuit may have just teed you up to grant yet another writ of certiorari in a patent case.

Like Prometheus v. Mayo, a dispute focused on the patentability of methods of medical diagnosis and treatment, Association for Molecular Patholody v. Myriad raises fundamental questions of patentable subject matter and the interpretation of 35 U.S.C. 101.  On July 29, 2011, the Court of Appeals for the Federal Circuit largely overturned a decision on summary judgment by Judge Sweet of the Southern District of New York that rendered unpatentable claims to isolated DNA molecules per se and methods of diagnosis relying on comparisons of mutated DNA molecules with corresponding patient DNA samples.
 
It would be natural for the Supreme Court to combine the appeals of Prometheus v. Mayo and Association for Molecular Pathology v. Myriad because they both probe similar and related issues of patentable subject matter.  Such a combined appeal would have the potential to settle fundamental issues of patent eligibility surrounding many biotechnology inventions for a generation.

The eyes of biologists, the biotechnology industry, and patient advocacy groups are now firmly fixed upon the Supremes.

Thursday, July 28, 2011

When Patents Attack

This American Life, a quirky and wonderful weekly radio program on National Public Radio, has featured stories on comedians, how to speak to kids, psychopaths, unconditional love, and mind games.  On July 22, 2011, TAL investigated a special breed of trolls:  patent trolls.  Here is how TAL describes the program:
Why would a company rent an office in a tiny town in East Texas, put a nameplate on the door, and leave it completely empty for a year? The answer involves a controversial billionaire physicist in Seattle, a 40 pound cookbook, and a war waging right now, all across the software and tech industries.  We take you inside this war, and tell the fascinating story of how an idea enshrined in the US constitution to promote progress and innovation, is now being used to do the opposite.
This patent who dunnit is fascinating and entertaining.  Moreover, it transforms a field of law often viewed - even by other, non-patent, attorneys - as dry, technical, and inaccessible, into something that, like Lord Byron, seems mad, bad, and dangerous to know.  Listen to the program here.


Hear it before you go infringing. You'll never go in the patent pool again! 

Wednesday, July 27, 2011

Toxodebtosis

Toxoplasmosis is a fascinatingly tragic condition.  A mouse infected by the protoctistan, Toxoplasma gondii, behaves strangely.  Instead of scampering away at the first whiff of feline scent, as an uninfected murine certainly would, the mouse is dangerously attracted to eau de chat.  As its predator steadily approaches, the unfortunate mouse simply awaits, even welcomes, its catastrophic end.

Humans may also be infected by T. gondii.  Those with toxoplasmosis often exhibit an unreasonable penchant for obviously risky behavior.  Neurally transfixed by the parasite, an infected person may not only stare danger in the eyes, but willingly step within its opened jaws.

Though many metaphors, some more purple and florid than others, have been offered to describe the debt ceiling crisis currently threatening the United States, toxoplasmosis may be as good as any.  Like a parasitized mouse, the American economy and polity seem to be marching steadily and willingly towards a possible August 2, 2011, default.  Unlike the mouse, however, if the United States is consumed by default, it will likely take the rest of the world with it.  The weird serenity currently infecting the political classes in the District of Columbia, some of whom appear not simply to have accepted default, but positively to welcome it, suggests a debilitating political disease capable of leading to much economic pain.

While it remains unlikely that the United States will actually default next week, equity, bond, gold, and even food markets, as well as credit rating agencies, have already begun to price in significant economic damage.

Can a treatment be found in time?  If so, will it merely control the symptoms, or cure the disease?  Whatever the result, the current debt ceiling crisis amounts to the largest and most dangerous game of cat and mouse ever played.

Friday, July 15, 2011

When Two Tribes Go To War

A war is raging in the United States between two great parties.  These two have radically different belief systems, seem unable to agree on fundamental issues, and are increasingly competing on every level for the support of the people.  Their hotly contested battlegrounds include budgets, culture, technology, foreign policy, and social policy.  Each party has a long and glorious tradition, and constantly yearns to wrest influence from the other.  One party currently controls the White House and leads the United States Supreme Court, while the other has a stranglehold over Silicon Valley.  Never the twain shall meet;  ever the twain shall battle for supremacy.

Democrats and Republicans?  No, far more important:  Harvard and Stanford.

Technology provides a vivid illustration of this clash of titans.  Over the past two decades, Harvard has seen its once seemingly-unassailable champion - Microsoft - challenged, and toppled, by Stanford's relentless battler - Google.  However, Stanford is now threatened anew by a Cantabridgian contestant - Facebook - whose spectacular rise may end Google's hegemony.  Where Google accommodated itself (for a time, at least) to the requirements of the Chinese government, brash Facebook has helped sweep aside dictatorial regimes in Tunisia and Egypt, with the mere flick of its newsfeed.  Perhaps more importantly, Facebook now commands more attention (in traffic and stickiness) than Google.

The battle is far from over.  Not only is Stanford's current champion fighting back with new initiatives, such as Google+ - a social media service aimed at the heart of Facebook, and currently exploding in popularity -  it continues to attract, educate, and graduate new generations of entrepreneurial talent unmatched anywhere in the world.  Unmatched anywhere, that is, except at Harvard.

When the two great tribes go to war, far more is at stake than scoring a point.

Wednesday, July 6, 2011

Prometheus Rebound To The Supreme Court

On its second opportunity, the United States Supreme Court has granted a writ of certiorari to hear an appeal of Prometheus Laboratories, Inc. v. Mayo Collaborative Services and Mayo Clinic Rochester ("Prometheus v. Mayo"), a decision by the Court of Appeals for the Federal Circuit ("Federal Circuit") that ratified - for the second time - the patentability of methods to determine optimal drug dosage levels in therapeutic treatments.  This bodes ill for the patentability of inventions involving methods of medical diagnosis and therapy.
As discussed previously on LEXVIVO, on December 17, 2010, Prometheus, Inc., a San Diego-based biotechnology company, prevailed in appealing a district court's grant of summary judgment that had found claims in Prometheus' exclusively licensed patents (U.S. Pat. Nos. 6,355,623 and 6,680,302) invalid as drawn to non-statutory subject matter under 35 U.S.C. §101.  In Prometheus v. Mayo, a unanimous panel of the Federal Circuit "again [held] that Prometheus' method claims recite patentable subject matter under §101."  The court's previous finding that Prometheus' claims constituted statutory subject matter was successfully appealed by defendants-appellees Mayo Collaborative Services and Mayo Clinic Rochester (hereafter, "Mayo") to the Supreme Court, which vacated and remanded the Federal Circuit's decision on April 29, 2010, "for further consideration in light of Bilski v. Kappos," a business method patent case the Supreme Court had decided the day before.  It would appear that the Supreme Court has now called two strikes on the Federal Circuit on this issue.

The claims at issue cover methods for determining the optimal dosage of thiopurine drugs, such as 6-mercaptopurine and azathiopurine, used to treat inflammatory bowel diseases that include Crohn's disease and ulcerative colitis.  For example, claim 1 of the '623 patent involves (1) administering a drug capable of producing 6-thioguanine inside a patient suffering from a gastrointestinal disorder, (2) determining the concentration of 6-thioguanine in the patient's blood, and (3) indicating the need to increase or decrease the drug's dosage depending on whether the drug's blood concentration is outside of the therapeutically desired range of 230-400 pmol per 80,000,000 red blood cells.

Now, the Supreme Court will have an opportunity to clarify the patentability of inventions directed to methods of diagnosing medical conditions, as well as those that combine such diagnostic methods with methods of treatment.  Any optimism the biotechnology industry might have derived from the Federal Circuit's December 17, 2010, decision in Prometheus v. Mayo may now be tempered by the specter of the Supreme Court adopting the argument that Justice Stephen Breyer (joined by now-retired Justices John Paul Stephens and David Souter) made in his vigorous dissent to the dismissal of the writ of certiorari of a kindred case, Laboratory Corporation v. Metabolite Laboratories, Inc..  In his dissent, Breyer described the medical diagnostic method contested in that case as follows:
A similar conclusion in Prometheus v. Mayo by a majority of the Supreme Court could redraw the boundaries of patentable biological subject matter in United States patent law.
law at issue in the abstract patent language of a "process." But they cannot avoid the fact that the process is no more than an instruction to read some numbers in light of medical knowledge.
At most, respondents have simply described the natural

Friday, May 27, 2011

Big Dilemma Over Smallpox

Smallpox virus (Variola vera) has been one of the most horrific diseases to afflict humanity.  Fortunately, worldwide vaccination programs appear to have eradicated it among humans.  However, both the United States and Russia maintain carefully-guarded stocks of the virus for research purposes.  Over the years, international pressure to destroy these last laboratory stocks of smallpox virus has been building.  Many assumed that the World Health Assembly, the decision making body of the United Nations World Health Organization, which held its 64th conference from May 16th to 24th, 2011, would vote to do just that, thus consigning Variola vera to the dustbin of disease history.  Instead, the Assembly granted the virus a stay of execution until at least 2014: 

Reaffirmed that the remaining stock of smallpox virus should be destroyed 
The Health Assembly strongly reaffirmed the decision of previous Assemblies that the remaining stock of smallpox (variola) virus should be destroyed when crucial research based on the virus has been completed. The state of variola virus research will be reviewed at the 67th World Health Assembly in 2014 and in light of that, determining a date for destruction of the remaining virus stocks will be discussed.

Bioethicists disagree about whether or not to destroy the virus.  As long as it survives, the risk of its release - either accidental or deliberate - will persist.  If it is destroyed, the best opportunity to derive future insights into its, and other disease organisms', biology may be forgone forever.  In the meantime, the virus that has taken about half a billion lives in recent history will continue to hang, like the Sword of Damocles, over the future health of humanity.  

Sunday, May 1, 2011

Osama Bin Laden - Pioneer Of Bioterrorism

It appears that Osama bin Laden was killed on May 1, 2011.  Among his nefarious "accomplishments", bin Laden was the first internationally prominent proponent of bioterrorism. Worries about the deliberate misuse of biological agents have prompted the United States Federal government to set up new anti-bioterrorism facilities, such as the Center for Excellence for Emerging and Zoonotic Animal Disease, to be located in Kansas.  Despite the demise of bin Laden, the threat of bioterrorism is likely to remain firmly fixed both in the public consciousness and in the wishlists of terrorists.

Wednesday, April 27, 2011

On Fast Track, Patent Office Run Over By Budget Deal

As LEXVIVO previously reported, the United States Patent and Trademark Office ("USPTO") entered 2011 by proposing several significant reforms designed to improve the efficiency and quality of the patent application process.  Included in these proposed changes were a new fast-track patent pathway and new satellite Patent Offices.  The Federal budget compromise recently agreed between Congress and President Obama, the Full-Year Continuing Appropriations Act, 2011 (Pub. Law 112-10), brings this brief patent office perestroika to a halt.  Here is an email USPTO Director David Kappos sent to his employees last week:
As you may know, the FY 2011 budget was signed by the president on April 15, 2011 and contains the USPTO’s appropriation through the end of this fiscal year, September 30, 2011. With the enactment of the Full-Year Continuing Appropriations Act, 2011 (Pub. Law 112-10), USPTO spending authority for FY 2011 has been limited to $2.09 billion. In view of the funding cuts reflected in the final budget and affecting the U.S. government as a whole, we will be unable to expend the additional $85-100 million in fees that we will be collecting during this fiscal year—funds that we had anticipated being able to use to fund operations this year.
In short, the Continuing Appropriations Act for FY 2011 does not allow us to maintain spending at the levels planned for this year. Further, I am mindful of the fact that we may very well be operating at the FY 2011 level for the foreseeable future. As a result, we have had to make some difficult decisions in order to ensure the responsible stewardship of the agency. It is against that backdrop that I must reluctantly announce, effective immediately, that:
• All overtime is suspended until further notice;
• Hiring—both for new positions and for backfills—is frozen for the rest of the year unless an exemption is given by the Office of the Under Secretary;

• Funding for employee training will be limited to mandatory training for the remainder of the year;
• Funding for contracting of Patent Cooperation Treaty (PCT) search is significantly reduced;
• The opening of the planned Nationwide Workforce satellite office in Detroit and any consideration of other satellite locations are postponed until further notice;

• Only limited funding will be available for mission-critical IT capital investments;

• The Track One expedited patent examination program, scheduled to go into effect on May 4, 2011, is postponed until further notice.
In addition, all business units will be required to reduce all other non-compensation-related expenses, including travel, conferences and contracts.
Trademark activities are unaffected and will maintain normal operations.
I want each of you to know that we have not come by these decisions easily. I recognize that these measures will place additional burdens on your offices, your staff, and your ability to carry out the agency’s mission. However, I believe that they are absolutely necessary to ensuring that the agency can continue to operate through the remainder of this fiscal year and into FY 2012.
I thank you for continuing cooperation and patience, and I appreciate your dedication and service during this challenging time.
David Kappos
Under Secretary of Commerce for Intellectual Property and Director of the USPTO
Ironically, the USPTO does not contribute materially to the Federal deficit.  Instead, it is financially self-supporting, covering its operations through the collection of fees from patent and trademark applicants.  However, Congress has traditionally appropriated these fees for other governmental purposes, leaving the USPTO continually short of money to pay for improvements, such as skilled new patent examiners to help alleviate the huge backlog of patent applications.  In an age of austerity, the USPTO might be celebrated as a governmental exemplar of financial self-sufficiency.  Instead, it continues to act as a piggy bank continually filled by inventors, only to be raided by Congress.  It is difficult to see how this strategy benefits technological innovation.

Friday, April 22, 2011

Opening The Closed While Closing The Open

The Public Patent Foundation describes its mission as "Representing the Public's Interests in the Patent System."  As its website explains,
Undeserved Patents and Unsound Patent Policy Harm the Public
... by making things more expensive, if not impossible to afford;
... by preventing scientists from advancing technology;
... by unfairly prejudicing small businesses; and
... by restraining civil liberties and individual freedoms.
PUBPAT Represents the Public's Interests Against Undeserved Patents and Unsound Patent Policy
Patent Attorney David Garrod, who has served as Senior Litigation Counsel for the Public Patent Foundation, assisted the Public Patent Foundation in its campaign against false patent marking, and authored several free claim construction dictionaries.  Meanwhile, his company, Bedrock Computer Technologies, LLC, asserted its own patent (United States Patent No. 5,893,120, entitled  "Methods and Apparatus for Information Storage and Retrieval Using a Hashing Technique with External Chaining and On-The-Fly Removal of Expired Data") against software giants such as Google, Amazon, and PayPal.  On April 21, 2011, Bedrock won a $5 million jury award against Google, whose use of open source Linux software code allegedly infringed claims of the '120 patent.

The result is a fascinating and apparently quixotic juxtaposition of opening the closed while simultaneously closing the open, and is as clear as mud.

Thursday, April 7, 2011

The Patent Conference

Early in A Connecticut Yankee In King Arthur's Court, the titular Yankee, Hank Morgan, upon becoming King Arthur's "perpectual minister and executive", explains the importance he places on patents:
the very first official thing I did, in my administration—and it was on the very first day of it, too—was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backways.
Although this sentiment appears in a work of humor, many earnestly share Morgan's views on the importance of patents.  The recent explosion of patent scholarship reflects the growing perception that patents and patent systems are crucial instruments of public policy - instruments capable of generating benefits and costs for society.  Now, the increasingly important field of patent research has its own annual home:  The Patent Conference.

On April 8, 2011, the inaugural Patent Conference will be held at the University of Kansas School of Law.  The Patent Conference will be an annual event featuring the bleeding edge of patent scholarship.  This year, The Patent Conference schedule features research on patent infringement, patent damages, patent courts, empirical patent analysis, patent litigation, interdisciplinary patent studies, and Asian patent law.  Here is a press release from the inaugural host institution, the University of Kansas School of Law, describing the event:

Conference to bring world’s top patent scholars to School of Law

LAWRENCE — A critical mass of the world’s foremost patent scholars will present their latest research at the inaugural Patent Conference at the University of Kansas School of Law. 
The Patent Conference, or PatCon, will run from 8 a.m. to 6 p.m. Friday, April 8, in the Stinson Morrison Hecker Lecture Hall, 104 Green Hall. The event is free and open to the public.
The conference is a cooperative effort between the KU School of Law, the Chicago-Kent College of Law, the University of San Diego School of Law and Boston College Law School to hold an annual conference at which patent scholars in law, economics, management science and other disciplines can share their research. After this year’s inaugural conference, future gatherings will rotate among the four schools, returning to KU in 2015. 
“The scholarly study of patents has exploded in importance over the last decade,” said Andrew Torrance, a KU associate professor of law and an internationally known scholar in patent law, intellectual property law, food and drug law, and biodiversity law. “It has undergone a rapid transformation from a small niche field within intellectual property, largely overshadowed by copyright and trademark law, to an academic discipline that now attracts the enthusiastic attention of schools of law, business, public policy, engineering and medicine, as well as departments of economics, history, science and technology studies — and even science and mathematics.
“Clearly, the time has arrived for the field to have a permanent academic home, which is why we decided to found The Patent Conference.”
Torrance cofounded the conference with his colleagues David Schwartz, Chicago-Kent College of Law; Ted Sichelman, University of San Diego School of Law; and David Olson, Boston College Law School.
Nearly 40 patent scholars will make presentations in a series of panel discussions. Broad themes will include patent infringement, patent damages, patent courts, empirical patent analysis, patent litigation, interdisciplinary patent studies and Asian patent law. A complete schedule is available on the law school website.
“We are delighted that the response to the inaugural Patent Conference has been so positive,” Torrance said. “With almost 40 confirmed speakers from dozens of institutions in attendance, many of the finest patent scholars in the world will be presenting their work right here at KU School of Law. In a world that depends on technological innovation more than ever before, the cofounders and I hope this event will help spur the field of patent research to even greater success.”
The Patent Conference is sponsored by Shook, Hardy & Bacon LLP and the KU School of Law.
Patent law has attracted considerable controversy of late.  Patents are capable of inspiring both passionate support from those who believe they are necessary to spur technological innovation, on the one hand, and grave concern from those who oppose the monopoly rights to exclude others they confer upon their owners and favor more open models of innovation, on the other.  The importance of these and other issues has led to the founding of The Patent Conference, which will provide an annual venue for the free exchange of ideas and research about patents.

Friday, April 1, 2011

Thomas Eisner: Chemistry, Ecology, and Conservation

Thomas Eisner, a professor of entomology at Cornell University, died on March 25, 2011.  Eisner was both a scientific and a conservation pioneer.   He helped found the field of chemical ecology, which studies how organisms use the natural chemicals they synthesize, whether in communication, defense, or predation.  Later, he helped the National Biodiversity Institute of Costa Rica ("INBio") negotiate an agreement with pharmaceutical company Merck & Co., Inc., under which INBio received a $1,000,000 payment and $135,000 in scientific laboratory equipment in exchange for bioprospecting for, and preparing chemical extracts of, promising natural chemicals from Costa Rican rainforest organisms.  In addition, the agreement promises Costa Rica a modest royalty should any of these natural chemicals form the basis for a commercially successful drug.

Although no such drug has yet emerged from this relationship, the Merck-INBio agreement established a new paradigm in bioprospecting, in which developing countries with abundant biodiversity control access to that valuable natural resource through negotiated agreements.  Subsequent biodiversity access agreements increased both in ambition and legal sophistication.  For example, the multinational pharmaceutical company Novartis AG entered into an access agreement with the Brazilian Association for the Sustainable Use of the Biodiversity of Amazonia ("BIOAMAZONIA") under whose terms BIOAMAZONIA received an upfront payment of $4,000,000 in return for supplying Novartis with 30,000 promising biological samples over a three-year period;  furthermore, should any of these samples lead to a drug that receives both patent protection from the United States Patent and Trademark Office and regulatory approval from the United States Food and Drug Administration, Novartis will pay BIOAMAZONIA a one-percent royalty on any profits.

Professor Eisner embodied a rare dual genius that combined pure scientific study of biodiversity with creative, practical, and effective actions to conserve the sources of that biodiversity.  Many in the fields of biology and conservation mourn his death.

Tuesday, March 22, 2011

Judge Opts Out Of Google Books Opt Out

In a sharp rebuke to the Google Books Project, an ambitious effort by Google Inc. to digitize all books and make them searchable on the web, Judge Denny Chin today (March 22, 2011) rejected the latest agreed settlement to a class action lawsuit between defendant, Google, and plaintiffs, The Authors Guild (attempting to represent the "Author Sub-Class") and the Association of American Publishers (attempting to represent the "Publisher Sub-Class").  The case, The Authors Guild et al. v. Google Inc, was filed in the United States District Court for the Southern District of New York, a court often chosen to decide high profile litigation, and has been presided over by Judge Chin, a Second Circuit Court of Appeals judge who is sitting in the lower court by designation.

While acknowledging the great benefits of a "universal digital library," Judge Chin noted that the settlement, in its current 166-page form,
would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.
Judge Chin deemed the notice given to members of the class to be adequate.  However, he described the quality of class representation as "troubling."  He doubted that the opt-out mechanism contemplated by the settlement should override the exclusive rights granted copyright owners under Copyright Act provisions 17 U.S.C. 106(1) and 17 U.S.C. 201(e).  Also noting possible antitrust, privacy, and international law concerns raised by the settlement, Judge Chin strongly suggested that Congress, not court, would be the best venue for deciding issues of copyright policy as important as those raised by the Google Books Project.  After evaluating a variety of arguments favoring and disfavoring the settlement, he concluded that it "is not fair, adequate, and reasonable."

Notwithstanding the rejection of this particular settlement, Judge Chin did hint at one feature a defensible settlement might have.  Perhaps the most controversial feature of the settlement was the obligation of copyright owners to opt out of the Google Books Project.  Borrowing from the amicus curiae brief filed by the United States, Judge Chin suggested that "many of the concerns...would be ameliorated if the [settlement] were converted...to an "opt-in" settlement."  So, with that guidance, the parties will likely reopen settlement negotiations.

That seer of intellectual property, Marilyn Manson, once observed that "No person can own the copyright to what God means."  Although not aspiring to heights quite as lofty as these, Google, like Icarus, may still have flown too close to the sun with its latest copyright settlement.  Discovering what can constitute a legally durable settlement will remain a challenge, given the great uncertainty and flux in copyright law.  This may be especially true if Mark Twain's observation of a century ago remains true today:  "Only one thing is impossible for God:  To find any sense in any copyright law on the planet."

Friday, March 11, 2011

Après Loi Le Déluge

Preparing for rare natural disasters, such as the massive earthquake and tsunami that hit Japan on March 11, 2011, is vitally important, if human tragedies are to be minimized.  The invention of technologies useful in disasters, such as earthquake-resilient buildings, pharmaceutical drugs to treat outbreaks of disease, and even logistical methods, may be spurred by policy tools as diverse as patents, innovation prizes, and protection for open, user, and collaborative innovation.  Thus far, patents have received the most attention.  Here is the abstract an article entitled Patents to the Rescue - Disasters and Patent Law:
The patent system can play a vital role in preparing for, mitigating, reacting to, and preventing disasters. In the far term, it ensures that society continually improves its technological capacity to deal with disasters. In the near term, the patent system includes a diversity of legal options for ensuring access to patented inventions needed in disasters. Foreseeable and surprise disasters require different legal approaches to ensure timely access to patented inventions while ensuring that society is able to continue enhancing both its general and specific technological capacities. Accomplishing optimal results requires careful balancing of far term and near term interests, respect for both international and United States patent law, a clear understanding of the interrelation of different aspects of patent law, insight into the incentives that drive technological innovation, and appreciation of the disparate challenges posed by different kinds of disasters. When employed wisely, the patent system can offer society powerful assistance to prevent, prepare for, and mitigate disasters.
The entire article is available here for free download.  Once the immediate crisis passes, in Japan and its Pacific neighbors, policy makers should reevaluate how best to promote technological innovations useful in preventing and responding to natural disasters.  The more natural disaster-related innovation can be encouraged, the more likely it is that the next natural disaster will take fewer lives than the disaster that preceded it.

Sunday, February 20, 2011

Call Me Ishmael No Longer

The International Convention for the Regulation of Whaling ("ICRW") was intended to promote, not discourage, whaling.  Countries engaged in commercial whaling, concerned about precipitous declines of many whale populations negotiated, and, on December 2, 1946, signed, the ICRW to ensure the "proper conservation of whale stocks and thus make possible the orderly development of the whaling industry."  The governing body established under the ICRW, the International Whaling Commission ("IWC"), determines which species and populations of whales may be hunted, if at all, mandates where and when such hunting may or may not take place, and monitors the health of whale stocks.

Due largely to conservation measures implemented by the IWC, many whale stocks had begun to recover by the 1980s.  However, public attitudes towards whales had changed radically since the inception of the ICRW.  The discovery of complex Humpback Whale songs - first intercepted in Bermuda by a listening post for Russian submarines, and first studied by biologists Roger Payne and Scott McVay - transformed lethargic sources of ambergris, blubber, and ivory into hauntingly articulate, socially complex, and seemingly intelligent peers.  Conservation groups and even prominent bands, such as Yes and The Grateful Dead, promoted cetacean conservation.  As the Dead sang, in "Save the Whales," 

Lots of whales in the deep blue sea, we kill them for the companies.Drag 'em alongside and chop 'em in two, melt them down and sail it to you.

In 1986, anti-whaling sentiment prompted the IWC to declare a commercial moratorium on whaling.  The IWC expanded its protection of whales in 1994, when it created the huge Southern Whale Sanctuary.

Since then, a small hard-core of pro-whaling nations - Iceland, Norway, and Japan - have fought unsuccessfully to overturn the moratorium, and, despite growing widespread opposition to whaling among their own citizens, have resumed harpooning whales.  Since the moratorium came into effect, Japan has justified its annual whale hunt as "scientific permit whaling."  Its extensive whaling fleet has harpooned and killed thousands of whales, increasingly in the Southern oceans.

Sea Shepherd, an environmental group dedicated to ending whaling, has followed the whaling fleets for years, and interfered with its hunt, with increasingly effective results.  The profile of Sea Shepherd and its Canadian founder, Paul Watson, have risen to unprecedented heights with the airing of the Animal Planet television series, Whale Wars.  This week, their efforts prevailed:  the Japanese whaling fleet conceded defeat, for this season at least, and headed home.  As the Japanese newspaper, Yomiuri Shimbun, reported on February 20, 2011,
With this season's research whaling in the Antarctic Ocean called off due to harassment by the Sea Shepherd Conservation Society, Japan's whaling activities in the area may not see another year.  In addition to Sea Shepherd's acts of sabotage, low domestic demand for whale meat--which used to be a valuable source of protein during the food-scarce postwar years--also has made the prospect of continuing whaling extremely gloomy, officials said...[A Fisheries] ministry official said, "With the suspension of research whaling, there is no possibility of whaling continuing from next season as it has in the past."
While not yet saved, the whales may now be a lot safer.

Saturday, February 5, 2011

Eight-Track Tape, Meet Three-Track Patent

A lot can happen in five years.  One could write a great novel - or two.  One could run around the world.  One could complete an MD degree, and begin saving lives.  One could get pregnant, have a baby, watch that baby learn to crawl, walk, talk, and read, and begin kindergarten.  Or, one could apply for, and receive a final determination about, a patent.  Enter the new "Three-Track" patent system being proposed by the United States Patent and Trademark Office ("USPTO").

Gary Locke, U.S. Secretary of Commerce, has described the Three-Track system as a strategy for shifting the speed of patent prosecution for higher quality patents from lentissimo to allegro:
“The Patent and Trademark Office plays a key role in promoting innovation and entrepreneurship,” Locke said. “This new system will bring the most valuable patents, as determined by inventors, to market faster and will help shrink the backlog by catering to the business needs of America’s innovators.”
The USPTO placed a notice of its prioritized "Track I" proposal in the Federal Register on February 4, 2011, describing this new fast track to patenting as follows:

Under Track I prioritized examination, an application would be accorded special status and placed on the examiner’s special docket throughout its entire course of prosecution before the examiner until a final disposition is reached in the application. The aggregate goal for handling applications under Track I prioritized examination would be to provide a final disposition within twelve months of prioritized status being granted.
The main elements of Track I would be (1) a very expensive examination fee of $4,800 (that is, almost five times more expensive than the filing, search, and examination fees currently paid by large entities (companies with more 500 employees), and almost ten times what small entities (with 500 or fewer employees) currently pay), (2) strict limits of 4 independent claims and 30 dependent claims per application, and (3) mandatory filing of patent applications using the USPTO's electronic filing system ("EFS-Web").

Track III would allow patent applicants request that docketing of an application be delayed, allowing the application to hibernate from prosecution for up to 30 months (corresponding to the Patent Cooperation Treaty ("PCT") deadline for taking a patent application national).  Unless a patent applicant specifically affirmatively opted for Track I or Track III, that applicant would be placed by default on Track II, the current patent prosecution pathway.

The USPTO has proposed that the Track I pathway would be limited to 10,000 patent applications during its first year, and the USPTO would hire "additional examiners above the number of planned hires...so that the non-prioritized applications would not be delayed due to resources being diverted to process the prioritized applications."  This may be somewhat optimistic given the U.S. Congress' penchant for diverting fees collected by the USPTO to other governmental purposes, and 10,000 expedited patent applications, yielding almost $50,000,000 in the first year of the program alone, would present an extremely tempting target in this dawning age of federal austerity.

Monday, January 31, 2011

USDA Decides GM-Alfalfa Is No Little Rascal

Alfalfa (Medicago sativa) is one of the most important crop plants in the world. Its uses range from cattle forage to human food. Worldwide, it is cultivated more than any other legume crop. Monsanto Corporation developed a patented genetically modified ("GM") variety of alfalfa - Roundup Ready Alfalfa - that is resistant to glyphosate (N-(phosphonomethyl) glycine), a powerful herbicide used to eliminate weeds from agricultural fields.

As discussed earlier at LEXVIVO, Roundup Ready Alfalfa has inspired considerable legal controversy - controversy that has already reached the U.S. Supreme Court. On January 27, 2011, the United States Department of Agriculture ("USDA"), after completing an Environmental Impact Statement, announced in a press release that it has opted for full deregulation of Roundup Ready Alfalfa.  This decision will place no more restrictions on Monsanto's GM-alfalfa than on non-GM varieties.  As the USDA's press release relates,
"After conducting a thorough and transparent examination of alfalfa through a multi-alternative environmental impact statement (EIS) and several public comment opportunities, APHIS has determined that Roundup Ready alfalfa is as safe as traditionally bred alfalfa," Agriculture Secretary Tom Vilsack said.
This decision comes on the heels of a January 19, 2011, letter that U.S. Representative Frank Lucas (R-Okla.) and U.S. Senators Saxby Chambliss (R-Ga.) and Pat Roberts (R-Kansas) sent to USDA Secretary Tom Vilsack, warning that taking into account non-scientific factors in the regulation of GM-alfalfa would exceed the statutory authority granted to his agency by the Plant Protection Act:
It is unfortunate that those critical of the technology have decided to litigate and as you rightly point out that courts may unwisely interfere in normal commerce. However, the alternative you propose and include in the EIS is equally disturbing since it politicizes the regulatory process and goes beyond your statutory authority and indeed Congress’ intent in the Plant Protection Act (PPA). The PPA requires the Secretary to make a scientific determination if the product under review is a plant pest (7 U.S.C. 7711(c)(3)). If the final decision is that the product is not a plant pest, nor would the movement of the product in question impose the risk of dissemination of a plant pest, then USDA has no authority to impose further restrictions (7 U.S.C. 7712(a)).
Further legal challenges of GM-alfalfa are certain, especially from organic farmers who worry that GM-pollen will infect the their non-GM crops.  As a signal that it takes the growing war between advocates of agricultural biotechnology and organic farming seriously, USDA has decided to resurrect its Advisory Committee on Biotechnology and 21st Century Agriculture and the National Genetic Resources Advisory Committee to
tackle a broad range of issues, from ensuring the availability of high quality seed, to helping ensure that growers have access to the best tools available to support their production choices, to whether risk management and indemnification options can play a role.
Victory in this battle goes to agricultural biotechnology, but the wider war will assuredly continue.  In the meantime, the Food and Agriculture Organization of the United Nations ("FAO") has reported that food prices reached near-record heights in 2010.

Thursday, January 27, 2011

Innovation As An Innovation

On January 25, 2011, U.S. President Barack Obama delivered a State of the Union Address packed with references to innovation.  In fact, he mentioned "innovation" no fewer than nine times during his speech.  In each of his 2010 and 2009 Addresses, President Obama mentioned innovation only twice.  During his entire eight years as U.S. President, George W. Bush mentioned innovation quite sparingly in State of the Union Addresses:  twice each in 2006 and 2003.  Even technophile President William J. Clinton employed the word only four times in his two terms in office.  So, why is innovation suddenly so popular with President Obama?

There are a number of possible explanations for why innovation has caught the presidential, and national, Zeitgeist.  One reason is that technological innovation is closely associated with economic growth.  From Robert Solow's neoclassical growth model, which estimated that about four fifths of productivity gains stem from new technology, to Paul Romer's suggestion that investments in research and development may be particularly effective means of encouraging technological improvements, much modern economic thought recommends the promotion of innovation as an especially wise policy goal.

Another motivation is the fashionable fear that the United States is at risk from being overtaken by China, whose students (along with students from South Korea, Finland, Canada, and quite a few other countries) recently outperformed their American colleagues in science, mathematics, and other subjects in the Organisation for Economic Cooperation and Development's Programme for International Student Assessment ("PISA").  The sensation caused several weeks ago by Amy Chua's publication of Battle Hymn of the Tiger Mother, in which she critiques the results of what she pejoratively terms "Western" parenting, tapped this Angst and found a gusher.

A third explanation may arise from a dawning realization that classical models of innovation may not be succeeding as well as they once did.  Witness the National Institutes of Health's new National Center for Advancing Translational Sciences ("NCATS"), whose euphemistic goal, "to leverage science to bring new ideas and materials to the attention of industry by demonstrating their value," is a reaction to the worrying relative decline in the rate of discovery, development, and market-availability of new pharmaceutical drugs, coupled with a looming "patent cliff" off which many existing medicines are beginning to tumble.

Finally, the fruits of innovation, such as the iPad, the Nissan Leaf, and Roundup Ready alfalfa, are usually viewed as cool, compelling, and a welcome distraction from the distressing realities of slow economic growth and high unemployment.  Where the Romans had panem et circenses, one can now enjoy the latest update of Angry Birds.

Thursday, January 20, 2011

Biodiversity Law In Paradise - Day Six

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 19, 2011:

Today, we got up early to drop our fearless leader and professor off at the airport.  We immediately left the airport to make our way to the beach beside the University of the Virgin Islands ("UVI") MacLean Marine Science Center docks.  We are grateful that the local United States Virgin Islands laws require that the public be given access to all beaches on the islands.  After visiting UVI multiple times this past week as a transit point, it was great to be able to go to the beautiful beach there and do some snorkeling close to the shore.
Formal lectures and field activities having finished, we lounged around the beach as we waited for the sun to rise over the palm trees to illuminate the water for clear-visibility snorkeling. While on the beach, we watched a Brown Booby (Sula leucogaster) dive repeatedly from the air into the water to catch fish.  Also, we saw a Puerto Rican Anole (Anolis pulchellus), a lizard that falls into the grass/bush morphotype.  Two other anole lizards, the Puerto Rican Crested Anole (Anolis cristatellus)a trunk/ground morphotype, and the Barred Anole (Anolis stratulus), a crown/trunk morphotype, are native to the Virgin Islands, and we saw these as well.  Part of our reading assignments were about the anole lizards of the Virgin Islands, and we used these organisms in legal hypos throughout the week of the fieldtrip.  We tried to catch these lizards all week to examine them up close, but without success.  Finally, the Anolis pulchellus that we found near the beach’s tree line took pity on us, and decided to jump on an arm. 
Once the sun was shining over the bay, we went snorkeling. We saw schools of Ballyhoo (Hemiramphus brasiliensis) fish almost immediately.  The bay, which is called Brewer's Bay, itself was largely sandy-bottomed, and had almost no coral.  However, plenty of small fish were nibbling at the few pieces of coral that are present.  One fish appeared to be territorial, aggressively protecting its part of the coral from all other fish who swam too close.  As we swan out towards the moored boats, we saw some Green Sea Turtles (Chelonia mydas), a turtle federally-listed as endangered under the federal Endangered Species Act, enjoying morning swims.  One particular turtle alarmed us by lunging towards us.  It became very clear that Green Sea Turtles are much more agile in the water then we were.  Luckily, the turtle decided we represented no threat, and subsequently left us alone.  Surprising, we also saw a Southern Stingray (Dasyatis americana), our first of the fieldtrip.  We found it amazing how each snorkeling trip this week revealed new species.  It is precisely this richness and variety of biodiversity, along with the many legal issues that confront and surround it, that makes the Virgin Islands such an ideal place to study biodiversity law.
Unfortunately, all good things must come to an end.  Our trip has officially ended, but we will carry with us all the knowledge we gathered in our unique ‘classroom’ this week.
That brings to an end the daily dispatches from the 2011 Biodiversity Law class.  See you again this time next year for the 2012 class of Biodiversity Law.

Tuesday, January 18, 2011

Biodiversity Law In Paradise - Day Five

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 18, 2011:
 
Today, Ron, an experienced sea captain, and the owner of our hotel, took us on his speedboat to the U.S. Virgin Island of Saint John.  St. John is unique in the Caribbean in consisting mainly of national park.  Made possible by land donated by Laurance Rockefeller, Virgin Islands National Park covers most of St. John, and has allowed the island to maintain more of its natural character and native biodiversity than any other Caribbean island.  Unlike the largely unsuccessful laissez-faire approach to conservation that characterizes St. Thomas and St. Croix, the National Park Service provides strong federal enforcement of national biodiversity law on St. John.  For example, where St. Thomas hosts hillsides dotted with structures and cleared vegetation, the only structures visible on the North side of St. John, aside from a few privately-owned enclaves yet to be acquired by the National Park, are abandoned colonial sugar mills and the ecotourism tents of Maho Bay.  The habitats on St. John vary from mature seasonally-moist rainforest to dry sclerophyll forest, surrounded by an unspoiled shoreline of rocky cliffs and gorgeous white sand beaches, with spectacular coral reefs just offshore.
We moored the boat at Leinster Bay, and snorkeled around Waterlemon Cay.  The snorkeling here differed markedly from our previous snorkling sites South of St. Thomas.  Here, the fish tended to be much bigger and more plentiful, and we were able more easily to identify more species.  In addition, we saw many large fish hiding in crevices in the coral.  Much of the coral surrounding Waterlemon Cay was soft and flexible, allowing it to bend and ‘wave’ in the strong water currents and larger waves.  We observed more endangered Staghorn Coral (Acropora cervicornis) and Elkhorn Coral (Acropora palmata), though not in the same abundance as at Flat Key.  One more fascinating characteristic of Waterlemon Cay was the abundance of tiny translucent Sea Walnuts (Mnemiopsis leidy), which, fortunately, tend not to sting.
After snorkeling, we returned to our al fresco classroom, where we discussed our favorite creatures (especially legal issues involved in their conservation), and then calculated the species richness, evenness, and diversity of the three St. Thomas locations (Botany Bay, Crown Mountain, and Magen's Bay) at which we carried out leaf surveys. The largest species richness and biodiversity was at Crown Mountain (the highest point in St. Thomas), followed by Magen's Bay (halfway down the mountain), and then Botany Bay  (near the beach). Crown Mountain is a moist rainforest area, whereas Magen's Bay and Botany Bay (in that order) are generally drier. Additionally, results revealed that Botany Bay had less species richness and biodiversity. Again, this was not very surprising because the area is near water and very sandy.  In terms of species richness, diversity, and evenness, the Magen's Bay area is intermediate to the other two sites in richness, evenness, and diversity.  Our calculations confirmed our expectation that the Virgin Islands host prodigious quantities of biodiversity, but that the local patterns of biodiversity vary immensely.
Stay tuned for more daily dispatches.

Monday, January 17, 2011

Biodiversity Law In Paradise - Day Four

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 17, 2011:

Today, we drove down to Estate Botany Bay in the far westend of Saint Thomas.  There, we visited the lowlands area surrounding the former Corning family beach house, Mermaid’s Chair, and The Nature Conservancy ("TNC") property called Little Saint Thomas, which is situated where the Caribbean Sea meets the Atlantic Ocean (and creates the best surfing in the Virgin Islands).  We learned how TNC pioneered the use of conservation easements to conserve parcels of land without having to pay the total cost of purchasing land fee simple. A conservation easement prevents activities on a parcel of land that might endanger biodiversity. Unlike their usual legal strategy of obtaining conservation easements from property owners, TNC actually does own Little Saint Thomas fee simple, having been given the land by the Corning family as a gift. Per USVI law, public access to the beach and ocean is required so that the public can use and enjoy the land.  However, those wishing to enjoy these access rights must walk (not drive) the 3 kilometers down to the beach, and then walk back up.  Fortunately, we were guests of private owners of Botany Bay, so we were allowed to explore the entire 160 hectare property and its spectacular tropical biodiversity.
One of the most interesting features of Little Saint Thomas was the abundance of rocks that allow for the formation of transient tide pools. These tide pools serve as an area where small, often juvenile, fish can live protected from larger predator fish.  Also, we saw an abundance of Soldier Crabs (Coenobita clypeatus) making their way inland, and uphill, to mate and lay eggs, a behavior they share, at least in part, with sea turtles.  Unfortunately, roads cut into the sides of the steep hills of Estate Botany Bay can create vertical barriers impossible to pass, thus thwarting their uphill reproductive trek.
After leaving Estate Botany Bay, we drove up to Crown Mountain, which is the highest point in the USVI, and home to a dense biodiverse moist rainforest, and then down to the trailhead of another TNC property above Magen’s Bay. At both of these sites, and at Botany Bay, we systematically collected fallen leaves as part of an experiment to estimate forest diversity. We then took bags of our leaves back to our hotel, where we carefully categorized and tallied the different types of leaves we collected at each of the three experimental sites.  Tomorrow, we will use a variety of statistical formulae to estimate forest tree richness, diversity, and evenness across these sites, and will then attempt to understand any differences we find.
Stay tuned for more daily dispatches.

Sunday, January 16, 2011

Biodiversity Law In Paradise - Day Three

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 16, 2011:


Today, Dr. Richard Nemeth, a specialist in ecology and management of tropical fisheries and coral reefs, and the Director of the Maclean Marine Science Center at the University of the Virgin Islands, took us out on his sailboat. He took us for a sail around a few of the small islands surrounding the southern side of St. Thomas.  After serving as his crew to sail out to Flat Cay, a small, uninhibited island, and federally-protected bird sanctuary, we moored to a fixed buoy, thus avoiding the need to drop anchor onto the spectacular, yet fragile, coral reef below.  We saw a bewildering diversity of fish, echinoderms, crustaceans, coral, and sponges.  Dr. Nemeth graciously and expertly pointed out a number of interesting species.  For instance, he pointed out a school of Blue-Headed Wrasse, and explained that their unusual closely-synchronized swimming pattern was part of a mating ritual, in which as many as twenty male fish attempted to follow a single female fish to fertilize the eggs she occasionally released into the water.  Although comical to watch, this mating aggregation behavior is crucial to producing the next generation of this species on the coral reef.  Dr. Nemeth also drew our attention to endangered Fused Staghorn Coral (Acropora prolifera), a rare species of coral that results from the hybridization of endangered Elkhorn Coral (Acropora palmata) and Staghorn Coral (Acropora cervicornis).  In addition, he showed us a coral nursery set up by The Nature Conservancy intended to produce individuals of these three coral species that can be used to establish new populations where they have previously been wiped out. We were also very excited to see, and swim with, two Green Sea Turtles (Chelonia mydas), an inspiring sight because these turtles are currently making a comeback in the waters surrounding the Virgin Islands.
After sailing back to the docks at the Maclean Marine Science Center, Dr. Nemeth showed us a captured Red Lionfish (Pterois voltans).  Red Lionfish are an increasingly problematic invasive species in the Virgin Islands, and throughout the Caribbean, and anyone spotting one of these fish in the wild is strongly encouraged to report their sighting to the fish and wildlife authorities. Native to the Indian and Pacific Oceans, the Red Lionfish has rapidly spread throughout the Caribbean Sea after Hurricane Andrew smashed a Miami aquarium, spilling six individual Red Lionfish into the Atlantic Ocean who subsequently spawned the entire invasive plague.  Since the Red Lionfish has no natural predators outside its natural range, and each individual is capable of consuming vast numbers of coral reef fish, its spread is currently devastating native fish biodiversity in the Caribbean region.  Though beautiful, this fish symbolizes the current lack of effective legal responses to the threat of invasive species.
Stay tuned for more daily dispatches.

Biodiversity Law In Paradise - Day Two

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 15, 2011:


Today we had the amazing opportunity to visit with the USVI’s most distinguished attorney, Jeff Weiss.  Jeff Weiss is a jack of all trades.  He handles issues varying from complex class action litigations, such as the recovery of insurance money from a hurricane that devastated the island of St. Thomas over a decade ago, and also advocates zealously for the protection of endangered species, such as the endangered Atlantic Hawksbill Sea Turtle (Eretmochelys imbricata) and Virgin Island Tree Boa (Epicrates monensis granti).  Jeff explained the intricacies of practicing law in a U.S. territory that is a biodiversity hotspot.  The most interesting aspect of our conversation was the balancing of interests between the Virgin Island Tree Boa and the Hawksbill Sea Turtle and the people who lost their homes because of Hurricane Marilyn.   Jeff ardently fought for the protection of endangered species whose habitat would have been destroyed through habitat destruction by relying on the Endangered Species Act. And he won!
Stay tuned for more daily dispatches.

Biodiversity Law In Paradise - Day One

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 14, 2011:

Professor Torrance informed us that we would partake in a traditional Saint Thomas Friday night activity;  we went bat catching.  We trekked along the beautiful shoreline of Magen's Bay before having the honor of meeting Saint Thomas' foremost advocate for terrestrial ecosystem preservation, Dr. Renata Platenberg.  She and two assistants, her devoted husband and a University of the Virgin Islands graduate student, mount mistnets in the forest once a month at dusk.  Various specimens of the island's five native species of bats occasionally find themselves tangled in the nets, perhaps a bit confused that their sonar failed them.  Promptly, the researchers delicately remove the tiny mammals (unfortunately, the process is delicate only for the bats-- a bat bite and some mild cursing was in progress when we arrived) and place them in pillow cases for weighing, measuring, and then safe release.  While the idea of petting a bat was both exciting and off-putting, the consensus among the class was that explaining a bat bite scar would be rather impressive, thus worth the risk.  We introduced ourselves to the little lady in the photo, who was soft as velvet and surprisingly cute.  Renata and her crew then examined the bats, recorded data, and returned them to their homes among the palm tree silhouettes.  The promise of Friday night island excitement panned out beautifully as we found a friend in Molossus molossus.  And we got a taste of the first step in determining whether a species might be threatened:  someone has to venture into the trenches, observe species first hand, and establish the scientific baseline that triggers the protective provisions of the Endangered Species Act.
Stay tuned for more daily dispatches.

Wednesday, January 12, 2011

An Apple Patent A Day Keeps Competitors At Bay

The big news about Apple Inc. is not their new agreement to sell iPhones that work on Verizon Wireless' 3G network.  Much more significant is newly released evidence that Apple aspires to become a patent superpower.  On January 12, 2010, patent information company IFI CLAIMS Patent Services published a new league table ranking the assignees of the most U.S. patents granted in 2010.  For the first time, Apple, at 46th, made it into the top 50, and was the assignee of 563 newly granted patents.  Although it leads the top 50 in growth rate, with a 94% increase in assigned patents since 2009, Apple still has a long climb to match the top patent assignee, International Business Machines Corporation, which received an astonishing 5,896 patents in 2010.  Nevertheless, Apple has already begun to flex its patent-strengthened muscles, particularly in the increasingly important market for smartphones.  Apple appears to be investing in an expansive patent estate to protect its prodigious profits, perhaps signaling its transition from iPhone to iSue.

Saturday, January 8, 2011

The Foody Blues - FDA Of Future Passed

On January 4, 2011, President Obama signed into law the Food Safety Modernization Act ("FSMA"), which the U.S. Senate and House both passed in late 2010. The FSMA amends the existing Food, Drug and Cosmetics Act in numerous ways, but four changes stand out in particular:
(1) FDA must develop and employ science-based standards that govern the growing and harvesting of fruits and vegetables, and these standards must take into account both anthropogenic and "natural" risks to food safety,
(2) Food facilities must produce written assessments that identify risks to the food they handle, and specify prophylactic measures to minimum these identified risks,
(3) FDA must greatly step up its inspections of food facilities, both in the U.S. and abroad, and
(4) FDA will now possess enhanced recall authority, allowing the agency to force recalls of unsafe food if the producer of the food fails to do so voluntarily, and will be able to suspend registration of food facilities connected to unsafe food.
Here is how Food and Drugs Commissioner Margaret Hamburg describes the new FSMA
Each year, foodborne illness strikes 48 million Americans, hospitalizing a hundred thousand and killing thousands.  I thank the President and members of Congress for recognizing that the burden that foodborne illness places on the American people is too great, and for taking this action.
The historic legislation the President will sign tomorrow directs the Food and Drug Administration, working with a wide range of public and private partners, to build a new system of food safety oversight – one focused on applying, more comprehensively than ever, the best available science and good common sense to prevent the problems that can make people sick...
This law represents a sea change for food safety in America, bringing a new focus on prevention, and I expect that in the coming years it will have a dramatic and positive effect on the safety of the food supply.
Two of the greatest challenges faced by the FDA in implementing the FSMA will be time and money.  To meet the aggressive schedule of inspections and other actions mandated by the FSMA, the agency will have to hire many new employees with expensive scientific credentials.  The new Republican-dominated House may balk at supplying any new funds in the new era of austerity they have announced.  However, food safety is a very popular political issue, and woe betide the future electoral prospects of any politician seen to be advocating less of it.