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.

How Bout Them Apples?

The magazine Fast Company has compiled a fascinating history of design at Apple Inc..  As the originator, or sometimes perfecter, of many iconic designs in both software and hardware, Apple has become increasingly reliant on good design - not to mention design patent protection - to distinguish itself from copycat or sloppycat competitors.  If, as Goethe wrote, "Architecture is frozen music," Apple design, at its best, can reach the level of defrosted jazz.

Put Upon By Putin

President Barack Obama appears to have fallen victim to the diplomatic equivalent of an epaulet mate.  Hemmed in, on one side, by Secretary of State John Kerry's fanciful suggestion that Syria surrender its stockpile of chemical weapons to the international community, and, on the other side, by his erstwhile ally David Cameron's ill-fated decision to seek Parliamentary approval for military action to punish Syria for allegedly using chemical weapons against its own civilians,  Obama has been pushed to the edge of policy paralysis by Congress and public opinion.  Clichéed though it may be, Russian President Vladimir Putin appears to have proven himself a master at diplomatic chess by immediately accepting Kerry's offhand offer.  Efforts to build support for military strikes against Syria have struck out - at least for now.

Pip Pip, EPIP!

For almost a decade, EPIP ("European Policy for Intellectual Property") Association has been the leading scholarly organization for European intellectual property law.  As its website explains, "EPIP is an international, independent, interdisciplinary, non-profit association of researchers, that grew out of a network financed by the European Commission from 2003 to 2005."  On September 5th and 6th, 2013, the 8th Annual Conference of the EPIP Association was held in Paris, graciously hosted by Telecom ParisTech.  I was honored to deliver a keynote address on the unpatentability of inventions based on structures of, and processes carried out by, human beings.  The excellent full program is available here.  The conference was very well attended by an impressive and friendly array of scholars, attorneys, and policymakers from across Europe and beyond.  This year's EPIP conference may be over, but "We'll always have Paris."

Microsoft's Phoney Patents

After a brief and inelegant pas de deux, Microsoft Corporation has decided to dance solo by spending $US 7.17 billion for Nokia Corporation's mobile phone business and intellectual property.  In its latest effort to become a contender in mobile phones, Microsoft announced on September 3, 2013, that it would acquire both Nokia's "devices and services business" ($US 4.99 billion) and a "broad intellectual property license" ($US 2.17 billion).  Naturally, patents are at the heart of this massive bet.  Microsoft will acquire 8,500 design patents and a license to roughly 30,000 utility patents and patent applications.  Whatever its future as a purveyor of services and devices, Microsoft has now solidified its status as one of the premier patent hegemons.