For Auld Lang Syne!

There is no better way to ring in the New Year than to sing Robert Burns' Scots-language poem, Auld Lang Syne.  Here, in all its ebullient and impenetrable glory, is the entire poem:

Should auld acquaintance be forgot,
And never brought to mind?
Should auld acquaintance be forgot,
And auld lang syne!

Chorus.- For auld lang syne, my dear,
For auld lang syne.
We'll tak a cup o' kindness yet,
For auld lang syne.

And surely ye'll be your pint stowp!
And surely I'll be mine!
And we'll tak a cup o'kindness yet,
For auld lang syne.
For auld, &c.

We twa hae run about the braes,
And pou'd the gowans fine;
But we've wander'd mony a weary fit,
Sin' auld lang syne.
For auld, &c.

We twa hae paidl'd in the burn,
Frae morning sun till dine;
But seas between us braid hae roar'd
Sin' auld lang syne.
For auld, &c.

And there's a hand, my trusty fere!
And gie's a hand o' thine!
And we'll tak a right gude-willie waught,
For auld lang syne.
For auld, &c.

Happy New Year!

Internet Architects

The December 31, 2013, edition of the New York Times, includes a fascinating interview with two of the original architects of the technical rules that allow the internet to function.  In the article, entitled Viewing Where the Internet Goes, Vinton Cerf and Robert Kahn discuss both how they designed rules to allow the internet to flourish and impingements on those rules that may threaten the future of internet freedom.

Robot Menagerie

Robots are on the rise.  Skynet is not yet self-aware, but the fact that even Google and Amazon have now decided to place big bets on them reflects the new robotic Zeitgeist.  Interestingly, rather than start entirely from scratch, the designs of many robots are being drawn directly from biology.  Boston Dynamics - a recent Google acquisition - exemplifies this trend.  Its robots include BigDog, LittleDog, Cheetah, and SandFlea.  One of the newest members of Boston Dynamics' mechanized menagerie is WildCat, featured in this video:  
Billions of years of evolution produced extant wild cats - superb runners, jumpers, climbers, and hunters.  Designers of robots are wise to draw upon the fruits of one of the most profoundly powerful forces ever discovered:  Charles Darwin's natural selection.  Perhaps designers will soon expand their efforts beyond the mere products of natural selection, and try to use natural selection itself to design new robots.  The writing of On the Origin of Robots by Means of Natural Selection has begun.

Copyrights And Copywrongs

The National Public Radio ("NPR") program, On The Media, rebroadcast one of its best 2013 episodes on December 29, 2013.  On The Media describes this episode, entitled "The Past, Present, and Future of Ownership," as follows:

A special hour, originally aired in March, on our changing understanding of ownership and how it is affected by the law. An author and professor who encourages creative writing through plagiarism, 3D printing, fan fiction & fair use, and the strange tale of who owns "The Happy Birthday Song."

Here is a podcast of the episode.
After listening to it, you may never again blithely click "Copy" on your computer.

The Curious Incident Of The Copyright

On Valentine's Day, 2014, Leslie S. Klinger filed, not a love letter, but a lawsuit in the United States District Court for the Northern District of Illinois, seeking declaratory judgment

establishing that the public is entitled to copy the expression embodied in [many of Sir Arthur Conan Doyle's published stories chronicling the adventures of the inimitable Sherlock Holmes].

Specifically, in his motion for summary judgment, Klinger sought

a judicial determination that the [pre-1923] Sherlock Holmes [stories' expressive elements] are free for public use because the stories in which the elements were first introduced have entered the public domain.

The Conan Doyle Estate, Ltd., ("Estate") owners of the copyrights in Sherlock Holmes, opposed this position, arguing, instead, that

because Sherlock Holmes and Dr. Watson were continually developed throughout the entire Canon [of Sherlock Holmes stories], the copyright protecting the [post-1923 stories] should extend to the Sherlock Holmes and Dr. Watson characters and story elements pertaining to those characters.

In resolving the dispute, Court granted summary judgment to Klinger with respect to pre-1923 expressive elements, but allowed the Estate to maintain its copyright control over later-published expressive elements.  Of course, the Estate's victory comes with a time limit because copyright protection lasts for "limited Times" that will continue to expire as the years pass.

Sherlock Holmes has now lifted one foot out of copyright, and will soon be standing squarely within the public domain.  It has taken much effort by Klinger to achieve this partial victory through the courts.  As Sherlock Holmes himself said in The Missing Three-Quarter,

There is so much red tape in these matters. However, I have no doubt that with a little delicacy and finesse the end may be attained.

Even without delicacy or finesse, time will soon see Sherlock Holmes entirely within the public domain.

Doctor Who Meets John Rawls

For the past half century, Doctor Who has been righting wrongs (or, at least, trying to do so) across endless expanses of space and time.  Regardless of which incarnations of the Doctor are your favorites - Jon Pertwee and Tom Baker are mine - the television series has entertained generations with more than just adventures, aliens, and acumen.  Doctor Who stories routinely rely on philosophical issues, from the logical to the metaphysical, as central drivers of the narrative.  The 50th Anniversary special, entitled The Day of the the Doctor, does this especially well.  Not only does it explore a variation of the Trolley Problem, more impressively, it imposes John Rawls' Original Position on two warring sides (that is, humans versus zygons) to force a peaceful resolution to their dispute.  As superb science fiction as it has ever been, Happy Anniversary, Doctor Who!

The Catastrophocene

The December 23 & 30, 2013, issue of The New Yorker has the second in a series of articles about extinction by Elizabeth Kolbert.  This article discusses the phonomenon of mass extinctions, including the current anthropogenic mass extinction event.  One of the most fascinating ideas Kolbert explores is what kind of fossil record our own civilization will leave behind for whatever posterity follows us.  

Life Gets Simpler

In a new article, published in Nature on December 12, 2013, Williams et al. present evidence supporting the "Eocyte hypothesis" that the Tree of Life has only two branches (Bacteria and Archaea), not three (Bacteria, Archaea, and Eukaryota).  Their article, entitled "An archaeal origin of eukaryotes supports only two primary domains of life," situates the Eukaryota (organisms with cellular nuclei), for the most part, within the Archaea.  Here is the article's abstract:

The discovery of the Archaea and the proposal of the three-domains ‘universal’ tree, based on ribosomal RNA and core genes mainly involved in protein translation, catalysed new ideas for cellular evolution and eukaryotic origins. However, accumulating evidence suggests that the three-domains tree may be incorrect: evolutionary trees made using newer methods place eukaryotic core genes within the Archaea, supporting hypotheses in which an archaeon participated in eukaryotic origins by founding the host lineage for the mitochondrial endosymbiont. These results provide support for only two primary domains of life—Archaea and Bacteria—because eukaryotes arose through partnership between them.

Apparently, even evolutionary phylogenetics follows the ancient, familiar, and inviolable principle that two's company, but three's a crowd.

Leiter Side Of Religion

Philosopher, legal scholar, and blogger, Professor Brian Leiter, recently published a book on the law and philosophy of religion and conscience, entitled Why Tolerate Religion?  Here is a video of his November 19, 2013, lecture, "Why Tolerate Religion?," at the University of Chicago:
 
Here is a description of his book by its publisher, Princeton University Press:

In Why Tolerate Religion?, Brian Leiter argues that the reasons have nothing to do with religion, and that Western democracies are wrong to single out religious liberty for special legal protections. He offers new insights into what makes a claim of conscience distinctively "religious," and draws on a wealth of examples from America, Europe, and elsewhere to highlight the important issues at stake. With philosophical acuity, legal insight, and wry humor, Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.

As modern societies become ever more diverse along the axes of religion and conscience, the need for incisive analysis of how the law should treat - and should or should not privilege - religious belief grows ever more urgent.  Leiter is an important voice in this debate.

Georges Cuvier - Father Of Extinction

The December 16, 2013, issue of The New Yorker has a fascinating article on extinction by Elizabeth Kolbert.  It chronicles the "discovery" of extinction by the French biologist Jean-Léopold-Nicholas-Frédéric "Georges" Cuvier.  Although extinction is now a distressingly common concept, in large part due to the current anthropogenic mass extinction event, the article discusses just how controversial an idea extinction was in the 18th Century.

Pseudopreneurship

Entrepreneurship is all the rage these days.  Everyone seems to want to found a company, though considerable empirical evidence suggest that fewer and fewer people actually do so.  In fact, the number of people claiming to have been entrepreneurs probably vastly exceeds the actual number of company founders.  Carefully scrutinize many biographies, webpages, and curricula vitae, and one is amazed by how flexible the definition of "entrepreneur" seems to have become.  This phenomenon demands a new moniker:  "pseudopreneur."  As I conceive it, a pseudopreneur is anyone whose claim to have founded a company is specious, silly, or just plain dishonest.  Pseudopreneurs are legion.  Spot them if you can.

Graecide: Life On The Vineyard

One of the best shows on radio, This American Life, recently rebroadcast a tragic story about the police killing of Tom The Turkey, a local avian celebrity on Martha's Vineyard.  I will not reveal the identities of the two wonderful people who tried to save Tom from the police because they are very close friends of mine.  I applaud their brave efforts to defend Tom.  Listen to Murder Most Fowl.

Corny Science

The journal Nature reported on November 28, 2013, the retraction of a published scientific article claiming that laboratory rats fed genetically-modified ("GM") maize suffered substantial health problems.  As the journal reported,

Bowing to scientists' near-universal scorn, the journal Food and Chemical Toxicology today fulfilled its threat to retract a controversial paper claiming that a genetically modified (GM) maize causes serious disease in rats, after the authors refused to withdraw it.

Elsevier, the publisher of Food and Chemical Toxicology, explained its decision to retract the article as follows:

there is a legitimate cause for concern regarding both the number of animals in each study group and the particular strain selected. The low number of animals had been identified as a cause for concern during the initial review process, but the peer review decision ultimately weighed that the work still had merit despite this limitation. A more in-depth look at the raw data revealed that no definitive conclusions can be reached with this small sample size regarding the role of either NK603 or glyphosate in regards to overall mortality or tumor incidence. Given the known high incidence of tumors in the Sprague-Dawley rat, normal variability cannot be excluded as the cause of the higher mortality and incidence observed in the treated groups.

There are interesting times - sensu the oft-cited, but apparently apocryphal, Chinese curse - for the science and public opinion of GM food.  While robust scientific evidence that GM food causes harm to humans remains elusive, a vocal opposition maintains that GM food is unhealthy.

This retraction, by Food and Chemical Toxicology, is not the first.  In 2007, I published an article, entitled "Intellectual Property as the Third Dimension of GMO Regulation," that discusses similar previous GM publication shlamazels (available for free download here).  Disputes over food are often primal in character.  They have led to war, revolution, famine, and disease.  People behave from instinct when their access to healthy food appears threatened.  For this reason, ensuring that information about food is derived from reliable science is vital.  Publication of flawed food science is not merely unpalatable for peer review journals, it can cause painful political indigestion.

there is a legitimate cause for concern regarding both the number of animals in each study group and the particular strain selected. The low number of animals had been identified as a cause for concern during the initial review process, but the peer review decision ultimately weighed that the work still had merit despite this limitation. A more in-depth look at the raw data revealed that no definitive conclusions can be reached with this small sample size regarding the role of either NK603 or glyphosate in regards to overall mortality or tumor incidence. Given the known high incidence of tumors in the Sprague-Dawley rat, normal variability cannot be excluded as the cause of the higher mortality and incidence observed in the treated groups. - See more at: http://www.elsevier.com/about/p

there is a legitimate cause for concern regarding both the number of animals in each study group and the particular strain selected. The low number of animals had been identified as a cause for concern during the initial review process, but the peer review decision ultimately weighed that the work still had merit despite this limitation. A more in-depth look at the raw data revealed that no definitive conclusions can be reached with this small sample size regarding the role of either NK603 or glyphosate in regards to overall mortality or tumor incidence. Given the known high incidence of tumors in the Sprague-Dawley rat, normal variability cannot be excluded as the cause of the higher mortality and incidence observed in the treated groups. - See more at: http://www.elsevier.com/about/press-releases/research-and-journals/elsevier-announces-article-retraction-from-journal-food-and-chemical-toxicology#sthash.0DEVUvqe.dpuf

there is a legitimate cause for concern regarding both the number of animals in each study group and the particular strain selected. The low number of animals had been identified as a cause for concern during the initial review process, but the peer review decision ultimately weighed that the work still had merit despite this limitation. A more in-depth look at the raw data revealed that no definitive conclusions can be reached with this small sample size regarding the role of either NK603 or glyphosate in regards to overall mortality or tumor incidence. Given the known high incidence of tumors in the Sprague-Dawley rat, normal variability cannot be excluded as the cause of the higher mortality and incidence observed in the treated groups. - See more at: http://www.elsevier.com/about/press-releases/research-and-journals/elsevier-announces-article-retraction-from-journal-food-and-chemical-toxicology#sthash.0DEVUvqe.dpuf

there is a legitimate cause for concern regarding both the number of animals in each study group and the particular strain selected. The low number of animals had been identified as a cause for concern during the initial review process, but the peer review decision ultimately weighed that the work still had merit despite this limitation. A more in-depth look at the raw data revealed that no definitive conclusions can be reached with this small sample size regarding the role of either NK603 or glyphosate in regards to overall mortality or tumor incidence. Given the known high incidence of tumors in the Sprague-Dawley rat, normal variability cannot be excluded as the cause of the higher mortality and incidence observed in the treated groups. - See more at: http://www.elsevier.com/about/press-releases/research-and-journals/elsevier-announces-article-retraction-from-journal-food-and-chemical-toxicology#sthash.0DEVUvqe.dpuf

there is a legitimate cause for concern regarding both the number of animals in each study group and the particular strain selected. The low number of animals had been identified as a cause for concern during the initial review process, but the peer review decision ultimately weighed that the work still had merit despite this limitation. A more in-depth look at the raw data revealed that no definitive conclusions can be reached with this small sample size regarding the role of either NK603 or glyphosate in regards to overall mortality or tumor incidence. Given the known high incidence of tumors in the Sprague-Dawley rat, normal variability cannot be excluded as the cause of the higher mortality and incidence observed in the treated groups. - See more at: http://www.elsevier.com/about/press-releases/research-and-journals/elsevier-announces-article-retraction-from-journal-food-and-chemical-toxicology#sthash.0DEVUvqe.dpuf

Designs On Thanksgiving

The wonderful design patent blog, The Ordinary Observer, has an entertaining and enlightening discussion of proper apportionment of damages in design patent infringement cases.  Just in time for American Thanksgiving, enjoy "The Turducken Problem."

Lexvivo wishes everyone Happy Thanksgiving!

The Evil Twins Debating

The University of Richmond School of Law's Seventh Annual "Evil Twins Debate" was held on November 15, 2013.  Professor Mark Janis of the Indiana University Maurer School of Law and I (Professor Andrew Torrance of the University of Kansas School of Law) debated the topic "Design Patents: Great Idea, or Greatest Idea?"  For the sake of argument, I represented the Greatest Idea position while Mark argued in favor of the Great Idea side.  Here is the video of the Evil Twins Debate on the University of Richmond School of Law YouTube channel:
Intellectual property experts, Professor Jim Gibson and Professor Chris Cotropia, deserve immense credit for making the Evil Twins Debate the wonderful institution it has become.  Thanks very much, Jim and Chris, for inviting me to be a 2013 Evil Twin.

Gene Choices & Choice Genes

The United States Patent and Trademark Office ("USPTO") issued United States Patent Number 8,543,339 to 23andMe, Inc. on September 24, 2013.  The patent is entitled "Gamete Donor Selection Based On Genetic Calculations."  Here is the abstract:

Gamete donor selection includes receiving a specification including a phenotype of interest, receiving a genotype of a recipient and a plurality of genotypes of a respective plurality of donors, determining statistical information pertaining to the phenotype of interest based at least in part on different pairings of the genotype of the recipient and a genotype of a donor in the plurality of donors, and identifying a preferred donor among the plurality of donors, based at least in part on the statistical information determined.

Here is Claim 1 of the patent, as issued by the USPTO:

A system for gamete donor selection comprising: one or more processors configured to: receive a specification including a phenotype of interest that can be present in a hypothetical offspring; receive a genotype of a recipient and a plurality of genotypes of a respective plurality of donors; determine statistical information including probabilities of observing the phenotype of interest resulting from different combinations of the genotype of the recipient and genotypes of the plurality of donors; and identify a preferred donor among the plurality of donors, based at least in part on an evaluation of the statistical information determined, including: to compare the probabilities of observing the phenotype of interest resulting from different combinations of the genotype of the recipient and the genotypes of the plurality of donors to identify the preferred donor; and a memory coupled to the processor, configured to provide the processor with instructions.

Assuming that 23andMe develops this concept into a commercial service, choosing the genetic traits of one's baby may soon be as easy as a few mouse-clicks and the swipe of a credit card.  As I suggested in a 2008 article entitled "Patenting Human Evolution" (freely available here) and a 2009 article entitled "Open and Proprietary Biological Innovation in Human Genetic Enhancement" (freely available here), patents may soon be a selective force that helps drive human evolution.  Perhaps this patent is a harbinger. 

23andFDA

Knowledge of the human genome promises much to humanity.  One common suggestion is that sequencing a person's genome will unlock powerful opportunities for diagnosis and therapy.  A leader in the commercial market for human genomics is Google's neighbor, 23andMe, Inc., of Mountain View, California.  It fashions itself "The leading health and ancestry DNA service."  The Food and Drug Administration ("FDA") appears to think that 23andme has moved its services into the market prematurely.  In a "WARNING LETTER" sent to the company on November 22, 2013, the FDA states that it has yet to approve 23andme's product, which the agency characterizes as

a device within the meaning of section 201(h) of the [Food, Drug and Cosmetic] Act ["FDCA"], 21 U.S.C. 321(h), because it is intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment, or prevention of disease, or is intended to affect the structure or function of the body.

In its letter, the FDA orders 23andme to take its product off the market immediately:

23andMe must immediately discontinue marketing the PGS until such time as it receives FDA marketing authorization for the device. The PGS is in class III under section 513(f) of the FD&C Act, 21 U.S.C. 360c(f). Because there is no approved application for premarket approval in effect pursuant to section 515(a) of the FD&C Act, 21 U.S.C. 360e(a), or an approved application for an investigational device exemption (IDE) under section 520(g) of the FD&C Act, 21 U.S.C. 360j(g), the PGS is adulterated under section 501(f)(1)(B) of the FD&C Act, 21 U.S.C. 351(f)(1)(B).  Additionally, the PGS is misbranded under section 502(o) of the Act, 21 U.S.C. § 352(o), because notice or other information respecting the device was not provided to FDA as required by section 510(k) of the Act, 21 U.S.C. § 360(k).

This federal regulatory enforcement action is sure to galvanize the human genomics industry into action.  One possibility is to spur efforts to comply better with the FDCA.  Another is that 23andme will challenge the FDA's allegations, perhaps by disputing whether the FDCA does, in fact, apply to genomics testing.  It is not a foregone conclusion that the federal courts will side with the FDA, even though they do tend to give federal agency decisions considerable deference.

Regardless of the outcome of this particular FDA enforcement action, human genomics is certain to play an acceleratingly-important role in human health.  As the avid Tudorian, Allison Plowden, once wrote, "The laws of genetics apply even if you refuse to learn them."

E Pluribus Verbi

Too many cooks may spoil the broth, but how many authors are too many when collaborating to write an article?  To explore this quandry, my colleagues, Bill Tomlinson (University of California, Irvine), Joel Ross (University of Puget Sound), Paul Andre (Carnegie Mellon University), Eric P. S. Baumer (Cornell University), Donald J. Patterson (University of California, Irvine), Joseph Corneli (Independent), Martin Mahaux (Independent), Syavash Nobarany (University of British Columbia), Nithya Sambasivan (Independent), Marco Lazzari (University of Bergamo), Birgit Penzenstadler (Technische Universität München), David J. Callele (Independent), Gary M Olson (University of California, Irvine), M. Six Silberman (Independent), Marcus Ständer (Darmstadt University of Technology), Fabio Romancini Palamedi (Independent), Albert Ali Salah (Boğaziçi University), Eric Morrill (Independent), Xavier Franch (University of Puget Sound), Florian 'Floyd' Mueller (Independent), Joseph 'Jofish' Kaye (Independent), Rebecca W. Black (University of California, Irvine), Marisa L. Cohn (University of California, Irvine), Patrick C. Shih (University of California, Irvine), Johanna Brewer (Independent), Nitesh Yashbir Goyal (Independent), Pirjo Näkki (VTT Technical Research Centre of Finland), Jeff Huang (Independent), Nilufar Baghaei (Independent), and Craig Saper (The Hilltop Institute at UMBC), and I collaboratively coauthored an article entitled "Massively Distributed Authorship of Academic Papers" that was published on February 17, 2013, in ACM Conference on Human Factors in Computing Systems (CHI 2012) Extended Abstracts (alt.chi).  Here is the abstract:

Wiki-like or crowdsourcing models of collaboration can provide a number of benefits to academic work. These techniques may engage expertise from different disciplines, and potentially increase productivity. This paper presents a model of massively distributed collaborative authorship of academic papers. This model, developed by a collective of 31 authors, identifies key tools and techniques that would be necessary or useful to the writing process. The process of collaboratively writing this paper was used to discover, negotiate, and document issues in massively authored scholarship. Our work provides the first extensive discussion of the experiential aspects of large-scale collaborative research.

Our full article is available for free download on SSRN.  Thank you very much to all of my talented and cooperative coauthors who made this experiment in collaborative writing a pleasure.  Bill Tomlinson deserves massive and special praise for deftly coordinating the creation of the article.

Medtronic v. Boston Scientific

On November 5, 2013, the United States Supreme Court heard oral arguments in Medtronic, Inc. v. Boston Scientific Corporation, et al..  Seth Waxman, a former U.S. Solicitor General, attorney for petitioner, Medtronic, and partner at WilmerHale, explained the legal issue at the heart of the litigation:

Patent law places the burden of proving infringement on the patentee. And until this case, it was settled that the burden does not shift if the issue arises in a declaratory action seeking a judgment of non-infringement.  The [Court of Appeals for the] Federal Circuit imposed a different rule in suits brought under [MedImmune, Inc v. Genentech, Inc., et al.] where the party seeking a declaration of non-infringement is a licensee. That was error.

Allocation of the burden of proof inheres in the governing substantive law while the Declaratory Judgment Act is procedural only and does not change substantive rights. The burden of proof in MedImmune actions, like all other declaratory actions, remains where it would have rested in the equivalent coercive suit brought by that patentee.

Based on what transpired in these oral arguments, the Supreme Court appears skeptical of the burden-shifting rule introduced by the Federal Circuit in MedImmune.  A decision is likely before next summer.

Toronto Mayor Cracks Under Pressure

Rob Ford became mayor of Toronto, Canada, on December 1, 2010.  On November 5, 2013, he made a stunning (though not unexpected) admission:

Question: Do you smoke crack cocaine?
Ford: Yes I have smoked crack cocaine. But no, do I, am I am addict? No. Have I tried it? Probably in one of my drunken stupors, probably approximately about a year ago. I answered your question. You ask the question properly, I’ll answer it. Yes, I’ve made mistakes. All I can do now is apologize and move on.

Ford's tenure as mayor of Toronto has been nasty and brutish, and his abuse of alcohol and use of crack will likely make it short as well.  Like a clock inexorably counting down the last few seconds of one of his beloved football games, his time is almost up.  His resignation is likely just days, or possibly even mere hours, away.  What a tawdry affair in an otherwise good city.

Red Sox Ascend Olympus

Former Commissioner of Major League Baseball (not to mention former President of Yale University) Bart Giamatti paid tribute to Fenway Park as follows:

As I grew up, I knew that as a building [Fenway Park] was on the level of Mount Olympus, the Pyramid at Giza, the nation's capitol, the czar's Winter Palace, and the Louvre — except, of course, that is better than all those inconsequential places.

By winning the World Series on October 30, 2013 - the team's third World Series championship in a decade - the Boston Red Sox have lived up to Giamatti's Olympian tribute.  What a great time to be a Red Sox fan!

Roger Daltrey Fêtes Winston Churchill

Roger Daltrey helped politicians and distinguished guests celebrate the unveiling of a statue of Winston Churchill today on Capitol Hill. Daltrey began with Ben E. King's "Stand By Me" (starting at 40:30 on the video) to celebrate the trans-Atlantic alliance that Churchill helped forge. Rather cheekily, as politicians such as John Boehner, John Kerry, Mitch McConnell, and Nancy Pelosi were still present, the Who's outspoken lead singer closed the ceremony with "Won't Get Fooled Again" (starting at 54:07 on the video).

Lies, Damn Lies, And Statistics

The rise of empirical methods is one of the most marked recent trends in the legal academy.  Data-driven scholarship is transforming fields as diverse as intellectual property, criminal law, and environmental law.  Professor Dan Kahan, of Yale Law School, is a leader in the empirical study of law.  In an October 23, 2013, article, entitled "Statistical Fluke? Researcher's Observations on Tea Party and Science Spark Political Frenzy," Science Magazine discussed recent research by Kahan discussing correlations between political beliefs and scientific knowledge.  As the article points out,

It started innocently on 15 October. On his blog, Kahan posted an informal analysis of survey data that compares people’s comprehension of scientific concepts and their political outlook. The data were gathered from a large U.S. study of how people perceive the risk of vaccination. And when Kahan crunched the numbers, they revealed a small correlation between science comprehension and political leaning. One finding: Those who identified themselves as “liberal” tended to have greater scientific comprehension than those who self-identified as “conservative.”

This finding set the innumerate cat among the credulous pigeons.  One of the article's central insights is that statistical analysis continues to defy competent interpretation by many people, including those who should know better.  More than a century after Mark Twain attributed the phrase to Benjamin Disraeli, widespread incomprehension of statistical analysis lends credence to the observation that "There are three kinds of lies: lies, damned lies, and statistics."

Hacking Genomes

Yaniv Erlich, a bioinformaticist at the Whitehead Institute, announced on October 24, 2013, that he and his colleagues had assembled a family tree made up of 13 million people.  The genomic data used to analyze this massive family tree came from a genomics services provider called www.geni.com.  Here is an excerpt from an article in Nature about Erlich's research project:

Using data pulled from online genealogy sites, a renowned ‘genome hacker’ has constructed what is likely the biggest family trees ever assembled. The researcher and his team now plan to use the data — including a single uber-pedigree comprising 13 million individuals, which stretches back to the 15th century — to analyse the inheritance of complex genetic traits, such as longevity and facial features.

 George Burns once said "Happiness is having a large, loving, caring, close-knit family in another city."  For the huge family Erlich has discovered, there may be few cities in which to hide.

Happiness is having a large, loving, caring, close-knit family in another city.
Read more at http://www.brainyquote.com/quotes/topics/topic_family6.html#87fpwlB0Hd17zCMJ.99

Happiness is having a large, loving, caring, close-knit family in another city.
Read more at http://www.brainyquote.com/quotes/topics/topic_family6.html#87fpwlB0Hd17zCMJ.99

Happiness is having a large, loving, caring, close-knit family in another city.
Read more at http://www.brainyquote.com/quotes/topics/topic_family6.html#87fpwlB0Hd17zCMJ.99

Evil Twins Debate

Design patents are currently the hottest form of intellectual property protection.  One of the coolest institutions in the intellectual property legal academy is the University of Richmond School of Law's annual "Evil Twins Debate." This year, I am very honored to have been invited to be one of the Evil Twins in a debate entitled "Design Patents:  Great Idea, or Greatest Idea."  Purely for the sake of argument, I will represent the Greatest Idea position. Here is how the Richmond School of Law describes the Evil Twins Debate:

The Intellectual Property Institute's Evil Twin Debate Series is founded on the notion that experts are often at loggerheads on important issues of IP policy, yet remain friendly on a personal level. The series therefore brings together pairs of scholars who disagree on an important IP topic, but who can air their disagreements in a friendly exchange—serious in substance but lighthearted in tone.

2013 Debate

The Seventh Annual Evil Twin Debate will take place at noon on November 15, 2013, in the law school's moot court room. It will feature Professor Mark Janis of Indiana University's Maurer School of Law and Professor Andrew Torrance of the University of Kansas School of Law. They will debate the topic Design Patents: Great Idea, or Greatest Idea? [Emphasis added.] As always, the debate is open to the public, and a Q&A and reception will follow.

The debate will be simulcast and recorded for posting on the web.  The debate should be a lot of fun.

Russell (Fire)Brand

Close on the heels of guest editing for the New Statesman, Russel Brand was interviewed by Jeremy Paxman on BBC Newsnight.
During the interview, Brand spoke repeatedly about the need he sees for massive political change.  About the current system, Brand said "Why be complicit in this ridiculous illusion?" When asked by Paxman, "Do you see any hope?," Brand responded,

There is going to be a revolution.  It is totally going to happen.  I ain't got a flicker of doubt.  This is the end.  This is time to wake up.

Powered by Brand's typical freneticism, this interview has rapidly become a fascinating meme.

Spy Vs. Spy

Much of the current outrage in Europe over allegations the United States spied on its allies, most notoriously by listening to Bundeskanzlerin Angela Merkel's mobile phonecalls, is genuine. Yet, it is a fair assumption that most countries consider espionage on both friends and foes acceptable under at least some circumstances. Tommy Douglas, who served as Premier of Saskatchewan from 1944 to 1961 (and who, incidentally, was Kiefer Sutherland's grandfather), strongly condemned espionage as a dire threat to democracy:

Setting people to spy on one another is not the way to protect freedom.

Reasonable people may differ on whether or not this admonition retains relevance today. However, it is clear that spying on allies carries substantial costs that should be weighed against any benefits.

Founders School

Goodbye To Law Reviews?

A number of authors have recently questioned the influence and relevance of law reviews, including, rather prominently, Adam Liptak in the New York Times on October 21, 2013.  Liptak's article, entitled The Lackluster Reviews That Lawyers Love to Hate, humorously cites a 1936 Virginia Law Review article for support.  The article, by Fred Rodell of Yale Law School, is called Goodbye To Law Reviews.  Here is its abstract:

It is doubtless of no concern to anyone that this is probably my last law review article. As a matter of fact, this makes one more article than I had originally planned to write. It was something in the nature of a New Year's resolution. Yet the request to do a piece about law reviews seemed a golden opportunity to make my future absence from the "Leading Articles, Authors" lists a bit more pointed than would the business of merely sitting in a comer, sucking my thumb, and muttering Boo. Keeping well in line with two traditions—a course which lawyers will readily understand—I decided to break the resolution and not wait for opportunity's second knock. This, then, is by way of explaining why I do not care to contribute further to the qualitatively moribund while quantitatively mushroom-like literature of the law.

There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature—and I by no means except those fancy rationalizations of legal action called judicial opinions—is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style. The average law review writer is peculiarly able to say nothing with an air of great importance. When I Used to read law reviews, I used constantly to be reminded of an elephant trying to swat a fly.

One might ask an obvious, and logically-challenging, question prompted by the article itself:  should one bother reading it since it was published in a law review?

ET EU EH?

On October 18, 2013, Canada and the European Union signed an agreement-in-principle to free trade between their two markets.  Although the legal text has yet to be finalized (or published), one controversial aspect of the negotiations has been harmonization of Canadian patent law with that of the European Union.  It is likely that this will benefit brand pharmaceutical firms at the expense of generic drug companies, and lead to higher prices for prescription drugs claimed in valid and enforceable patents.

Toronto's Cultural Moment

In the fall of 2013, two of the most popular strands of youth culture - hip hop and basketball - neatly knitted themselves together in Toronto, Canada.  This huge city perched on the north shore of Lake Ontario is having a rare moment of global influence.  Its source are two dominantly-talented young Torontonians:  (1) Aubrey "Drake" Graham, the current king of the music charts, and (2) Andrew Christian Wiggins, the Kansas Jayhawk consensus top freshman men's basketball player in the NCAA.  Drake bestrides hip hop with his new album "Nothing Was The Same,"  while Wiggins inspires best-since-LeBron and NBA-#1-draft-pick accolades.  Bask in your glorious moment, Toronto.

Standards And Patents

The United States National Academies' STEP (Board on Science, Technology, and Economic Policy) Board today (October 15, 2013) published a new report entitled Patent Challenges for Standard-Setting in the Global Economy.  The report, as summarized in an email announcing its publication, has four parts:

(1) A survey of a dozen key SSOs in the ICT arena to ascertain how their IPR policies have evolved;
(2) Recommendations to SSOs and the USG re the thorny issues of FRAND interpretation, terms of SEPs disclosures, transfer of FRAND obligations with patent ownership, transparency of patent ownership, and the availability of injunctive relief on SEPs with FRAND obligations;
(3) Examination of standards and IP policy development in China, India, and Brazil; and
(4) Discussion of the relevance to the USPTO of the European Patent Office’s information sharing arrangements with the IEEE, ITU, and ETSI.

In 2012, Linda Kahl and I were commissioned by the National Academies to write a report entitled Synthetic Biology and Intellectual Property as part of the process leading to Patent Challenges for Standard-Setting in the Global Economy, and our report will soon be published in The Santa Clara Computer & High Technology Law Journal.

Innovation Rights And The Innovation Wetlands

Professor Eric von Hippel (MIT Sloan School of Management) and I have now posted on SSRN a draft of our new article, entitled "Protecting the Right to Innovate: Our 'Innovation Wetlands'."  Our article is free to download from SSRN.  Here is the abstract:

Individual citizens have been found to be a major source of new product and service innovations of value both to themselves, and to the economy at large. These individuals operate in a little-understood legal environment that we call the innovation wetlands. We show via a review of fundamental rights guaranteed in the US Constitution and elsewhere that individuals in the US participating in the innovation wetlands have strong legal protections with respect to both their freedom to innovate and their right to diffuse information about their innovations to others. However, we also show that legislation and regulation — often promulgated without awareness of consumer innovation as a valuable resource — can, in practice, significantly interfere with individuals’ exercise of their fundamental freedom to innovate. This interference can cost society dearly.

We offer three approaches to protecting the valuable resource of innovation by individuals from excessive negative impacts caused by legislation and regulation. First, we propose enhancing general awareness of the issue by framing the concept of individual innovation rights as an "innovation wetlands" that must be protected. Second, we describe the legislative and regulatory frameworks and practices that demark today’s innovation wetlands, as experienced by individual and collaborating innovators. Third, we suggest improvements that can strengthen protection of the innovation wetlands, including heightening awareness of the issue in existing, mandated cost-benefit analyses that are already applied, although imperfectly, to regulation in the US.

I have had the great fortune of being a Visiting Scholar at the MIT Sloan School of Management for the past two years, and owe Eric von Hippel a debt of gratitude for being such a wonderful host and colleague.  He and I will further refine our new article on the "Innovation Wetlands" over the coming months.

The Unpatentable Human

The Hastings Center Report just published an article I wrote entitled The Unpatentable Human Being.  Here is the abstract:

On June 13, 2013, the Supreme Court placed its imprimatur on a principle that has been gathering force within patent law for several decades: human beings constitute unpatentable subject matter. In Association for Molecular Pathology v. Myriad Genetics, Inc., the court answered the question it had posed itself — “Are human genes patentable?” — decisively in the negative. Synthetic DNA sequences, designed by humans, were excluded from this prohibition, but the invalidation of patents claiming human genes wiped out vast amounts of private investment and was a body blow to the biotechnology industry. Nevertheless, this legal result was predictable, given a careful reading of the entrails of judicial decisions, congressional bills, executive branch pronouncements, and decisions in other countries about patents claiming human-related inventions, all of which have echoed the spirit of the Thirteenth Amendment by proscribing property rights — including intellectual property rights — in human beings. To understand how patent law has evolved toward this result, one may trace the legal treatment of patents claiming human embryonic stem cells, chemical products of human physiology, human thought, and now, human genes. Woven together, these strands of evidence led inexorably toward the ultimate rejection of human gene patents by the Supreme Court, and placed a decisive judicial exclamation mark on the unpatentability of human beings and human bodily structures and functions.

I'm working on a longer treatment of this topic as well.

Dear Alice Munro

A week ago, I finished reading Dear Life, a book of short stories Alice Munro announced would be her last.  I raced through the book in advance of the awarding of this year's Nobel Prize in Literature, just in case the deserving Munro finally won.  Mirabile dictu, Alice Munro is the recipient of the 2013 Nobel Prize in Literature.  In the book, Munro promises that her final set of stories are her most autobiographical, though she has long mined seams from her life, especially her youth in southwestern Ontario, to enrich her magnificent literary oeuvre.  Congratulations, Alice Munro, on your Nobel Prize!  Prepare yourself for Too Much Happiness.

Nesting Instinct

Hardware is the new software, thanks to 3-D printing, the makers' community, and even an incipient open source hardware movement.  This bodes well for better, more elegant, hardware design.  Close on the heels of reinventing the thermostat, Nest, one of Silicon Valley's most innovative hardware companies, has released a reimagined smoke and carbon monoxide alarm, named "Protect."  As the company explains, "We take the unloved products in your home and make simple, beautiful, thoughtful things."  It's no coincidence that both of Nest's products evoke iPod, iPhones, and iPads in their simply-elegant designs, because several Nest founders are Apple alumni.  With its new Protect, Nest must be hoping that where there's smoke, there's profit.

Big Ideas In Big Sky

Exploring A Snowy Mountainside Atop Jester

The Law & Economics Center ("LEC") at George Mason University School of Law and the Property and Environment Research Center ("PERC") are cosponsors of the LEC-PERC Workshop on Environmental Economics for Law Professors, an intensive bootcamp in law and economics for environmental law scholars, from October 2 to 6, 2013.  Organized by Terry Anderson (PERC) and Henry Butler (LEC and George Mason University School of Law), the diverse lectures include "The Scientific Method and the Economic Analysis of Law," "Environmental Markets," "Empirical Methods in Economics and Law," and "Common Law vs. Regulation," and "Natural Resource Economics."  An additional attraction is the location, in Big Sky, Montana, which is perched in spectacular mountains just west of Yellowstone National Park.  I was fortunate enough to be accepted into this LEC-PERC program, and am delighted to be learning about fascinating topics from great faculty, alongside my wonderful environmental law professor colleagues, in the midst of the stunning natural beauty of Big Sky's mountains, valleys, forests, rivers, and nighttime skies.

Toxodebtosis Redux

With looming prospects of a United States government shutdown and debt default, I decided to revive a relevant post from July 27, 2011, entitled Toxodebtosis.  Here it is:

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.

Wicked Smart At Harvard

One of the most rarified glimpses into the future one may take is to see what Harvard College freshmen decide to study.  The Harvard Crimson published a graph on September 12, 2013, of the freshman classes with the largest enrollments.  Economics used to dominate.  However, computer science and statistics have been rising very quickly.  In fact, Computer Science 50 has now tied Economics 10, and Statistics 110 is in third place and rising quickly.  As students of economics should understand, both computer science (high tech startups) and statistics (big data) now promise economic gains that economics (Wall Street) itself may not.

Polarizing Polaris Prize

Since 2006, the Polaris Music Prize has been awarded to a top Canadian musician or band.  According to its official mission statement,

The Polaris Music Prize is a not-for-profit organization that annually honours, celebrates and rewards creativity and diversity in Canadian recorded music by recognizing, then marketing the albums of the highest artistic integrity, without regard to musical genre, professional affiliation, or sales history, as judged by a panel of selected music critics.

At a September 23, 2013, gala ceremony, the 2013 Polaris Music Prize was awarded to the band GY!BE for its album ‘Allelujah! Don’t Bend! Ascend!.  The band was not amused.  They released the following disapproving statement regarding their Polaris victory:

A FEW WORDS REGARDING THIS POLARIS PRIZE THING
hello kanada.
hello kanadian music-writers.
thanks for the nomination thanks for the prize- it feels nice to be acknowledged by the Troubled Motherland when we so often feel orphaned here. and much respect for all y'all who write about local bands, who blow that horn loudly- because that trumpeting is crucial and necessary and important.
and much respect to the freelancers especially, because freelancing is a hard [!@#$]ing gig, and almost all of us are freelancers now, right? falling and scrambling and hustling through these difficult times?
so yes, we are grateful, and yes we are humble and we are shy to complain when we've been acknowledged thusly- BUT HOLY [*&^%] AND HOLY COW- we've been plowing our field on the margins of weird culture for almost 20 years now, and "this scene is pretty cool but what it really [!@#$]ing needs is an awards show" is not a thought that's ever crossed our minds.
3 quick bullet-points that almost anybody could agree on maybe=
-holding a gala during a time of austerity and normalized decline is a weird thing to do.
-organizing a gala just so musicians can compete against each other for a novelty-sized cheque doesn't serve the cause of righteous music at all.
-asking the toyota motor company to help cover the tab for that gala, during a summer where the melting northern ice caps are live-streaming on the internet, IS [!@#$]ING INSANE, and comes across as tone-deaf to the current horrifying malaise.
these are hard times for everybody. and musicians' blues are pretty low on the list of things in need of urgent correction BUT AND BUT if the point of this prize and party is acknowledging music-labor performed in the name of something other than quick money, well then maybe the next celebration should happen in a cruddier hall, without the corporate banners and culture overlords. and maybe a party thusly is long overdue- it would be truly nice to enjoy that hang, somewhere sometime where the point wasn't just lazy money patting itself on the back.
give the money to the kids let 'em put on their own [&^%]damn parties, give the money to the olds and let them try to write opuses in spite of, but let the muchmusic videostars fight it out in the inconsequential middle, without gov't. culture-money in their pockets.
us we're gonna use the money to try to set up a program so that prisoners in quebec have musical instruments if they need them…
amen and amen.
apologies for being such bores,
we love you so much / our country is [!@#$]ed,
xoxoxox
[GY!BE]

Politicultural critiques of the artistic establishment as scathing and heartfelt as this one are exceedingly rare.  This one is fascinating. 

Goodlatte Pushes Patent Reform

United States House Committee on the Judiciary Chairman Bob Goodlatte, a Virginia Republican, recently released a new proposal to reform United States patent law (document courtesy of PatentlyO, which also has a nice discussion of its provisions).  A summary accompanying a May 2013 version of the bill described its goals as follows:

This bill helps to address the issues that businesses of all sizes and industries face from patent troll-type behavior and aims to correct the current asymmetries surrounding abusive patent litigation. This bill reduces the costs of frivolous litigation, increases patent certainty and promotes the creation of American jobs.

There is little appetite in Congress for patent reform at the moment, though the alleged threat of patent trolls has captured some attention.  Furthermore, Congress is likely to be much more focused this fall on a possible federal government shutdown, the unfolding tragedy in Syria, and implementing Obamacare than on issues of patent law that cause instant eye-glazing-over in most people, even at the best of times.

EPIP On Video

The EPIP ("European Policy for Intellectual Property") Association has now posted keynote speaker videos taken at the 8th Annual Conference of the EPIP Association, held in Paris, at Telecom ParisTech, on September 5th and 6th, 2013.  Here is a video of my remarks regarding the future and challenges facing intellectual property.

Pope Francis And Biolaw

In a remarkable statement published by the Catholic News Service on September 19, 2013, the Catholic Pope, Francis, stated that

We cannot insist only on issues related to abortion, gay marriage and the use of contraceptive methods...It is not necessary to talk about these issues all the time...The dogmatic and moral teachings of the church are not all equivalent...The church's pastoral ministry cannot be obsessed with the transmission of a disjointed multitude of doctrines to be imposed insistently.

These sentiments caused excitement in the press around the world.  Many interpretations of their meaning and intent have been offered.  However, one of the most interesting aspects of Francis' statement is that its subject matter centers on key facets of biolaw:  rights to pair bond, reproduce, or not reproduce.  While particular stances on these issues engender wide - sometimes even wild - differences of opinion and conscience, there is almost universal agreement that they are, indeed, important issues.

Antitrust And Little Trust For Patents

The Searle Center on Law, Regulation, and Economic Growth, at Northwestern Law, held the Sixth Annual Conference on Antitrust Economics and Competition Policy on September 20, 2013.  Given exploding interest in patent trolls outside academia, it is perhaps unsurprising that some of the livelier presentations analyzed the implications of "patent assertion entities" ("PAE") for antitrust and competition law and policy.  Aviv Nevo, DAAG at the United States Department of Justice, gave the lunchtime keynote address on "Antitrust and IP," Carl Shapiro and Fiona Scott Morton, economics professors at the University of California, Berkeley, and Yale University School of Management, respectively, presented a study entitled "Strategic Patent Acquisitions,"  and William P. Rogerson, professor of economics at Northwestern University, moderated a panel on "Competition Policy and Intellectual Property."  Kind words about patent trolls were rare.  One of the wittiest remarks at the conference was made by Richard J. Gilbert, professor of economics at the University of California, Berkeley, who, in analogizing real and intellectual property, and contrasting the uncertainty of patent rights, said, "A tenant usually knows if she lives in the landlord's building and has to pay rent."  The ease with which this remark sparked enthusiastic laughter in an audience filled with the who's who of antitrust and competition economists, attorneys, and government officials might unsettle patent trolls.

A Bridge Over Troubled Trolls

United States Senators Patrick Leahy (D-Vermont) and Mike Lee (R-Utah) penned a September 15, 2013, indictment of patent system misuse in POLITICO.  Their targets are familiar:  "patent abusers," aka patent trolls.  In an opinion article, Leahy and Lee pull few punches:

The result of this misuse of the patent system is a drag on our economy. It also tarnishes the image of legitimate patent holders. This is not the patent system provided for in our Constitution.

In their article, the senators announce their efforts to reform the U.S. patent system to curb its abuse. Specifically, they state predict that

Our legislation will increase the transparency of patent ownership, protect the customer of a patented product when the manufacturer should really be the defendant and improve the process for reviewing patents at the United States Patent and Trademark Office.

Empirical evidence regarding the actual roles played by patent trolls in impeding or encouraging innovation remains scarce.  Gathering such important evidence should be a priority.  However, on this issue, legislative action seems sure to race ahead of reliable evidence.  Beware, patent trolls, and anyone else mistaken for them:  patent posses are being mustered, and patent gallows built.

The State War Against Patent Trolls

Increasingly, states within the United States have been taking up cudgels against what are variously known as non-practicing entities ("NPEs"), patent assertion entities ("PAE"), and patent trolls.  The anti-patent troll bandwagon has now rolled into the Great Plains.  The attorney general of Nebraska, Republican Jon Bruning has now thrown down the gauntlet, as reported in an article entitled "Nebraska’s attorney general has declared war on patent trolls," published on September 12, 2013, in the Washington Post.  As in other states, one of the legal grounds for opposing patent troll activities in Nebraska is the state unfair competition law.  As state action against patent trolls gather speed, fewer and fewer bridges may remain under which trolls may hide.

Patently Funny Seeds Of Discord

The Daily Show has shown a laudable fascination with patent law over the past year.  Its latest foray into patent doctrine involves a report on the patenting of genetically-engineered seeds, entitled "Monsanto & Seed Patent Laws."  Thanks to biotechnology patent law genius Kevin Noonan, one of the founding Patent Docs, for directing me to this story.

Dear Life

Loss of biodiversity is one of the great crises facing humanity and the earth it inhabits.  Unlike greenhouse gas accumulation, diminution of the ozone layer, and most forms of pollution, loss of biodiversity is irreversible.  Even if the most optimistic hopes for deextinction are one day realized, and individual species are indeed revived, living communities and ecosystems are far too complex ever to be faithfully reconstituted.  British newsmagazine The Economist includes an in-depth special report on biodiversity in its September 14th-20th, 2013, issue, entitled "Hang on - How economic growth will help prevent extinctions."  The report ends with the following bold admonition:

Many in the environmental movement regard economic growth and technological progress as enemies of biodiversity. Actually, they are its friends. Only through more of both can man hope to go on enjoying the company of the 8.7m or so other species with which he was born to share this planet.

Trust The Economist to inject its relentlessly commonsensical, yet simultaneously iconoclastic, perspective into this vital issue.  The cause of biodiversity preservation is so important that all views should be welcomed.

One Patent To Rule Them All

After years of negotiations, false dawns, and frustratingly-high patent prosecution costs, Europe is about receive both a unitary patent and a unified patent court.  The United Kingdom branch of the Association Internationale pour la Protection de la Propriété Intellectuelle ("AIPPI") has published a series of extremely useful slide presentations explaining various aspects of these patent reforms.  Although the full implications of the unitary patent and unified patent court will not be known for years, these AIPPI presentations are highly informative.

Deextinction In Kansas

Deextinction has been in the news in Lawrence, Kansas recently.  On August 21, 2013, the University of Kansas website featured an article entitled "Professor Examining Potential Laws To Regulate De-Extinction," which discussed my involvement with the legal issues surrounding efforts to revive extinct species.  Then, on September 7, 2013, the Lawrence Journal-World published an article entitled "Back from oblivion: The discussion around bringing extinct species back to life," and an accompanying September 9, 2013, blogpost entitled "Taking a Neanderthal out to coffee," for both of which I had the pleasure of being interviewed by reporter Ben Unglesbee.

Professor examining potential laws to regulate de-extinction - See more at: http://news.ku.edu/2013/08/21/professor-taking-lead-potential-laws-de-extinction#sthash.M8QApL54.dpuf

Professor examining potential laws to regulate de-extinction - See more at: http://news.ku.edu/2013/08/21/professor-taking-lead-potential-laws-de-extinction#sthash.M8QApL54.dpuf

Professor examining potential laws to regulate de-extinction - See more at: http://news.ku.edu/2013/08/21/professor-taking-lead-potential-laws-de-extinction#sthash.M8QApL54.dpabout my involvement with deextinction

Competition On Noncompetes

In law school intellectual property classes, a comparison is commonly made between the unenforcability of noncompetition agreements in California and their enforceability in Massachusetts.  These two states have traditionally dominated in high technology and biotechnology industries in the United States.  Right Coast Massachusetts now appears to be tipping towards the Californian Left Coast mentality that noncompetes hinder worker mobility, thereby hampering entrepreneurship.  On September 10, 2013, Massachusetts Secretary of Housing and Economic Development, Gregory Bialecki, testified at hearings held by the Massachusetts Legislature's Joint Committee on Labor and Workforce Development that Massachusetts should both end the enforcement of noncompetition agreements and adopt the Uniform Trade Secrets Act.  Here is an excerpt from his testimony:

We want innovative businesses. A priority of this Administration has been to support and enhance the innovation economy. Massachusetts has long had a vibrant and leading edge in research and the innovative community. Many of the fundamental technological advances like the Internet economy and digital media had beginnings in Massachusetts in the past couple of decades. However, we could do more. We need more start-ups, especially in the technology and bio-tech sectors. Start-ups are good; they create jobs, push innovation to new heights, and retain talent. Many of our current employers, larger and small, report they are unable to attract lateral or advanced talent due to our current laws limiting the mobility of our workforce... 

The Uniform Trade Secret Act (UTSA) has been adopted in 47 other states and the District of Columbia. The UTSA and other tools protect an employer’s trade secrets and proprietary  information, which is fundamentally important. Patents, confidentiality agreements, and trade secrets are more than sufficient to protect legitimate company interests against former employees. Even without non-compete agreements, companies still have a disproportionate ability to litigate against the individual...

For these reasons, we support outright elimination of enforceability of non-comp[eti]tive agreements in Massachusetts combined with adoption of the Uniform Trade Secrets Act.

Though many businesses will have misgivings about these reforms, influential members of the Massachusetts Bar support them.  Perhaps this legal innovation will finally provide the technological edge necessary to solve Massachusetts' most intractable challenge:  how to pahk yah cah in Hahvahd Yahd.