Thursday, October 31, 2013

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!

Wednesday, October 30, 2013

Roger Daltrey FĂȘtes 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."

Tuesday, October 29, 2013

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  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.

Monday, October 28, 2013

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.

Sunday, October 27, 2013

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.

Friday, October 25, 2013

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.

Tuesday, October 22, 2013

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?

Friday, October 18, 2013


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.

Thursday, October 17, 2013

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.

Tuesday, October 15, 2013

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.

Monday, October 14, 2013

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 SSRNHere 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.

Friday, October 11, 2013

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.

Thursday, October 10, 2013

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.

Tuesday, October 8, 2013

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.

Saturday, October 5, 2013

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.