Thursday, February 28, 2013

Cogitas Ergo Sum

The power of suggestion can be quite effective.  Tell people not to think about a pink elephant, and the light reddish pachyderm will dominate their thoughts.  Now, a group of scientists has published results of experiments in the Nature journal Scientific Reports that, apparently, linked the brains of two distinct rats:
Animals assigned to the encoder group were implanted with recording arrays of 32 microelectrodes in the primary motor cortex and after recovery resumed the initial training scheme.  Animals assigned to the decoder group were implanted with arrays of 4 to 6 microstimulation electrodes in the primary motor cortex and were further trained to associate the presence of electrical microstimulation pulses with the correct lever press.
Miguel Pais Veira and colleagues observed something remarkable:  the apparent transfer between individuals of neural impulses correlated with a specific behavior.  The researchers concluded that
The present study demonstrates for the first time that tactile and motor information, extracted in real time from simultaneously recorded populations of cortical neurons from a rat's brain, can be transmitted directly into another subject's cortex through the utilization of a real-time BTBI.  Operation of a BTBI by an encoder-decoder rat dyad allowed decoders to rely exclusively on neural patterns donated by encoders in order to reproduce the encoder's behavioral choice.  ICMS patterns reflecting the number of action potentials recorded from either the encoder rat's M1 or S1 during a single trial were sufficient for decoder rats to repeatedly perform two different tasks, significantly above chance levels, in real-time.
Mister Spock might not be surprised or impressed, but we mere humans ought to be.

Might of the results of these experiments herald the direct transfer of thoughts - even complex ones - from individual to individual?  Perhaps thoughts could be stored electronically, and then delivered when needed.  Maybe people could adopt the thoughts of other people.  Such a possibility might confuse RenĂ© Descartes, transforming "cogito ergo sum" into "cogitas ergo sum."

Wednesday, February 27, 2013

Over Under Surveillance

On February 26, 2013, the United States Supreme Court ruled, in Clapper v. Amnesty International USA, that litigants challenging the constitutionality of 50 U.S.C. 1881a - added to the the Foreign Intelligence Surveillance Act ("FISA") in 2008 - lacked standing to sue.  This recent amendment to FISA allows

the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval.  [Footnote omitted.]
Those challenging section 1881a argued that

they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future.
A five to four majority of Supreme Court justices disagreed.  They held that

respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm.
Because of this, the Court reversed and remanded a judgment by the Second Circuit Court of Appeals that had favored the challengers.

Privacy in electronic communications is fraught with peril.  Both governments and nongovernmental entities often intercept private messages or data.  Rights to electronic privacy have expanded, but threats to that privacy have increased even more quickly.  Caveat missor!

Tuesday, February 26, 2013

No Longer Solely Food For Thought

Bjorn Lomborg, the original "Skeptical Environmentalist," noted in an editorial, on February 26, 2013, that "Golden Rice," a genetically-modified ("GM") form of brown rice rich in vitamin A, has been approved as a crop in the Philippines.  In it, he links delays in making Golden Rice available for planting and consumption to opponents of GM crops:
Most ironic [of the criticisms of Golden Rice] is the self-fulfilling critique that many activists use. Greenpeace calls golden rice a failure because it "has been in development for almost 20 years and has still not made any impact on the prevalence of vitamin A deficiency". But, as Ingo Potrykus, the scientist who developed golden rice, has made clear, that failure is due almost entirely to relentless opposition to GM foods, often by rich, well-meaning Westerners far removed from the risks of vitamin A deficiency.
Can Golden Rice can help alleviate vitamin A-deficiencies in the developing world better and more inexpensively than existing vitamin supplementation or fortification programs?  This question will soon no longer be solely food for thought, but food for nutrition and medicine as well.

Monday, February 25, 2013

Baseball's Evil Empire

It's official:  the New York Yankees are the "Evil Empire" of baseball.  So ruled the United States Trademark Trial and Appeals Board ("TTAB") on February 8, 2013, in an opposition proceeding brought by the Yankees against a trademark applicant who had sought to register the phrase "EVIL EMPIRE."  The origin of the association between this phrase and the Bronx Bombers was recounted by the TTAB:

Both applicant and opposer agree that the term EVIL EMPIRE, as it relates to baseball and these proceedings, was coined in 2002 by the president of the rival Boston Red  Sox baseball club upon learning that a sought-after Cuban  pitcher, Jose Contreras, had signed a contract to play for the Yankees and not the Red Sox.  Upon hearing the news of Contreras’ signing, Red Sox club president, Larry Lucchino, is reported to have said:  “The evil empire extends its tentacles even into Latin America.”  The term EVIL EMPIRE has since been taken up by the media, Yankees’ fans, and  detractors as a reference to the Yankees.  The Yankees have “implicitly embraced” the nickname EVIL EMPIRE, including playing ominous music from the soundtrack of the STAR WARS movies at baseball games.  [Footnotes omitted.]
The TTAB held that the trademark applicant could not register the mark "EVIL EMPIRE" because the mark was already too closely associated with the Yankees, observing that

By notices of reliance, opposer submitted hundreds [of] news stories, internet articles, blog entries, and message board postings since 2002 showing that the Yankees are known as the EVIL EMPIRE.  Opposer also has stated that it “implicitly embraced” the EVIL EMPIRE theme by adopting music and other indicia from the STAR WARS movies in connection with games played at Yankee Stadium.  [Footnote omitted.]

The TTAB held that the registration by another party would have been likely to sow confusion among consumers as the origin of goods or services denoted by "EVIL EMPIRE."

Usually, trademarks and servicemarks are the result of investment in consumer recognition and good will.  Interesting, then, that the Yankees have been granted control of the "EVIL EMPIRE" on the apparent basis of ill will.  Darth Trademark is surely smiling.

Friday, February 22, 2013

How Private Is Your Genome?

In its current term, the United States Supreme Court is slated to decide Maryland v. King, a case in which the legal issue is
Whether the collection and analysis of DNA from persons arrested and charged with serious crimes is reasonable under the Fourth Amendment to the Constitution.
In Maryland and many other jurisdictions, laws permitting the collection of DNA samples limit the use of such samples to uniquely identifying suspects via genetic loci that do not code for other phenotypic characteristics.

However, DNA samples could be used for many purposes beyond identification, including the sequencing of a suspects entire genome, and the use of the nucleotide data so generated to diagnose its owner for physical and mental traits, as well as susceptibilities to diseases and disorders.  As genetic sequencing and analysis technology has advanced, it has become only marginally more difficult and expensive to generate much more genetic data than that required for identification.

If knowledge is power, then knowledge of a genome can confer tremendous power over the owner of that genome.  A clear decision by the Supreme Court in Maryland v. King could reset the baseline for rights of genomic privacy.

Thursday, February 21, 2013

Breakthrough Biology Bucks

The first winners of the "Breakthrough Prize in Life Sciences" were announced on February 20, 2013.  Funded by wealthy patrons of the sciences (and most of them scientists themselves) Yuri Milner, Art Levinson, Sergey Brin, Anne Wojcicki, Mark Zuckerberg, and Priscilla Chan, the purpose of the award is "to recognize excellence in research aimed at curing intractable diseases and extending human life."  Each winner of a Breakthrough Prize receives US$3 million "with the aim of providing the recipients with more freedom and opportunity to pursue even greater future accomplishments."  The inaugural 11 laureates are Cornelia I. Bargmann, David Botstein, Lewis C. Cantley, Hans Clevers, Napoleone Ferrara, Titia de Lange, Eric S. Lander, Charles L. Sawyers, Bert Vogelstein, Robert A. Weinberg, Shinya Yamanaka.

Prizes have long been recognized as powerful alternatives to other incentives, such as patents.  They seem to be proliferating as the method of choice for successful business people to promote innovation in fields they favor.  As more and more prizes are created, it may become possible to compare their incentive effects against those of the patent system.  May the best method of spurring innovation win.

Wednesday, February 20, 2013

State Patent Law Is Born

The United States Supreme Court has ruled that a Texas legal malpractice case, whose outcome hinged on the interpretation of the experimental use exception in federal patent law, was properly heard in Texas state court, not federal court.  The case, Gunn v. Minton, was decided on February 20, 2013.

Vernon Minton invented a software system for managing securities trading.  He leased this system to a securities brokerage in 1995, and then, more than a year after the lease began, filed a patent application claiming his software system.  Minton received a patent for his in 2000.  Next, he sued the National Association of Securities Dealers and the associated NASDAQ Stock Market, Inc..  The defendants prevailed by successfully having the patent invalidated on the grounds that it had been on sale for more than a year prior to the filing of a patent application, in violation of 35 U.S.C. 102(b).

Minton filed a motion for reconsideration in federal district court, arguing that his commercial sale of his software system failed to trigger the on sale bar of section 102(b) because the leased use of the software system was experimental in nature.  The court denied this motion.  Minton appealed to the Court of Appeals for the Federal Circuit, but it affirmed.

Finally, Minton sued his attorneys in Texas state trial court for malpractice, arguing that they should have raised the experimental use defense at the outset of litigation.  His former lawyers contended the leased use of the software system had not qualified as experimental use, and, so, this defense had been unavailable.  Before the Texas Court of Appeals, Minton argued that, because his dispute involved an issue of federal patent law, the trial court had lacked jurisdiction to hear his case.  The appeals court disagreed with Minton.  However, the Supreme Court of Texas reversed the court below because the case involved "a substantial federal [patent law] issue."

The U.S. Supreme Court decisively reversed the judgment of the Texas Supreme Court.  Moreover, the Supreme Court largely restricted patent malpractice lawsuits to state, not federal, court, announcing that
we are comfortable concluding that state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law for purposes of section 1338(a).  Although such cases may necessarily raise disputed questions of patent law, those cases are by their nature unlikely to have the sort of significance for the federal system necessary to establish jurisdiction.
Even though, as a consequence, state courts may now have to decide questions of federal patent law to decide state legal malpractice disputes, the Supreme Court appeared unconcerned about any doctrinal messiness that might result.  Such a prediction may be shortsighted.  Furthermore, it may come back to haunt the Supreme Court.  Since state courts are permitted to develop patent doctrine (as some, like Massachusetts, did prior to the American Revolution), differences in interpretation are sure to occur.  For better or for worse, the Supreme Court has now made itself the only court with jurisdiction to decide whether state or federal interpretations of patent law are correct.  As discordance in patent law grows, the Supreme Court may long for the good old days - prior to February 20, 2013 - when the Court of Appeals for the Federal Circuit was allowed to function as their gatekeeper for all substantial patent appeals.

Tuesday, February 19, 2013

Vive Le Brevet Uni

Finally, Europe will have a court to synthesize a single patent law.  On February 19, 2013, representatives of two dozen European Union ("EU") member countries signed a treaty to establish a Unitary Patent Court ("UPC").  The UPC will have both trial and appeals divisions, and will be based in Paris, France.

Like the Court of Appeals for the Federal Circuit, which was created in 1982 to provide the United States with a more uniform federal common law of patents, the UPC will have, as one of its goals, the establishment of more consistent and predictable pan-European patent law.  Once thirteen EU signatories ratify it, the UPC will be able to open for judicial business.  Will a more harmonized European patent law lead to more innovation in Europe?  The EU certainly hopes so, because innovation can spur economic growth, and the EU needs this desperately.  In the meantime, one may hope for some Parisian patent panache and a whole new spirit of joie d'inventer.

Monday, February 18, 2013

Sin Decir Aqua Va

As memes go, Marco Rubio's Poland Springs eternal.  Was this Rubio's Howard Dean moment?  Naturally, these things do happen in high slakes politics.  Senator Rubio was only testing the water by giving the Republican response to President Obama's 2013 State of the Union address.  Now, however, his reach for a tiny plastic bottle has gotten him in hot water, while, ironically, pouring cold water on his presidential candidacy.  He has tried to treat the incident as water off a duck's back, get his political head back above water, and forget about his aquatic lurch to the left as so much water under the bridge.  Meanwhile, the tide rises for another future contender for Republican greatness.  Even though he is more nominally suited for aquatics than Rubio, he prefers Tea Parties to bottled water, and spent his early youth in landlocked Alberta:  Senator Ted Cruz.

Wednesday, February 13, 2013

All The Products Fit To Print

In his February 12, 2012, State of the Union address, President Barack Obama highlit a technology with huge implications for manufacturing:
There are things we can do, right now, to accelerate this trend [towards more manufacturing in the United States]. Last year, we created our first manufacturing innovation institute in Youngstown, Ohio. A once-shuttered warehouse is now a state-of-the art lab where new workers are mastering the 3D printing that has the potential to revolutionize the way we make almost everything.
What he did not mention was that 3D printing may also democratize manufacturing, allowing individuals to make, repair, or modify products at home for the mere price of raw materials and electricity.  In addition, this technology is destined to challenge intellectual property law by facilitating inexpensive and high-fidelity copies of goods protected by patent, copyright, or trademark.  Can it be long before a Digital Millennium Copyright Act-like legal response materializes?

Thursday, February 7, 2013

Nothing Under The Sun That Is Made Of Man

As part of the SCOTUSblog symposium on the AMP v. Myriad case currently before the United States Supreme Court, my short symposium article, "Nothing Under The Sun That Is Made Of Man," was published on February 7, 2013.  To summarize, I argue that the Supremes will answer "No" to their question, "Should human genes be patentable?," and will be motivated by a longterm trend prohibiting the patenting of human beings.  I plan to publish a full article about this issue soon after the Supremes decide the case this term.

Wednesday, February 6, 2013

Patently Negative

Two Washington University Professors Michele Boldrin and David Levine, who are also Research Fellows at the Federal Reserve Bank of Saint Louis, have published their latest critique of the patent system.  Their lead article in the Journal of Economic Perspectives (Volume 27, Number 1, Winter 2013, pages 3-22) is entitled "The Case Against Patents."  Here is an excerpt summarizing their argument:
The case against patents can be summarized briefly:  there is no empirical evidence that they serve to increase innovation and productivity, unless productivity is identifified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity.  This disconnect is at the root of what is called the “patent puzzle”: in spite of the enormous increase in the number of patents and in the strength of their legal protection, the US economy has seen neither a dramatic acceleration in the rate of technological progress nor a major increase in the levels of research and development expenditure.
Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives to invent, the general equilibrium effect on innovation can be negative.  The historical and international evidence suggests that while weak patent systems may mildly increase innovation with limited side effects, strong patent systems retard innovation with many negative side effects.  More generally, the initial eruption of innovations leading to the creation of a new industry—from chemicals to cars, from radio and television to personal computers and investment banking—is seldom, if ever, born out of patent protection and is instead the fruit of a competitive environment.
In their 2008 book, "Against Intellectual Monopoly," Boldrin and Levine argued that both patents and copyrights impose substantial negative effects on society, although trademarks might be more benign.

Professor Bill Tomlinson and I have also studied the patent system using a participatory computer simulation system called The Patent Game.  We have published our experimental results thus far in three articles:  (1) Patents and the Regress of Useful Arts, (2) Patent Expertise and the Regress of Useful Arts, and (3) Property Rules, Liability Rules, and Patent Law:  One Experimental View from the Cathedral.  In 2010, I was invited to present our results in a Google TechTalk at Google headquarters in Mountain View, California.

Abraham Lincoln might disagree with "The Case Against Patents."  His view of the patent system was positively sublime:
In the world's history certain inventions and discoveries occurred of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. Of these were the art of writing and of printing, the discovery of America, and the introduction of patent laws. [Emphasis added]
It is nothing short of remarkable, in 2013, we still appear to know very little about the costs and benefits of patents, a system of incentives that has been in use to encourage innovation for more than 500 years - and whose use has been increasing rapidly all around the world.

Tuesday, February 5, 2013

Wolverine Woes

That famous mustelidophile, W.C. Fields, once complained that "Some weasel took the cork out of my lunch."  Lovers of liquid lunches need lie awake no longer, for the largest of the weasels - the wolverine (Gulo gulo) - may be headed into oblivion in the lower 48 United States.  So dire is the plight of the "glutton" that the United States Fish and Wildlife Service proposed, on February 1, 2013, to list the wolverine as "Threatened" under the Endangered Species Act.  Without effective conservation measures, the wolverine may become an ex species known only as one of the X-Men.

Monday, February 4, 2013

SCOTUSblog On Human Gene Patents

This week, SCOTUSblog will feature an online symposium to discuss the AMP v. Myriad Genetics case currently before the United States Supreme Court.  The Supremes are considering the following question:  "Are human genes patentable?"  I and several of my colleagues have been asked to participate.  Feel free to follow the discussion on SCOTUSblog.  I will also provide updates here.  This should be a lot of fun, and, perhaps, even a tad important.