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.