Tuesday, November 25, 2014

Fewer Calories Via More Data

The trend towards obesity among Americans has an air of mystery to it.  Many causes have been suggested.  These include overzealous advertising, hormones in drinking water, less active lifestyles, overprocessing of food, and increased portion sizes.  Having weighed its options, the United States Food and Drug Adminstration ("FDA") has decided to bet on the latter directly by proposing final rules mandating that restaurants and vending machines provide accurate caloric information on the foods and alcohol they sell.  This decision places a heavy burden on a single potential cause for the obesity epidemic.  The FDA hopes that easy availability of caloric content will tip the scales in a positive direction by nudging consumers towards healthier lower calorie food and smaller portions of higher calorie food.  Though both food inputs and exercise outputs are crucial to combating obesity, the FDA should be lauded for helping to satisfy consumers' huge appetite for quality information about food.

Monday, November 24, 2014

Innovation Rights

On October 2nd and 3rd, 2014, Michigan State Law Review held a fascinating symposium entitled "Public Domain(s): Law, Generating Knowledge in the Information Economy".  I was delighted to be invited to speak as part of the "Beyond Intellectual Property" panel, along with Profs. Sean Pager and Jorge Contreras.  Based on an article Eric von Hippel and I have coauthored, the title of my talk is "Innovation Rights" (or, alternatively, "Innovation Wetlands").  Here is a video of our panel;  I begin speaking at 44:44.

One of the highlights of the event was a dinner reception held at the Eli and Edythe Broad Art Museum, whose striking architecture is soon likely to be featured in Batman v. Superman:  Dawn of Justice.  Thank you very much to the Law Review staff and College of Law faculty for holding such an enjoyable event.

Thursday, November 20, 2014

The Future Of Intellectual Property

I just stumbled upon a FORA.tv video recording of a talk I gave at the 2011 Open Science Summit, held at the Computer History Museum in Mountain View, California.  Also on my panel was Stephan Kinsella.  Together, the Summit gave our panel the somewhat apocalyptic title "The Future (and End?) of 'Intellectual Property.'"

Friday, November 14, 2014

The Prosocial Contract

On November 13, 2014, the Supreme Court of Canada substantially changed Canadian contract law.  In Bhasin v. Hrynew, the unanimous Court mandated that parties to contracts play nicely with each other.  Until now, the Court complained,

Canadian common law in relation to good faith performance of contracts is piecemeal, unsettled and unclear.
Writing for the Court, Justice Thomas Cromwell concluded
from this review [of contract law doctrine] that enunciating a general organizing principle of good faith and recognizing a duty to perform contracts honestly will help bring certainty and coherence to this area of the law in a way that is consistent with reasonable commercial expectations.
Cromwell then explained the new legal standard of  Canadian contract law:
I would hold that there is a general duty of honesty in contractual performance. This means simply that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. This does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is a simple requirement not to lie or mislead the other party about one’s contractual performance. Recognizing a duty of honest performance flowing directly from the common law organizing principle of good faith is a modest, incremental step.
Dudley Do-Right would approve.

Monday, November 10, 2014

Conservation Viewpoints And Datapoints

Professor Jane Lubchencko (Oregon State University) and biologist Heather Tallis (The Nature Conservancy) have published a comment in Nature magazine arguing for conservationists to transcend traditional divisions over whether nature should be protected for reasons of intrinsic value, instrumental value, or both.  Appearing in the November 6, 2014 issue, their article, entitled "A call for inclusive conservation," suggests emphasis on two approaches:  valuing viewpoints from all constituencies;  and applying a rigorous, data-driven approach to decision-making.  As the authors write,
It is time to re-focus the field of conservation on advancing and sharing knowledge in all relevant disciplines and contexts, and testing hypotheses based on observations, experiments, and models [footnote omitted].
They characterize their
unified and diverse conservation ethic [as] one that recognizes and accepts all values of nature, from intrinsic to instrumental, and welcomes all philosophies justifying nature protection and restoration, form ethical to economic, and from aesthetic to utilitarian.
In addition, they demand that conservation efforts, however motivated, be
underpinned by a stronger focus on synthesizing and expanding the evidence base that can identify what works and what fails in conservation so that we can move from philosophical debates to rigorous assessments of the effectiveness of actions.
Biodiversity is under relentless assault around the world, with especially dire losses likely to occur within tropical rainforests and coral reefs.  Unity of purpose and rigor of method should be welcomed as a wise response.

Monday, November 3, 2014

Myriad North

The Children's Hospital of Eastern Ontario (CHEO) filed a statement of claim on November 3, 2014, asking the Federal Court of Canada to invalidate claims to human genomic DNA and methods of diagnosis using this DNA and, alternatively, to declare uses of such DNA and diagnostic methods noninfringing.  The Canadian patents at issue, CA 2,240,737, 2,336,236, 2,337,491, 2,369,812, and 2,416,545, are all related to the diagnosis of a genetic condition called Long QT Syndrome.  This excerpt from the statement of claim presents the main medical/legal issue:
6.  Long QT syndrome ("Long QT") is an inherited cardiac disorder affecting about 1 in 3000 to 1 in 5000 people, in which the heart takes too long to recharge after each beat.  Patients with Long QT may experience seizures, cardiac arrest or sudden death. 
7.  Symptoms of Long QT can present at any time from infancy to middle age.  Sudden death is the first sign of the disease in 10 to 15 percent of affected individuals. 
8.  Treatment is available to prevent fainting, cardiac arrest and sudden death.  Therefore diagnosis of Long QT is extremely important. 
9.  Long QT is known to be associated with mutations in 13 humans genes, five of which are the subject of unexpired Canadian patents.  These five genes are KCNQ1, KCNH2, KCNE1, KCNE2, and SCN5A (the "Patented Long QT Genes"). 
10.  The Patented Long QT Genes encode for human proteins involved in cardiac ion channel function.  Certain mutations in these genes can disrupt the normal function of cardiac ion channels, resulting in the symptoms of Long QT. 
11.  Presently, no laboratory in Ontario has obtained approval from the Ontario Government to conduct on-site genetic screening for Long QT.  The Long QT Patents are currently preventing such testing from being approved and conducted for the benefit of Ontario patients.
On June 13, 2013, the United States Supreme Court rendered genomic human DNA patent-ineligible subject matter in its AMP v. Myriad decision.  Canadian courts, including, ultimately, the Supreme Court of Canada, are likely to arrive at the same result.  As I have previously discussed at LEXVIVO, and published as The Unpatentable Human Being, people cannot be patented.  This principle applies as strongly in Canada as elsewhere.

Monday, October 27, 2014

Evolution's Solutions

Carl Bergstrom (Professor of biology at the University of Washington) and several colleagues published a brilliant article on October 17, 2014, in the leading journal Science on how insights from evolutionary biology could be used to solve an array of major global problems.  Entitled "Applying evolutionary biology to address global challenges," this article offers powerful evolutionary approaches to facing challenges of two types:
The first arises from cancers, pathogens, and pests that evolve too quickly and the second, from the inability of many valued species to adapt quickly enough. Applied evolutionary biology provides a suite of strategies to address these global challenges that threaten human health, food security, and biodiversity.

Evolutionary biological approaches to solving problems merit close attention and wide adoption.

Monday, October 20, 2014

Thursday, October 16, 2014

Foxy Phylogenetic Findings

The red fox (Vulpes spp.) is earth's most widely distributed terrestrial carnivore, its natural range encompassing North America, Eurasia, and northern Africa.  Having been introduced Down Under by British settlers, this canine is now also found throughout Australasia.  On September 25, 2014, Mark Statham et al. published a detailed phylogeography of the red fox, which answered several questions biologists have long debated about vulpine origins, evolution, and biogeography.  Their article in the journal Molecular Evolution, entitled "Range-wide multilocus phylogeography of the red fox reveals ancient continental divergence, minimal genomic exchange and distinct demographic histories", includes the following evolutionary insights:
Analyses of 697 bp of mitochondrial sequence in ~1000 individuals suggested an ancient Middle Eastern origin for all extant red foxes and a 400 kya (SD=139 kya) origin of the primary North American (Nearctic) clade. Demographic analyses indicated a major expansion in Eurasia during the last glaciations ( ~50 kya), coinciding with a previously described secondary transfer of a single matriline (Holarctic) to North America. In contrast, North American matrilines (including the transferred portion of Holarctic clade) exhibited no signatures of expansion until the end of the Pleistocene ( ~12 kya).
Samples of nuclear DNA were also sequenced from a subset of the above thousand foxes portions of whose mitochondrial DNA were sequenced.  What emerges are two long-separated phylogenetic lineages of red foxes - one North American and the other Eurasian - with no natural biological truck nor trade between them.  To adapt an observation made by Redd Foxx to make it applicable to the red fox, "Phenotype may be skin deep, but a genotype goes clear to the bone."

Improvements in the speed, efficiency, and cost of automated DNA sequencing increasingly allow huge genomic studies to reveal detailed evolutionary patterns at global scales.  Not only does such research resolve questions about red foxes, it may also shed light on the evolution of our own lineage (e.g., Fu et al. 2013) and disease-causing organisms like Ebola (e.g., Gire et al. 2014).

Friday, October 10, 2014

Seeds Of Discord

Fascinating issues continue to swirl around lawsuits filed against Syngenta for its domestic sales of United States-licensed Agrisure Viptera (MIR162) corn.  The first of these suits, Cargill v. Syngenta, was previously discussed at LEXVIVO ("Growing Influence of Chinese Law").  Syngenta is facing a growing number of lawsuits, including several class actions.   Feed Navigator, a journal that provides "Breaking News on the Global Animal Feed Industry," interviewed me for a story it published on October 10, 2014, entitled "Syngenta case shows US market is not impervious to foreign rules:  legal expert."  One suggestion I made in this article is that, however uncomfortable impingement upon national sovereignty may feel, companies in the United States are likely to come under increasing pressure to comply not simply with domestic regulations, but with regulations of those foreign countries whose markets U.S. companies wish to serve.  And, in doing so, the United States joins almost universal league of countries that have traded sovereignty for market access. 

Monday, September 29, 2014

Never Be Royals Suddenly Kings

For 29 years, fans of the Kansas City Royals have been craving "a different kind of buzz."  This year their team finally "cracked the code" by winning a wild-card berth in the Major League Baseball playoffs.  When Lorde wrote her George Brett-inspired megahit song, Royals, most baseball fans outside Kansas City could claim "no postal code envy."  Now, they may regret that they'll "never be royals," while Royals fans get a chance to "live that fantasy."

Friday, September 26, 2014

Saurians Set Sail

The theory of island biogeography posits that the amount of biodiversity - usually species richness - present on a landmass is positively correlated to the area of the landmass and negatively correlated to the distance the landmass lies from other landmasses.  In general, the larger a landmass, the lower the rate at which species tend to go extinct, but the further the landmass is from other source populations, the less likely will be replenishment via immigration.

In an elegant study on the island biogeography of Anolis lizards throughout the Caribbean, Helmus et al. suggest that economics, rather than natural processes, has become a dominant driver of biodiversity.  As they explain,
Economic isolation determines Caribbean biodiversity in the Anthropocene—both exotic and present-day (that is, native + exotic) anole richness were negative functions of economic isolation.
The authors identify commercial shipping as a major culprit for remixing the species complements of islands throughout the Caribbean.  These days, stowaway Anolis lizards seem to be island hopping less on logs or leaves than on massize metal container ships sailing from port to port.  Forget leaping lizards;  sailing lizards may be more accurate.

Wednesday, September 17, 2014

Growing Influence Of Chinese Law

Imagine a company ("AgCo") complies with all relevant United States laws in inventing, producing, marketing, and selling seeds of an innovative genetically-modified corn plant ("UberCorn") within the United States.  Imagine, further, that farmers buy those seeds to grow corn whose kernels subsequently mix with kernels from other breeds of corn in common storage facilities owned by an agricultural commodities trading company ("TradeCo").  If TradeCo then ships that corn mixture overseas to China, where the entire mixture is banned from importation due to the presence of some UberCorn, does TradeCo have a legitimate cause of action against AgCo for "contaminating" the corn mixture with UberCorn?  Such a drama is currently playing out in the Louisiana 40th Judicial Court Cargill, Inc. filed suit against Syngenta on September 12, 2014, for allegedly violating its duty of care to the corn industry by selling its genetically-modified, insect-resistant Agrisure Viptera (MIR162) corn in the U.S..  I had the pleasure of being interviewed by Reuters' Andrew Chung for an article on this case published on September 16, 2014.  Agrisure Viptera was approved in the U.S. for commercial cultivation in 2010.  However, China has not yet approved the import of this variety of corn.  A state court just west of New Orleans now must grapple with a fascinating legal issue:  can Chinese law trigger liability in the U.S. for actions taken in the U.S. that comply fully with U.S. law?  Like corn, the influence of Chinese law is also growing around the world.  

Wednesday, September 10, 2014

On The Up And Up

According to the World Meteorological Organization ("WMO"), 2013 was a record year for atmospheric greenhouse gases.  On September 9, 2014, the WMO GREENHOUSE GAS BULLETIN reported the following:
The latest analysis of observations from the WMO Global Atmosphere Watch Programme shows that the globally averaged mole fractions of CO2, CH4 and N2O reached new highs in 2013, with CO2 at 396.0±0.1 ppm, CH4 at 1824±2 ppb and N2O at 325.9±0.1 ppb. These values constitute, respectively, 142%, 253% and 121% of pre-industrial (before 1750) levels. The atmospheric increase of CO2 from 2012 to 2013 was 2.9 ppm, which is the largest year to year change from 1984 to 2013.
The climate is an extremely complex and dynamic system, so reasons for this recent rapid rise in measured atmospheric greenhouse gases remain poorly understood.  Hypotheses could include limits on the capacities of the oceans or forests to absorb additional carbon dioxide.  Determining the causes of this greenhouse gas spike is devoutly to be wished.

Tuesday, September 9, 2014

Franklin Finally Found

No one expressed it better than Stan Rogers:
Ah, for just one time I would take the Northwest Passage,
To find the hand of Franklin reaching for the Beaufort Sea,
Tracing one warm line through a land so wide and savage,
And make a Northwest Passage to the sea.
On September 9, 2014, just as the snow began to fall in earnest in Resolute, Nunuvut, the government of Canada announced that one of the ships from the ill-fated Franklin Expedition had finally been located.  Although the precise identity of the ship - HMS Erebus or HMS Terror - is unknown as yet, this discovery marks huge progress in solving the mystery of what happened to Sir John Franklin and his crews after they set sail from England in 1845 to find and navigate the Northwest Passage.  They were lost in 1846.  Now we may discover why.

Tuesday, September 2, 2014

Organ Transplant Crisis

A group of concerned scholars has written "An Open Letter to President Barack Obama, Secretary of Health and Human Services Sylvia Mathews Burwell, Attorney General Eric Holder and Leaders of Congress" on "HOW TO END THE WAIT FOR ORGAN TRANSPLANTS."  I am one of the initiating signers of the letter, which
calls for action to increase kidney donations by implementing pilot studies that will evaluate whether government regulated and provided benefits to donors will result in more kidneys and do so in ways that safeguard the rights and health of donors.
 We hope this initiative may be a step towards helping alleviate the current crisis in organ donation.

Friday, August 29, 2014

Okie Joe's No More

The best barbeque restaurant - Oklahoma Joe's BBQ - in the best barbeque town - Kansas City - is going native.  The home of the Z-Man, named by Anthony Bourdain as "One of Thirteen Places to Eat Before You Die," and third on Yelp's list of the top 100 places to eat, Okie Joe's announced it will become Joe's Kansas City by the end of 2014.  Subtle signs of this transition have been around for several years, including the expurgation of "Oklahoma" from the names of the sauce and fries seasoning.  To paraphrase the Bard,
O! be some other name:
What’s in a name? that which we call a rib
By any other name would taste as sweet;
So Okie Joe's would, were it not Okie Joe's call’d,
Retain that dear perfection which it owes
Without that title.
Even so, many will lament the tossing of the original moniker onto the dustbins of history.

Friday, August 22, 2014

New Who

The most venerable television science fiction series, Doctor Who, renews itself again on BBC Television on August 24, 2014.  Fan from the very first Doctor, William Hartnell, and brilliant portrayer of political vulgarian extraordinaire, Malcolm Tucker, Scottish actor Peter Capaldi dons the mantle of the most famous Time Lord in the 242nd canonical television Doctor Who adventure, entitled Deep Breath.  I will attend a première party of the Twelfth Doctor's first episode dressed as my favourite Third Doctor, who was played by Jon PertweeDaleks, beware!  The Doctor is back.

Thursday, August 21, 2014

Significant Conservation

In response to a new federal government interpretation of the Endangered Species Act ("ESA"), Profs. John A. Vucetich (Michigan Technical University) and Michael Paul Nelson (Oregon State University) published an interesting critique on August 20, 2014, of how the ESA phrase "throughout all or a significant portion of its range" should be understood.  In their view, the proposed new conservation approach by the United States Fish and Wildlife Service and National Marine Fisheries Service could result in isolated relict populations of once-widespread species instead of protection and restoration of species across their historical ranges.  Vucetich and Nelson suggest that the new statutory interpretation "falls far short of the conservation aspirations the law once embodied."  The ESA has long been beloved of the public, regardless of political stripes, so wise and effective implementation of its goals remains sound public policy.

Thursday, August 14, 2014

Remix Species

Tions and ligers, and pizzlies, oh my!  The August 17, 2014, New York Times Magazine features a timely article about hybridization among species, entitled "Should You Fear the Pizzly Bear?". Although there is little coverage of the raging scientific debate over what "species" are, and whether they even exist, the discussion of how habitat alteration, overhunting, and climate change may be driving widespread genomic remixture across previously-divergent phylogenetic lineages.  As Dr. Peter Venkman exclaimed in Ghostbusters, "dogs and cats living together... mass hysteria!"

Wednesday, August 13, 2014

Rise Of The Science Ph.D.

Few doctoral graduates in biology, physical sciences, and engineering become tenure-track professors.  In fact, very few - ~15% - apparently do.  In Ph.D.'s Come out of the Closet, the journal Science discusses where doctoral scientists actually do end up.  What makes this article rather remarkable is that it avoids the usual lamentations of this phenomenon as a loss or waste of talent.  Instead, it portrays an anonymous doctoral student's trajectory towards harnessing his Ph.D. for attractive and fulfilling work outside academia.  Indeed, science doctorates are increasingly seen as highly-desirable indicia of merit in places like Silicon Valley and the Route 128 necklace.  The day may be approaching when the prevailing assumption is that one seeks a Ph.D. in computer science, mechanical engineering, genetics, analytical chemistry, or physics not to become a professor, but, rather, to pursue one of the myriad other careers for which a science doctorate is superb preparation. 

Tuesday, August 12, 2014

Endless Forms Most Beautiful

The Howard Hughes Medical Institute has produced a wonderful short film about Caribbean Anolis lizards, which elegantly illustrates the principles of micro- and macroevolution.  Watch it here:

No one who explores the biodiversity of Caribbean islands can help but marvel at the myriad anoles - stout, slender, long, and short - scurrying through leaf litter and performing arboreal acrobatics to catch insects, find mates, chase off competitors, and evade predators.  The film, Lizards in an Evolutionary Tree, features the research of Professors Jonathan Losos (Harvard University Department of Organismic and Evolutionary Biology) and Sean Carroll (University of Wisconsin Laboratory of Cell and Molecular Biology), and portrays Caribbean anoles to be poster children for Charles Darwin's poetic description of evolution by natural selection in On The Origin of Species (page 490 in the First Edition):
There is grandeur in this view of life, with its several powers, having been originally breathed into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being, evolved.

Thursday, August 7, 2014

Substantial Simianilarity

The Celebes Crested Macaque (Macaca nigra), whose original range encompasses parts of Sulawesi and nearby Indonesian islands, spends most of its waking hours foraging to fruit, leaves, and small animals, pursuing mating opportunities, raising offspring, and socializing with conspecifics.  This would seem to leave little time for copyright litigation.  However, one Celebes Crested Macaque precipitated an infringement furor by grabbing a photographer's camera to take full-body and close-up selfies.  The owner of the camera, Briton David Slater, has laid claim to copyright in these primate photos, though he faces an uphill battle convincing a court that he - not the macaque - is the rightful author of these primate pics.  Shakespeare may have thus far avoided having his works replicated by troupes of monkeys on typewriters.  However, Slater will likely find it challenging to get this one particular monkey off his back.  In fact, perhaps these simian selfies suggest a lucrative new monkey business.

Friday, July 25, 2014

Leadership In The Pink

A new Founders School module, featuring author Daniel Pink, was released on July 24, 2014.
Watch it here:
  Entitled "Leadership and Motivation," this module is the ninth in a series led by Dr. Wendy E.F. Torrance.

Tuesday, July 1, 2014

Lightfoot On Canada Day

To celebrate the 147th anniversary of Canada's birth as an independent country, I can think of no better tribute than one that Gordon Lightfoot wrote to the land and people:  The Canadian Railroad Trilogy.
Happy preantepenultimate sesquicentennial Canada Day!

Friday, June 27, 2014

Mobile Privacy

Anglo-American law has long regarded certain places, things, and contexts, such as the home, as particularly deserving of protection against unreasonable intrusion by the sovereign.  Notably, the Fourth Amendment of the United States Constitution offers robust privacy protection against government searches:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the dual cases of Riley v. California and United States v. Wurie, the United States Supreme Court considerably curbed governmental rights to abridge the privacy of the contents of mobile phones.  In both cases, police arrested suspects allegedly engaged in criminal activities, then seized their mobile phones.  Rather than tagging and bagging the phones, the police searched their digital contents, in both cases revealing information valuable to prosecute the defendants.  However, the Supremes found that these mobile phone searches violated the defendants' privacy rights.

The Court specifically elevates the privacy rights of owners of mobile phones (and, probably, other mobile devices).  Here is how the Court explained the expectation of privacy surrounding mobile phones:
Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house:  A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.
Even in isolation, Riley v. California signals a marked strengthening of privacy rights for individuals in a particularly crucial technological context where people spend an increasing part of their waking lives.  Add in the recent judicial decisions in the European Court of Justice (Google Inc. v. Mario Costeja González) and the Supreme Court of Canada (Regina v. Spencer (2014 SCC 43)), and the tide appears to be turning away from the data panopticon many dread and towards the enhanced digital privacy they crave.

Monday, June 23, 2014


Ever since the United States Supreme Court decided Massachusetts v. Environmental Protection Agency ("EPA"), the EPA has been crafting possible strategies for regulating emission of greenhouse gases as pollutants.  On June 23, 2014, the Supremes released its decision in Utility Air Regulatory Group v. EPA et al., in which it acquiesced to an indirect, but potentially highly-effective, regulatory scheme.  Specifically, the Court held that the Clean Air Act (42 U.S.C. §101) grants EPA authority "to require sources that would need permits based on their emission of conventional pollutants to comply with BACT ["best available control technology"] for greenhouse gases."  In a minor setback for the agency, the Court refused to allow the EPA to shoehorn greenhouse gases and some of their specific sources into existing statutory categories the Court interpreted as incongruous.  Nevertheless, this decision is a major victory for President Obama's administrative agency-based strategy to regulate the reduction of greenhouse gas emissions.

Thursday, June 19, 2014

Alice In Patentland

The United States Supreme Court handed down its decision in Alice Corporation v. CLS Bank International et al. today, June 19, 2014.  Alice Corporation ("Alice") owns United States Patent Nos. 5,970,479, 6,912,510, 7,149,720, and 7,725,375, which the Court describes as
disclos[ing] a scheme for mitigating “settlement risk,” i.e.,the risk that only one party to an agreed-upon financial exchange will satisfy its obligation. In particular, the patent claims are designed to facilitate the exchange of financial obligations between two parties by using a computer system as a third-party intermediary. The patents in suit claim (1) a method for exchangingfinancial obligations, (2) a computer system configured to carry out the method for exchanging obligations, and (3) a computer-readable medium containing program code for performing the method of exchanging obligations.
CLS Bank International et al. ("CLS Bank"),
who operate a global network that facilitates currency transactions, filed suit against petitioner, arguing that the patent claims at issue are invalid, unenforceable, or not infringed. Petitioner counterclaimed, alleging infringement.  After Bilski v. Kappos, 561 U.S. 593, was decided, the District Court held that all of the claims were ineligible for patent protection under 35 U.S.C. §101 because they are directed to an abstract idea. The en banc Federal Circuit affirmed.
The Court found that "the claims at issue are directed to the abstract idea of intermediated settlement."  It further found "that the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention."  The Court also considered the patent-eligibility of "system" claims, deciding that
the system claims are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer;  the system claims recite a handful of generic computer components configured to implement the same idea.
Claims involving computer-readable media were also held unpatentable.

A concurrence by Justice Sotomayor, joined by Justices Ginsburg and Breyer, suggested that claims merely to methods of doing business do not qualify as patentable under the "process" category of 35 U.S.C. §101, and cited the proposition that "processes for organizing human activity" are similarly unpatentable.

The Alice Corporation v. CLS Bank International et al. decision marks the latest in a remarkable series of patent law cases considered by the Supreme Court.  One result is an apparent narrowing of patent subject matter especially relevant to inventions involving algorithms, computer implementation, naturally-occurring chemicals, and medical diagnostic methods.  Determining the precise boundaries of patentability remains devilishly challenging, but the recent trend in Supreme Court's patent jurisprudence appears to head towards a relatively more restrictive view of patent-eligiblity. 

Tuesday, June 17, 2014

A Right To Anonymity

The Supreme Court of Canada has clarified that Canadians possess robust privacy rights on the internet.  In Regina v. Spencer (2014 SCC 43), the Court explored some of the contours of privacy rights in the context of online filesharing.  Justice Cromwell, writing for a unanimous Court, presented the lamentable facts of the case:
The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child pornography through an Internet file sharing program.  They then obtained from the Internet Service Provider (ISP), without prior judicial authorization, the subscriber information associated with that IP address.  The request was purportedly made pursuant to s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA). This led them to the accused.  He had downloaded child pornography into a folder that was accessible to other Internet users using the same file sharing program.  He was charged and convicted at trial of possession of child pornography and acquitted on a charge of making it available.  The Court of Appeal upheld the conviction, however set aside the acquittal on the making available charge and ordered a new trial.
The Court upheld both Spencer's conviction for possession of child pornography and the Court of Appeal's order of a new trial on making these sordid materials available to others.
However, in arriving at its decision, the Court discussed the existence of an "anonymity right" that could, in some circumstances, protect even heinous behavior from the prying eyes of state actors such as the police:
Informational privacy is often equated with secrecy or confidentiality, and also includes the related but wider notion of control over, access to and use of information.  However, particularly important in the context of Internet usage is the understanding of privacy as anonymity.  The identity of a person linked to their use of the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the person’s name, address and telephone number found in the subscriber information.  Subscriber information, by tending to link particular kinds of information to identifiable individuals may implicate privacy interests relating to an individual’s identity as the source, possessor or user of that information.  Some degree of anonymity is a feature of much Internet activity and depending on the totality of the circumstances, anonymity may be the foundation of a privacy interest that engages constitutional protection against unreasonable search and seizure.
According to the reasoning the Court employed in Regina v. Spencer, Spencer's anonymity rights, though important, were outweighed by more important concerns of justice:
The police, however, were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose.  The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute.  While the impact of the Charter‑infringing conduct on the Charter protected interests of the accused weighs in favour of excluding the evidence, the offences here are serious.  Society has a strong interest in the adjudication of the case and also in ensuring the justice system remains above reproach in its treatment of those charged with these serious offences.  Balancing the three factors, the exclusion of the evidence rather than its admission would bring the administration of justice into disrepute.  The admission of the evidence is therefore upheld.
Nevertheless, the Court suggests that there are other circumstances when Canadian anonymity rights may shield unlawful - even heinous - behavior from police search.

Monday, June 16, 2014

Elementary Copyright

In The Sign of Four, Sherlock Holmes declares "I am the last and highest court of appeal in detection."  For at least today, June 16, 2014, Judge Richard Posner (United States Court of Appeals for the Seventh Circuit) is the the last and highest court of appeal in copyright term for Sherlock Holmes.  Judge Posner, writing for a unanimous panel in Klinger v. Conan Doyle Estate, set most of the stories Sir Arthur Conan Doyle wrote about his famous detective free from further encumbrance by copyright.

In this case, Conan Doyle estate argued that
copyright on a “complex” character in a story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain...[T]he fact that early stories in which Holmes or Watson appeared are already in the public domain does not permit their less than fully “complexified” characters in the early stories to be copied even though the stories themselves are in the public domain.
Posner strongly disagreed, even going to far as to suggest that "the estate's appeal borders on the quixotic."  The result is that most of Sherlock Holmes' stories now sit firmly in the public domain, alongside Cervantes Saavedra's adjectivally-cited hero, Don Quixote, awaiting republication, derivation, and all manner of creative uses.  Meanwhile, the Conan Doyle estate is left with the realization that it has been tilting at literary windmills.

Friday, June 13, 2014

Tesla Electrifies Open Source Patenting

With a wry nod to Kansas City DJ Jeffrey Ray Roberts, Tesla CEO Elon Musk announced on June 12, 2014, that "All Our Patent Are Belong To You".  He detailed what he meant by this in an iconoclastic blog post on the Tesla corporate websiteHere is an excerpt:
Yesterday, there was a wall of Tesla patents in the lobby of our Palo Alto headquarters. That is no longer the case. They have been removed, in the spirit of the open source movement, for the advancement of electric vehicle technology...Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology...We believe that applying the open source philosophy to our patents will strengthen rather than diminish Tesla’s position in this regard.
By pledging to "open source" the Tesla patent portfolio, Musk may have done more to spur the open source patenting than all previous efforts combined, including the BioBrick Public Agreement.  Will his gesture succeed?  To reverse Marshall McLuhan, Elon Musk's patent message may be the open source medium.

Thursday, June 12, 2014

Ginned Up Juice

Two federal statutes directly regulate food labeling in the United States.  In essence, the Food, Drug and Cosmetic Act ("FCDA") prohibits misbranding of food, which can include false or misleading ingredient labeling (21 U. S. C. §§331 and 343), while the Lanham Act creates a private cause of action for unfair competition, such as false advertising (15 U. S. C. §1125).  On June 12, 2014, the Supreme Court unanimously (sans Justice Breyer) decided POM Wonderful LLC v. Coca-Cola Company, a case about whether or not the labeling provisions of the FCDA precluded PM Wonderful from suing Coca-Coca for false advertising under the Lanham Act.

The facts of the case are summarized in the decision's syllabus:
Petitioner POM Wonderful LLC, which produces, markets, and sells, inter alia, a pomegranate-blueberry juice blend, filed a Lanham Act suit against respondent Coca-Cola Company, alleging that the name, label, marketing, and advertising of one of Coca-Cola’s juice blends mislead consumers into believing the product consists predominantly of pomegranate and blueberry juice when it in fact consists predominantly of less expensive apple and grape juices, and that the ensuing confusion causes POM to lose sales.
Justice Kennedy, who wrote for the Supreme Court, described specific dispute over ingredient labeling as follows:
Coca-Cola’s Minute Maid Division makes a juice blend sold with a label that, in describing the contents, displays the words “pomegranate blueberry” with far more prominence than other words on the label that show the juice to be a blend of five juices. In truth, the Coca-Cola product contains but 0.3% pomegranate juice and 0.2% blueberry juice.
Both the District Court for the Central District of California and the Ninth Circuit Court of Appeals sided with Coca-Cola, precluding POM Wonderful from suing Coca-Cola for unfair competition.  The Supremes decisively disagreed:
The ruling that POM’s Lanham Act cause of action is precluded by the FDCA was incorrect. There is no statutory text or established interpretive principle to support the contention that the FDCA precludes Lanham Act suits like the one brought by POM in this case. Nothing in the text, history, or structure of the FDCA or the Lanham Act shows the congressional purpose or design to forbid these suits. Quite to the contrary, the FDCA and the Lanham Act complement each other in the federal regulation of misleading food and beverage labels. Competitors, in their own interest, may bring Lanham Act claims like POM’s that challenge food and beverage labels that are regulated by the FDCA.
The Supremes have now clarified that food labeling can be policed by two separate actors at the federal level.  Naturally, the Food and Drug Administration may continue to play a dominant role in enforcing labeling requirements of the FDCA.  However, private firms may also enforce sound labeling practices by bringing suits in federal courts to combat inaccurate or misleading food labeling by competitors.

There is considerable irony in POM Wonderful's victory in the Supreme Court.  The company is currently embroiled in litigation with the Federal Trade Commission over whether or not POM Wonderful impermissibly exaggerated the health benefits of its products.

Wednesday, June 11, 2014

Aussies Question IP

The government of Australia is currently conducting a formal review of competition policy in the Lucky Country.   As part of its review, Australia commissioned a Competition Policy Review Panel to prepare an "Issues Paper" entitled "Competition Policy Review" ("Review").  Although the Review only briefly addresses intellectual property policy, the two paragraphs it does include are worth considering:
2.18  The underlying rationale for governments to grant intellectual property (IP) rights (such as patents, trademarks and copyrights) is that creations and ideas, once known, may otherwise be copied at little cost, leading to under-investment in intellectual goods and services.  However, providing too much protection for IP can deter competition and limit choice for consumers.
Questions:  Are there restrictions arising from IP laws that have an unduly adverse impact on competition? Can the objectives of these IP laws be achieved in a manner more conducive to competition?
Even before the Statute of Monopolies became English law in 1624, officially-sanctioned intellectual property protections, such as patent and copyright, have been in confusing tension with laws intended to promote competition.  It is ambitious for Australia to be asking basic questions about how to harmonize intellectual property laws with those intended to promote robust competition.  Let's hope the Aussies can battle through to some fair dinkum answers.

Tuesday, June 10, 2014

Our Brains, Ourselves

On April 2, 2014, United States President Barack Obama announced the Brain Research through Advancing Innovative Neurotechnologies ("BRAIN") Initiative, whose mission is to “accelerate the development and application of new technologies that will enable researchers to produce dynamic pictures of the brain that show how individual brain cells and complex neural circuits interact at the speed of thought.”  The U.S. National Institutes of Health ("NIH") will help lead this ambitious effort.  To this end, its (BRAIN) Working Group released a report on June 5, 2014, entitled BRAIN 2025: A Scientific VisionThis report begins with a bold assertion unlikely to attract universal agreement among neurobiologists and other scientists who study the complex relationships between brain, cognition, and behavior:
The human brain is the source of our thoughts, emotions, perceptions, actions, and memories;  it confers on us the abilities that make us human, while simultaneously making each of us unique. Over recent years, neuroscience has advanced to the level that we can envision a comprehensive understanding of the brain in action, spanning molecules, cells, circuits, systems, and behavior.
The report ends in a similarly ambitious tone:
The BRAIN Initiative is a challenge and an opportunity to solve a central mystery—how organized circuits of cells interact dynamically to produce behavior and cognition, the essence of our mental lives. The answers to that mystery will not come easily. But until we start, the progress we desire will always be distant. The time to start is now.
Hoping to replicate the successes of the Human Genome Project, President Obama has thrown down the gauntlet to neurobiologists.  Research into the brain is likely to yield many benefits to society.  However, just as complete knowledge of the nucleotide sequence of our genomes is unlikely to offer complete understanding of our genetics, neither is comprehensive mapping of our neural circuits likely to reveal the "essence of our mental lives."  A better scientific description of the brain will certainly shed valuable light on behavior.  However, understanding behavior is unlikely to be as easy as characterizing neurons and neural circuits.   

Friday, June 6, 2014

Two New Biolaw Journals

The field of biolaw is taking wing in many directions.  A signal achievement has been the recognition of an official Biolaw Section at the American Association of Law Schools.  However, biolaw scholarship has lacked a home, instead being scattered throughout numerous unrelated publications.  That may begin to change with the creation of two new academic journals dedicated to biolaw.  The Journal of Law and the Biosciences describes its mission as follows:
The Journal of Law and the Biosciences (JLB) is the first fully Open Access peer-reviewed legal journal focused on the advances at the intersection of law and the biosciences. A co-venture between Duke University, Harvard University Law School, and Stanford University, and published by Oxford University Press, this open access, online, and interdisciplinary academic journal publishes cutting-edge scholarship in this important new field. The Journal contains original and response articles, essays, and commentaries on a wide range of topics, including bioethics, neuroethics, genetics, reproductive technologies, stem cells, enhancement, patent law, and food and drug regulation.
Across the Pond, the BioLaw Journal/Rivista di BioDiritto has announced a similar focus:
BioLaw Journal – Rivista di BioDiritto is a peer reviewed, online law journal focusing on the relationships between law and life sciences under a comparative perspective. According to its interdisciplinary nature, the Journal hosts contributions in the fields of law, life sciences and bioethics.
The Journal presents articles, commentaries and book reviews which provide an innovative and original source of reference for academics, lawyers, legal and medical practitioners, law students, and anyone interested in national, European and international biolaw.
These two new journals are welcome additions to the burgeoning field of biolaw.

Thursday, May 29, 2014

Unforgettable Rights

In Google Inc. v. Mario Costeja González, the European Court of Justice ("ECJ") ruled, on May 13, 2014, that, under certain circumstances, European Union ("EU") citizens possess a right not to have embarrassing information about them linked to by search engines.  Here is how the ECJ described the basic facts of the case:
On 5 March 2010, Mr Costeja González, a Spanish national resident in Spain, lodged with the AEPD a complaint against La Vanguardia Ediciones SL, which publishes a daily newspaper with a large circulation, in particular in Catalonia (Spain) (‘La Vanguardia’), and against Google Spain and Google Inc. The complaint was based on the fact that, when an internet user entered Mr Costeja González’s name in the search engine of the Google group (‘Google Search’), he would obtain links to two pages of La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively, on which an announcement mentioning Mr Costeja González’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts. 
By that complaint, Mr Costeja González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data. Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr Costeja González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.
The ECJ decided that EU citizens, such as Mario Costeja González, have a limited right to be forgotten on the internet.

However, this case has now been appealed to a much higher court:  Last Week Tonight With John Oliver.  Here is Justice Oliver's verdict on the right to be forgotten:
Despite a brave attempt by the ECJ to erase internet memory, it is likely that John Oliver will have the last laugh.

Friday, May 16, 2014

An Uncommonly Good Knowledge Commons

The Medical User Innovation and Medical Knowledge Commons Workshop is taking place from May 15-17, 2014, at the Engelberg Center on Innovation Law & Policy at the New York University School of Law.  The research projects presented at the workshop have been uniformly fascinating, ranging from innovation in therapies for rare diseases to a brain science information commons to correlates of success in medical device entrepreneurship.  The project I presented is entitled "A Highly Uncommon Commons:  The Evolution of Synthetic Biology Institutions and Democratized Innovation in Medicine."  If the research presented at this workshop results in an edited volume, that book will be a signal contribution to our understanding of innovation.

Friday, May 9, 2014

Synthetic Biology Governance

Bryn Nelson has published an excellent article in the leading science journal, Nature, on some of the legal, ethical, economic, and democratic issues raised by patent and open source models of innovation in synthetic biology.  Entitled Synthetic Biology:  Cultural Divide, the article provides a vivid snapshot of the current state of synthetic biology, a field that is at once exploding in influence and bedeviled with uncertainty about how its DNA building blocks will, and should, be governed.  I was honored that Nelson included me among the synthetic biology scholars he interviewed for his article.  I have previously published several articles on synthetic biology, including Synthesizing Law for Synthetic Biology (2010), DNA Copyright (2011) and Planted Obsolescence: Synagriculture and the Law (2012).  In addition, I was commissioned by the National Academies (with coauthor Dr. Linda Kahl) to write a report, entitled Synthetic Biology Standards and Intellectual Property, that I presented at the National Academies in Washington, D.C., on November 4, 2013.  An article based on this report was recently published as Bringing Standards to Life: Synthetic Biology Standards and Intellectual Property (2014).  The evolution of synthetic biology continues to be fascinating.

Tuesday, May 6, 2014

Hot Science And Heated Policy

One of the most interesting classes I ever took was offered by the John F. Kennedy School of Government and trained students to apply insights from science to the making of sound public policy.  My two professors for the class were William C. Clark and John P. Holdren.  Together they were dynamite.

Holdren has been the Director of the Office of Science and Technology Policy for President Barack Obama since 2009.  One of the projects he has overseen is the third National Climate Assessment (NAC), which was published on May 6, 2014.  Here is an overview of the third NAC by Holdren.

The third NAC is a treasure trove of information about how climate change may affect the United States, in general, and each region of the country, in particular.  One conclusion of this assessment is quite simple:  it's neither the heat nor the humidity, but both simultaneously.

Tuesday, April 29, 2014

Octane Fitness v. Icon Health & Fitness

On April 29, 2014, the United States Supreme Court issued a decision that eases the awarding of attorneys fees to penalize patently bad litigation behavior. Here is how the Supremes describe the controversy in Octane Fitness v. Icon Health & Fitness in the opinion Syllabus:
The Patent Act’s fee-shifting provision authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases.” 35 U.S.C. §285. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378, 1381, the Federal Circuit defined an “exceptional case” as one which either involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith.” Brooks Furniture also requires that parties establish the “exceptional” nature of a case by “clear and convincing evidence.” Id., at 1382. Respondent ICON Health & Fitness, Inc., sued petitioner Octane Fitness, LLC, for patent infringement. The District Court granted summary judgment to Octane. Octane then moved for attorney’s fees under §285. The District Court denied the motion under the Brooks Furniture framework, finding ICON’s claim to be neither objectively baseless nor brought in subjective bad faith. The Federal Circuit affirmed.
The Supremes held "The Federal Circuit’s formulation...overly rigid."  They clarified that
a district court may award fees in the rare case in which a party’s unreasonable conduct — while not necessarily independently sanctionable — is nonetheless so “exceptional” as to justify an award of fees.
In addition, the Court rejected
the Federal Circuit’s requirement that patent litigants establish their entitlement to fees under §285 by “clear and convincing evidence."
Instead, the Supremes explained that
[s]ection 285 demands a simple discretionary inquiry; it imposes no specific evidentiary burden, much less such a high one.
This decision rebalances the power to decide what constitutes an "exceptional" case away from the Federal Circuit, restoring considerable discretion to federal district courts.