Tuesday, December 29, 2020

Accountability With A Capital "Ism"

Several colleagues and I have published a new article, entitled "Accountability with a Capital “Ism”: A Computational Simulation of the Accountable Capitalism Act vs. Delaware Corporate Law", in the Ohio State Technology Law Journal (OSTLJ). Here is the abstract:

In 2018, U.S. Senator Elizabeth Warren proposed S.B. 3348, the Accountable Capitalism Act. This Act seeks to alter corporate behavior to balance the effects of corporate actions across several different stakeholder groups, rather than focusing on the primacy of shareholders as is conventional in many U.S. state corporate laws. It has traditionally been difficult to determine the effects of the law in advance. However, innovative work in empirical legal studies is enabling experimental evaluations of laws through participatory simulation. We implemented such a simulation to compare the effects of the Accountable Capitalism Act vs. Delaware corporate law on director behavior.

We deployed this simulation to 300 human participants via Amazon’s crowdsourcing platform. Building on previous findings that showed that participants assigned to act as shareholder-selected directors and instructed via the Accountable Capitalism Act favored shareholders over other stakeholders in forced-choice contexts, this study found that such participants instructed via Delaware corporate law favored shareholders over other stakeholders as well. However, in a context where the alternate option was one that provided balanced benefits for several stakeholder groups, those instructed via Delaware corporate law placed significantly greater emphasis on shareholders than did those instructed via the Accountable Capitalism Act.

Based on the results from the human participants, we constituted 3000 “virtual boards of directors,” composed of randomly selected groups of study participants assigned to different types of directorships. Results from the virtual boards of directors suggest that boards composed of shareholder-selected directors instructed via the Accountable Capitalism Act led to lower levels of disparity across different stakeholder groups than those composed of shareholder-selected directors instructed via Delaware corporate law. In addition, those composed of 60% shareholder-selected directors and 40% employee-selected directors, as specified in the Accountable Capitalism Act, led to still lower levels of disparity than those composed solely of shareholder-selected directors.

While these findings are based on interactive simulations rather than the real world, and based on the behavior of everyday people rather than business executives, they nevertheless provide experimental evidence that two key aspects of the Accountable Capitalism Act—the requirement for directors to consider the effects of corporate actions on various stakeholder groups, and the representation of employees on corporate boards—both produce results in line with their desired effects. Taken together, these results provide experimental support for the proposition that the Accountable Capitalism Act would lead to more balanced corporate behavior than does Delaware corporate law.

The article is available free here.  Thank you very much to the dedicated and talented staff of the OSTLJ for all their hard work and editorial assistance. 

Monday, December 21, 2020

The Crown Evolves

Viral genomes can mutate rapidly.  Extensive genomic sequencing of SARS-CoV-2 in the United Kingdom during 2020 has identified several distinct phylogenetic lineages.  In a report published on December 19, 2020, the Covid-19 Genomics UK Consortium ("COG-UK") describes several notable features of one these clades, which has been designated B.1.1.7:

Has 17 mutations (14 replacements and 3 deletions) including: T1001I, A1708D, I2230T, SGF 3675-3677 del In the ORF1ab; 69-70 del, Y144 del, N501Y, A570D, P681H, T716I, S982A and D1118H in the Spike; Q27stop, R52I and Y73C in ORF8; D3L and S235F in the N.  Noteworthy N501Y enhances ACE2 binding affinity, 69-70del has immunological role and it is associated with some diagnostics failures, and P681H occurs at the furin cleavage site, known for biological significance in membrane fusion[.]

Worries that rapidly-spreading SARS-CoV-2 B.1.1.7 may be associated with higher infectiousness have led a number of countries to suspend direct flights from the United Kingdom.

Thursday, December 17, 2020

California Dreamin' Of Secession

 My colleague, Professor Bill Tomlinson (University of California Irvine), and I have published an article entitled "Fault Lines: An Empirical Legal Study of California Secession" in the Seattle Journal of Technology, Environmental & Innovation LawHere is the abstract:

Over the last decade, multiple initiatives have proposed that California should secede from the United States. This article examines the legal aspects of California secession and integrates that analysis with findings from an empirical study of public perceptions of such secession. There is no provision in the United States Constitution allowing states, or other political or geographical units, to secede unilaterally. The Civil War was fought to uphold this principle, and the United States Supreme Court confirmed it in its 1869 Texas v. White decision. Nevertheless, numerous instances of secession, both legal and extralegal, have occurred across human history, and there is continuing public interest in secession of various U.S. states, in particular California. We conducted an empirical study with 100 U.S. residents, half from California and half from other U.S. states, via Amazon’s crowdsourcing platform. We found that, while most participants (71%) opposed secession, a significant minority (25%) were in favor of it, with the remainder (4%) unsure. In addition, older people, and people who did not live in California, were statistically more inclined toward secession (37% in both cases) than were younger people (13%) and Californians (15%). Participants identified an array of themes relevant to California secession, including California being an “essential, vital component” of the U.S.; California being “indebted” to the U.S.; the U.S. keeping California “in check”; logistical factors such as “currencies,” “infrastructures,” “trade agreements,” and “a new military”; the “growing fascistic tendencies” of the U.S.; and feelings that California should “fend for themselves.” Other personal/idiosyncratic factors emerged as well, including residents’ concern about needing to “speak Spanish,” it becoming harder to “sell on eBay,” and that the “flags would need to be changed.” Still others were concerned about “violent confrontation” and “civil war.” Taken together, the legal and empirical factors paint a picture of the complexity of California secession, and offer insight into this and other instances of potential sociopolitical breakdown. Although unilateral secession would be illegal under U.S. law, we explore a number of peaceful secessions around the world, and abstract principles from them that may be helpful if California secession were ever to become a possibility. The numerous lines of argument provided by participants in this study, many of which find fault with the directions either of California or the rest of the U.S., help identify the stresses that could cause California to shear off and become a separate nation. While California would be the epicenter of this phenomenon, its aftershocks would likely be felt around the world.

Though most current California Dreamin' is probably about an end to the SARS-CoV-2 pandemic rather than independence, we hope the qualitative empirical data in our article sheds some light on the complex and controversial issue of secession.

Wednesday, December 16, 2020

Andrew W. Torrance On Innovation Hypercycles

For the past few years, I've been working on research project to try to explain differential rates of innovation.  The result is what I call "Innovation Hypercycles".  Here is my TEDx talk on the subject, entitled "Innovation Hypercycles:  The Birth and Death of Technology Hotspots", recorded on January 26, 2020, as part of TEDxQueensU, held at Queen's University, in Ontario, Canada.
I owe heartfelt thanks to Denise and Dave Simpson, their talented daughter, Samantha Simpson, and Samantha's TEDx colleagues for inviting me to this wonderful opportunity to speak about my ideas.

Friday, December 4, 2020

Trees' Company

My wonderful colleagues, Bill Tomlinson (University of California, Irvine), Rebecca Black (University of California, Irvine), M. Six Silberman (IG Metall), Yaqi Xie (University of California, Irvine)Paramdeep Singh Atwal (University of California Irvine), and I just published an article entitled "Judging Corporate Directors by the Companies They Keep: Results from an Interactive Simulation About the Motivations of Corporate Directors", in the University of Pennsylvania Journal of Law & Public AffairsHere is the abstract:

The directors of major corporations are hugely powerful in charting the course of industrial civilization. Who selects those directors, and how those directors make decisions, are therefore both topics of critical importance. Various legal frameworks, such as the Accountable Capitalism Act currently under consideration by the United States Congress, have proposed that shareholders and/or employees should have a say in the director-selection process. We conducted an interactive simulation experiment, based on the Accountable Capitalism Act and Delaware corporate law, with human participants acting as three different types of directors: shareholder-selected directors, employee-selected directors, plus a third, novel form of director, “environment-selected directors.” In this paper, we integrate quantitative and qualitative findings from this experiment to provide novel results about the behaviors of these participants, and the deeper motivations underlying their behaviors. We found a range of potential motivations that could affect directors’ behavior, including obeying regulations, being responsive to changes unfolding in the world, feelings of obligation to the stakeholders that selected them, and pre-existing biases toward or against particular stakeholders. We also found a strong penchant on the part of directors to engage in balancing of interests, even when instructed to favor only one interest, suggesting tension between existing corporate law and the preferences of individual directors. By providing experimental evidence into the motivations that may influence such directors’ behaviors, and in particular exploring the possibility of environment-selected directors, this paper seeks to lay the legal groundwork for broader stakeholder representation on corporate boards.

This article complements "'Environment-Selected Directors': An Interactive Simulation Experiment of Environmental Representation on Corporate Boards", which was published in the summer of 2020 in Ecological Economics, which I previously discussed on August 1, 2020, on Lexvivo in "The Nature Of The Firm".

Wednesday, October 28, 2020


 Now that she has been confirmed and sworn in, Associate United States Supreme Court Justice Amy Coney Barrett will immediately become one of the most influential voices on intellectual property law in the world.  Global law firm Baker Botts has published a nice summary of Associate Justice Barrett's prior judicial decisions, which run the gamut, from trade secrecy and trademark, to copyright and patent law.

Wednesday, October 21, 2020

Diplomatic Immunity

 As SARS-CoV-2 continues to burn an infectious swath around the world, millions have hung their hopes on the timely arrival of an effective vaccine.  China has raced ahead, and is now offering to supply vaccines to countries in the developing world.  The United States, by contrast, seems to be focusing largely on its own interests.  It would be no surprise if this burnishes China image while the humanitarian reputation of the United States, at best, stagnates.

Monday, October 12, 2020

Happy Thanksgiving!

A good friend reminded me of this Canadian classic.  Happy Thanksgiving!

Sunday, October 11, 2020

The Murder Doctrine

 Oral arguments in the copyright case, Google LLC v. Oracle America Inc., took place before the United States Supreme Court on October 7, 2020.  Hear them here:

Among the highlights is an introduction to the newest development in copyright law:  the "Murder Doctrine".

Saturday, October 3, 2020

Carpe Diem, Theater[24]!

 Here is University of Chicago's Radio[24] performing its autumn quarter 2020 trio of plays.  Everything, from the script to the music to the art to the acting, was begun and completed within 24 hours.

 You carried the day, Radio[24].  Bravo!

Thursday, October 1, 2020

The West Is The Best

I came across a recording I had never seen before of The Doors singing The Crystal Ship and Light My Fire on American Bandstand (recorded July 7, 1967).

 A fascinating artifact is Jim Morrison's contract for this performance.  Watching The Doors on stage took me back to my last visit to Cimetière du Père-Lachaise.

Tuesday, September 29, 2020

Not Letting Sleeping Dogs Lie

 I found a stray dog today asleep in a park.  Needless to say, I did not let this sleeping dog lie.

Thursday, September 10, 2020

Defame And Fortune

As Michael Cassio laments in Othello, “Reputation, reputation, reputation! Oh, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.”  William Shakespeare may have believed that, once lost, reputation may be lost for good.  However, the Supreme Court of Canada has reaffirmed that those who believe they have been defamed may have the right to be compensated and try restore their damaged reputations.

In Bent v. Platnick, the Supreme Court of Canada ("Court") dismissed an appeal opposing the rights of a physician to sue an attorney for defamation.  (Le jugement en français de la Cour suprême du Canada est ici.)  In its September 10, 2020, decision, the Court strengthened the legal right to defend one's reputation against negative allegations.  The Court summarized the facts of the case as follows:

B is a lawyer and partner at an Ontario law firm. She is a member and, at the relevant time, was the president‑elect of the Ontario Trial Lawyers Association (“OTLA”). The OTLA is an organization comprised of legal professionals who represent persons injured in motor vehicle accidents. P is a medical doctor who is typically hired through insurance companies to review other medical specialists’ assessments of persons injured in motor vehicle accidents and to prepare a final report with an ultimate assessment of the accident victim’s level of impairment. Following two insurance coverage disputes in which B was acting as counsel for an accident victim, B sent an email to a Listserv (i.e. an email listing) of approximately 670 OTLA members in which she made two statements that specifically mention P by name and allege that, in the context of those disputes, P “altered” doctors’ reports and “changed” a doctor’s decision as to the victim’s level of impairment. B’s email was eventually leaked anonymously by a member of the OTLA and as a result, an article was published in a magazine which reproduced B’s email in its entirety and referred to testimony from B.

P commenced a lawsuit in defamation against both B and her law firm, claiming damages in the amount of $16.3 million. B filed a motion under s. 137.1 of the Courts of Justice Act (“CJA”) to dismiss the lawsuit. The motion judge allowed B’s motion and dismissed P’s defamation proceeding. The Court of Appeal set aside the motion judge’s determination, dismissed B’s motion, and remitted P’s defamation claim to the Superior Court for consideration.
The Court found that the attorney had met her burden because her "email constitutes an expression that relates to a matter of public interest and P’s defamation proceeding arises from that expression."  According to the Court, the burden then shifted to the physician "to show that there are grounds to believe that his defamation proceeding has substantial merit and that B has no valid defence to it".  Having "shown that there are grounds to believe that his defamation proceeding has substantial merit," the Court dismissed the attorney's appeal, allowing the physician to have his day in court.

Four Supreme Court Justices dissented.

The attorney in this dispute has pursued a very different path to that followed by basketball superstar, Charles Barkley, who once said, in response to a comment he found insulting, "My initial response was to sue her for defamation of character, but then I realized that I had no character."

Tuesday, September 8, 2020

Vaccine The Light

On September 8, 2020, the chief executive officers of biopharmaceutical firms AstraZeneca, BioNTech, GlaxoSmithKline plc, Johnson & Johnson, Merck, Moderna, Inc., Novavax, Inc., Pfizer Inc., and Sanofi, all of which are companies engaged in the search for a safe vaccine effective against SARS-CoV-2, signed onto the following pledge:

 We, the undersigned biopharmaceutical companies, want to make clear our on-going commitment to developing and testing potential vaccines for COVID-19 in accordance with high ethical standards and sound scientific principles.

The safety and efficacy of vaccines, including any potential vaccine for COVID-19, is reviewed and determined by expert regulatory agencies around the world, such as the United States Food and Drug Administration (FDA). FDA has established clear guidance for the development of COVID-19 vaccines and clear criteria for their potential authorization or approval in the US. FDA’s guidance and criteria are based on the scientific and medical principles necessary to clearly demonstrate the safety and efficacy of potential COVID-19 vaccines. More specifically, the agency requires that scientific evidence for regulatory approval must come from large, high quality clinical trials that are randomized and observer-blinded, with an expectation of appropriately designed studies with significant numbers of participants across diverse populations.

Following guidance from expert regulatory authorities such as FDA regarding the development of COVID-19 vaccines, consistent with existing standards and practices, and in the interest of public health, we pledge to:

  • Always make the safety and well-being of vaccinated individuals our top priority.
  • Continue to adhere to high scientific and ethical standards regarding the conduct of clinical trials and the rigor of manufacturing processes.
  • Only submit for approval or emergency use authorization after demonstrating safety and efficacy through a Phase 3 clinical study that is designed and conducted to meet requirements of expert regulatory authorities such as FDA.
  • Work to ensure a sufficient supply and range of vaccine options, including those suitable for global access.

We believe this pledge will help ensure public confidence in the rigorous scientific and regulatory process by which COVID-19 vaccines are evaluated and may ultimately be approved. 

How many other vaccine developers will join this pledge remains to be seen.

Sunday, September 6, 2020

Revived And Restored

Its mission to "to enhance biodiversity through the genetic rescue of endangered and extinct species", Revive & Restore announced on September 6, 2020, that
The world’s first successfully cloned endangered Przewalski’s horse was born on August 6, 2020. Revive & Restore, San Diego Zoo Global (SDZG), and ViaGen Equine collaborated to clone from a cell line of a genetically important stallion that had been cryopreserved since 1980 at the SDZG Frozen Zoo. This groundbreaking achievement was conceived as a new strategy to help restore genetic diversity to the Przewalski’s horse species.
Here is a video of the foal clone:

Saturday, September 5, 2020

Caveat Editor

On September 3, 2020, the International Commission on the Clinical Use of Human Germline Genome Editing ("Commission") released its new report:  Heritable Human Genome Editing.  Here is a webinar from the Commission, explaining its findings and recommendations:

International Commission on the Clinical Use of Human Germline Genome Editing from The National Academies on Vimeo.

Friday, September 4, 2020

Russian Vaccine

On September 4, 2020, in The Lancet, Lagunov et al. published a peer reviewed study entitled "Safety and immunogenicity of an rAd26 and rAd5 vector-based heterologous prime-boost COVID-19 vaccine in two formulations: two open, non-randomised phase 1/2 studies from Russia".  The article concludes,

these data collectively show that the heterologous vaccine based on rAd26-S and rAd5-S is safe, well tolerated, and does not cause serious adverse events in healthy adult volunteers. The vaccine is highly immunogenic and induces strong humoral and cellular immune responses in 100% of healthy adult volunteers, with antibody titres in vaccinated participants higher than those in convalescent plasma.

Though these results are based on limited sample sizes, Bloomberg greeted the news positively, with the headline "Russia’s Covid Vaccine Shows Potential in Peer Review, Lancet Reports".

Monday, August 31, 2020

The Nature Of The Firm

The journal Ecological Economics has published an article entitled "“Environment-selected directors”: An interactive simulation experiment of environmental representation on corporate boards" written by my colleagues and me. Here is the abstract:
In many legal frameworks, corporate directors are selected by shareholders.  Proposed legislature in the US seeks to enable employee representation on corporate boards as well.  Nevertheless, current approaches to corporate board selection could result in the systematic discounting of the needs of other, unrepresented stakeholder groups beyond shareholders and employees.  To investigate this issue, we envisioned a new kind of corporate director—the environment-selected director—to complement shareholder-selected and employee-selected directors.  We conducted an online simulation experiment where human participants were assigned to act as corporate directors, with some being told they were selected by shareholders, some by employees, and some via a “vote by a committee of scientists who study the local and global environment in question”.  Results found that participants assigned as environment-selected directors exhibited balanced preferences across stakeholder groups, behavior significantly different from both shareholder-selected directors and employee-selected directors.  Further results from 3000 “virtual boards of directors” suggest that boards composed solely of environment-selected directors produce more balanced benefits across all three stakeholder groups studied (shareholders, employees, and the environment) than other configurations of boards.  These results suggest that it may be useful for future legislation to consider including this novel form of director, the environment-selected director, on corporate boards.

Huge credit is due Professor Bill M. Tomlinson (University of California Irvine), who spearheaded this research project.  The full article is available for free here. 

Wednesday, August 26, 2020

The Boston Wheeze Party

In an August 25, 2020, preprint article by Lemieux et al. posted on Medrxiv, entitled "Phylogenetic analysis of SARS-CoV-2 in the Boston area highlights the role of recurrent importation and superspreading events", a collaborative group of scientists from the Broad Institute and other institutions analyzed 772 complete SARS-CoV-2 genome sequences to trace the early spread of SARS-CoV-2 in Boston, including possibly at a fateful conference attended by participants from around the worldAmong their findings, the authors
present here an analysis of SARS-CoV-2 genomic epidemiology primarily in the Boston area, which was severely affected early in the US COVID-19 epidemic. Through dense sampling of the early phase of the epidemic we show the frequency of importation events—over 80 independent introductions—and the impact of early superspreading events in driving amplification and community transmission, likely accelerating the transition from containment to mitigation strategies.
This study provides direct evidence that superspreading events may profoundly alter the course of an epidemic and implies that prevention, detection, and mitigation of such events should be a priority for public health efforts.
Rapid sequencing of full genomes and powerful phylogenetic inference methods are proving themselves vital in our emerging understanding of the Covid-19 pandemic. 

Tuesday, August 25, 2020

From Kendall To Kure

 Today I watched a wonderful documentary, entitled From Controversy to Cure: Inside the Cambridge Biotech Boom, about the birth and growth of the biotechnology hotspot that has emerged in Kendall Square, Cambridge, Massachusetts.  Here is the film:

FROM CONTROVERSY TO CURE - Inside the Cambridge Biotech Boom from MVP on Vimeo.

Wednesday, August 19, 2020

The Mantis Who Fell To Earth

This big beast fell from the sky right in front of me.  Given its size - about 10 cm - my guess is that it is an introduced Chinese Mantis (Tenodera sinensis).

Wednesday, August 12, 2020

Ô Kamala!

La candidate à la vice-présidence des États-Unis, Kamala Harris, a obtenu son diplôme de l'école secondaire Westmount à Montréal en 1981.  Elle est presque aussi canadienne que Ted Cruz. Le Canada est-il devenu une école de finition pour la présidence américaine?  Merveilleux!

Monday, August 10, 2020

Leafing Lizards

Since 2005, a population of lizards has kept me company as I read on my front porch.  They pop out of and dive back into cracks between bricks of my front pathway.  While outside their burrows, they forage frenetically through leaf litter.  Yesterday, I spotted the largest individual I had ever seen.  I managed to take some closeup photographs of this big dark brown and black lizard, one of which is reproduced below. 

Broad-Headed Skink (Plestiodon laticeps)

I formerly identified these lizards as Common Five-Lined Skinks (Plestiodon fasciatus), in part because the smaller ones have five cream-colored stripes on their backs and sides, and sometimes have bright blue tails.  However, close scrutiny of my new photographs has changed my mind.  Now I think my lizards are Broad-Headed Skinks (Plestiodon laticeps), which can sport stripes and tails similar to those of their close relative, the Common Five-Lined Skink, but tend to be considerably larger, and have five scales on their upper lips between their noses and eyes.  The main challenge in identifying these lizards has been their constant activity, vigilance, and impressive speed.  No lounge lizards they.

Thursday, July 16, 2020

Dr. Fauci Speaks

Dr. Anthony S. Fauci is Director of the National Institute of Allergy and Infectious Diseases ("NIAID").  This role has made him a medical science and policy leader in the struggle against SARS-CoV-2, as well as an undeserving lightning rod his opponents have struck repeatedly.  On July 15, 2020, The Atlantic published a revealing interview with Dr. Fauci.  It's well worth reading.

Wednesday, July 15, 2020

Legal Information Wants To Be Free

The amazing David L. Schwartz (Northwestern Law School) has coauthored a clarion call in the journal Science to make legal information freely available to all, allowing rigorous analysis and informed correction of the law.  As the authors point out,
In the United States, a range of technical and financial obstacles blocks large-scale access to public court records—all but foreclosing their use to direct policy. Yet a growing body of empirical legal research demonstrates that systematic analyses of court records could improve legal practice and the administration of justice. And although much of the legal community resists quantitative approaches to law, we believe that even the skeptics will be receptive to quantitative feedback—so long as it is straightforward, apolitical, and incontrovertible.
If implemented successfully, this proposal would allow data-driven legal decisions and legal reform.  Not everyone may be happy about this development, though its benefits are likely to be substantial.  In fact, as the authors suggest, “although much of the legal community resists quantitative approaches to law, we believe that even the skeptics will be receptive to quantitative feedback—so long as it is straightforward, apolitical, and incontrovertible.”  As Sherlock Holmes warns in A Scandal In Bohemia, “It is a capital mistake to theorize before one has data.”

Wednesday, July 8, 2020

Articles Of Trade

On July 8, 2020, Mexican President Andrés Manuel López Obrador visited United States President Donald J. Trump at the White House to mark the new United States-Canada-Mexico Agreement ("USMCA")(Accord Canada–États-Unis–Mexique (ACEUM)/Canada-United States-Mexico Agreement ("CUSMA") in Canada, and Tratado entre México, Estados Unidos y Canadá (T-MEC) in Mexico), which came into the force on July 1, 2020Canadian Prime Minister Justin Trudeau was conspicuous by his absence.  The full text of the USMCA is available here.  The 89 articles (plus additional annexes) concerning intellectual property, in USMCA Chapter 20, including new rules for geographical indications, are here, replacing the mere 21 intellectual property articles (plus annexes) found in Chapter 17 of the North American Free Trade Agreement ("NAFTA").  Whether or not USMCA members trade more articles, these countries now have more trade articles.

Tuesday, July 7, 2020

Murine Insufficiency

On June 24, 2020, the United Kingdom Supreme Court ("UK Supremes") gave judgment in Regeneron Pharmaceuticals Inc (Respondent) v. Kymab Ltd (Appellant), a case concerning European Patent (UK) No. 1 360 287 (the "'287 patent") and its divisional, European Patent (UK) No 2 264 163.  Claim 1 of the '287 patent (upon whose sufficiency all three claims at issue in this appeal depended) is as follows:
A transgenic mouse that produces hybrid antibodies containing human variable regions and mouse constant regions, wherein said mouse comprises an in situ replacement of mouse VDJ regions with human VDJ regions at a murine chromosomal immunoglobulin heavy chain locus and an in situ replacement of mouse VJ regions with human VJ regions at a murine chromosomal immunoglobulin light chain locus.
Here is the question as framed by the UK Supremes:
whether a product patent, the teaching of which enables the skilled person only to make some, but not all, of the types of product within the scope of the claim, passes the sufficiency test where the invention would contribute to the utility of all the products in the range, if and when they could be made.
A majority of the UK Supremes held that claim 1 lacked sufficiency, explaining
it is settled law, in relation to a product claim, that sufficiency requires substantially the whole of the range of products within the scope of the claim to be enabled to be made by means of the disclosure in the patent, and this both reflects and applies the principle that the contribution to the art is to be measured by the products which can thereby be made as at the priority date, not by the contribution which the invention may make to the value and utility of products, the ability to make which, if at all, lies in the future.
The UK Supremes found the three patent claims at issue in this case as poor in sufficiency as a transgenic church mouse.

Thank you to PatentlyO for bringing this decision to my attention.

Monday, July 6, 2020

O Say Can He Play!

For the 2020 Fourth of July holiday, Japanese Consul General in New York, Kanji Yamanouchi, offered this wonderful Jimi Hendrix-inspired tribute to his host country, the United States of America:  Consul General Yamanouchi can really shred his Fender Stratocaster.  As Wayne and Garth would surely say, "We are not worthy!"

Thursday, June 25, 2020

In Memoriam Rose Paterson

I was greatly saddened this morning to learn that Rose Paterson had passed away.  I had the pleasure of meeting her three years ago while we and our families were both visiting her brother in Northumberland.  She was a lovely and talented person, who, among her accomplishments, once crossed Mongolia on horseback.  As she lived near Ellesmere, Shropshire, here is her obituary in the Shropshire Star.  My sympathy to her family.

Tuesday, June 23, 2020

Digital Evolution

Cloutier et al. (Nature, March 18, 2020) recently described a fossil fish (pardon the paraphyly), named Elpistostege watsoni, whose skeletal remains suggest the emergence of digits:
Here we report a 1.57-metre-long articulated specimen of Elpistostege watsoni from the Upper Devonian period of Canada, which represents—to our knowledge—the most complete elpistostegalian yet found. High-energy computed tomography reveals that the skeleton of the pectoral fin has four proximodistal rows of radials (two of which include branched carpals) as well as two distal rows that are organized as digits and putative digits.
Never has there been a better reason to work fingers to the bone.

Monday, June 22, 2020

Et Tu, Okmok?

A June 22, 2020, article in the journal Proceedings of the National Academy of Sciences, entitled Extreme climate after massive eruption of Alaska’s Okmok volcano in 43 BCE and effects on the late Roman Republic and Ptolemaic Kingdom, suggests that the eruption of political unrest following the assassination of Julius Caesar in 44 B.C. may have been followed by climate unrest unleashed by a massive Alaskan volcano:
The assassination of Julius Caesar in 44 BCE triggered a power struggle that ultimately ended the Roman Republic and, eventually, the Ptolemaic Kingdom, leading to the rise of the Roman Empire. Climate proxies and written documents indicate that this struggle occurred during a period of unusually inclement weather, famine, and disease in the Mediterranean region; historians have previously speculated that a large volcanic eruption of unknown origin was the most likely cause. Here we show using well-dated volcanic fallout records in six Arctic ice cores that one of the largest volcanic eruptions of the past 2,500 [years] occurred in early 43 BCE, with distinct geochemistry of tephra deposited during the event identifying the Okmok volcano in Alaska as the source.
This study, by McConnell et al., suggests that the Roman Republic may have been left quite literally on the ash heap of history.

Saturday, June 20, 2020

Thinking Outside The Box

I discovered this beautiful little chelonian today, which made my day.
Ornate Box Turtle (Terrapene ornata ornata (Agassiz, 1857))

Wednesday, June 17, 2020

Shell Shock

Nature magazine reports that palaeontologists may have cracked the egg-laying behavior of several prehistoric amniotes.  Rather than hard, at least some terrestrial dinosaur eggs may have been soft-shelled, while it now appears possible that some prehistoric marine "reptiles" (pardon the paraphyly) laid their eggs on land.  Such paradigm shifts foul the nests of prior hypotheses.

Monday, June 15, 2020

Two Wings Fly Together

The United States Supreme Court ("Supremes") released a remarkable decision on June 15, 2020, concerning equality before the law.  In the case of Bostock v. Clayton County, Georgia, a robust majority of six justices, including all four justices generally regarded as leaning leftward alongside two justices usually regarded as learning rightward (that is, Chief Justice John Glover Roberts and Associate Justice Neil McGill Gorsuch), agreed on a decision written by Justice Gorsuch.  Here is the essence of their decision:
Sometimes small gestures can have unexpected consequences.  Major initiatives practically guarantee them.  In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964.  There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.  Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.  An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.  Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.  But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.
Given its bipartisan nature and decisive mathematics, this decision has now settled a fundamental issue of equal rights for the foreseeable future.  Justices Alito, Thomas, and Kavanaugh dissented from the majority decision.

Sunday, June 14, 2020

Friday, June 12, 2020

Reflection Inflection Point

The environment blog YaleEnvironment360 recently published a thoughtful and timely essay, entitled When Social Distancing Ends, Will We Rethink the World We Want?, by Bill McKibben.  With reference to the current SARS-CoV-2 pandemic, McKibben notes that
We are on the closest thing ever to a worldwide meditation retreat, with billions finding time to think about their lives.
We having examined our lives and society, McKibben considers what we might decide to make of our future.

Thursday, June 11, 2020

SARS-CoV-2 Pathogenicity

The Proceedings of the National Academy of Sciences ("PNAS") published an article entitled "Genomic determinants of pathogenicity in SARS-CoV-2 and other human coronaviruses", by Ayal B. Gussow et al., on June 10, 2020.  The article explores
crucial genomic features that are unique to SARS-CoV-2 and two other deadly coronaviruses, SARS-CoV and MERS-CoV [and that] correlate with the high fatality rate of these coronaviruses...
This short article is well worth reading.

Wednesday, June 10, 2020

Tyrannosaurus Lex

On May 20, 2020, in Murray v. BEJ Minerals, the Supreme Court of Montana ("Montana Supremes") granted custody of a Tyrannosaurus rex and bits of a Triceratops.  The legal issue, as framed by the United States Court of Appeals for the 9th Circuit, is
Whether, under Montana law, dinosaur fossils constitute “minerals” for the purpose of a mineral reservation?
The Montana Supremes held as follows:
We conclude that, under Montana law, dinosaur fossils do not constitute “minerals” for the purpose of a mineral reservation.  The ordinary and natural meaning of “mineral”—as it is used in the context of a general mineral reservation and mineral transactions—involves resources such as hard compounds, oil, or gas, mined as a raw material, to be used for further processing, refinement, and economic exploitation.  Although a material’s mineral content may render the material rare and valuable, and therefore within the ordinary and natural meaning of “mineral,” dinosaur fossils are not considered rare and valuable because of their mineral properties; rather, fossils are valuable because of characteristics other than mineral composition.  Finally, dinosaur fossils’ relation to the surface, and the effect their removal has on the value of the surface estate, is the final factor in determining dinosaur fossils to be outside the ordinary and natural meaning of “mineral,” as that term was used in the [current and prior land owners'] mineral deed.  We decline to stretch the term “mineral” so far outside its ordinary meaning as to include dinosaur fossils.
In her vigorous dissent, Justice Ingrid Gustafson pointed out that "The dinosaur fossils here...have a 100% mineral composition."  However, in Montana at least, this legal theory about such wondrous fossils has now gone the way of the dinosaurs.

Monday, June 8, 2020

Technology King Arthur

The last book I was able to sign out from Dewey Library before MIT shut down in March 2020 was THE NATURE of TECHNOLOGY - What It Is and How it Evolves, by W. Brian Arthur.  I love it.  I do not agree with everything in his theory of the structure and evolution of technology, but I do find his schemata useful and share his admiration of Charles Darwin's contributions to evolutionary theory.  Here is a lecture he gave on the origins and evolution of technology.

Saturday, June 6, 2020

Awesome Aussie Murids

I have a soft spot in my heart for Australasian murids.  I like them so much I did my Ph.D. on their genetics and evolution.  So, when I came across this article in Australian Geographic, entitled "Here are 7 clever Aussie native rodents", I had to share it.

Monday, June 1, 2020

Masters Of Artificial Intelligence

Harvard Business School professors Karim Lakhani and Marco Iansiti recently published a marvelous new book entitled Competing in the Age of AI - Strategy and Leadership When Algorithms and Networks Run the World.  This is the best account I have ever read of the seismic effects artificial intelligence will surely have, and, in some cases, has already had, on business, the economy, management, and public policy.  I thoroughly recommend it.

Sunday, May 31, 2020

Take Off, Bob And Doug!

Like millions of people around the world, I watched the successful launch of Dragon Endeavour on May 30, 2020. Today, May 31, 2020, I was thrilled to see Dragon Endeavour safely dock to International Space Station ("ISS"), and astronauts Bob (Behnken) and Doug (Hurley) - neither of whom called the other a "hoser" even once during their spaceflight - float into ISS to join colleagues Chris Cassidy, Anatoly Ivanishin, and Ivan Vagner. Wonderful!  It's a beauty way to go.

Saturday, May 30, 2020

Diamond In The Rough

Professor Jared Diamond (University of California Los Angeles) is a rare example of an academic whose expertise spans disparate fields of inquiry.  In his career, he has made important contributions in physiology, ecology, and geography.  Outside academia, Diamond has also been a influential writer of best-selling books intended for general audiences.  His most recent book was prescient, being published in 2019, just before the SARS-Cov-2 pandemic and worldwide economic collapse:  Upheaval - Turning Points for Nations in Crisis.  Also well worth reading is his commentary,  Jared Diamond: lessons from a pandemic - The coronavirus crisis should usher in an age of global co-operation, argues the Pulitzer Prize-winning geographer, published in the Financial Times on May 27, 2020.

Sunday, May 24, 2020

First Impressions Of The Last Dance

I just finished watching The Last Dance.  The biggest thing I learned is that, focused as I was on graduate school, I largely missed what happened in the 1990s NBA.  So, although the documentary revisits the Chicago Bulls' famous twin three-peats, I realized I was watching them for the first time.  Despite the involvement of Michael Jordan's company, Jump 23, in the production of the The Last Dance, the reality of the basketball footage alone convinced me that Jordan was every bit the superlative player of his legend.

Yes, I already knew he was good, but watching him bend the outcomes of games and series to his will, against a succession of superb teams and players, was a revelation.  Six NBA championships brought tremendous joy to Chicago Bulls players, staffs, and fans.  Yet, the documentary depicted enough conflict, hectoring, and cruelty to temper these accomplishments with a unavoidable sense of tristesse.

The Last Dance is excellent.  Nevertheless, it is valuable that the future is sure to add additional perspectives on a fabulous chapter in basketball history.

Friday, May 22, 2020


The United States Food and Drug Adminstration ("FDA") has listed almost 30 SARS-CoV-2 antibody-detection products as unapproved for sale.  This reflects the challenges of developing, and obtaining licensure for, such diagnostic tests.  The crowd of products ordered off the market also illustrates how great the market opportunity for such tests is perceived to be.

Thursday, May 21, 2020

Hope Takes Flight

Warranted or not, this week saw fragile hopes rise of a vaccine effective against SARS-CoV-2.  This reminded of Emily Dickinson's lovely enigmatic poem Hope:
Hope is the thing with feathers
That perches in the soul,
And sings the tune without the words,
And never stops at all,
And sweetest in the gale is heard;
And sore must be the storm
That could abash the little bird
That kept so many warm.
I’ve heard it in the chillest land,
And on the strangest sea;
​Yet, never, in extremity,
It asked a crumb of me.

Sunday, May 17, 2020

Friday, May 15, 2020

Tough Luck

The United States Supreme Court ("Supremes") unanimously decided LUCKY BRAND DUNGAREES, INC., ET AL. v. MARCEL FASHIONS GROUP, INC. on May 14, 2020.  Although the underlying dispute concerned a clash of  clothing trademarks including "Get Lucky" and "Lucky Brand", a central issue in the case concerned a legal theory called "defense preclusion".  Here the Supremes rejected defense preclusion.

Writing for the court, Justice Sotomayor provides this short summary of the posture of the case:
This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties.  This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not— Lucky Brand was not barred from raising its defense in the later action. 
She concludes as follows:
At bottom, Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action.  Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses. The judgment of the Second Circuit is therefore reversed, and the case is remanded for proceedings consistent with this opinion. 
Regardless of which company got lucky in this round, endless expensive litigation over a trademark covering a common English word seems anything but lucky for either firm.

Thursday, May 14, 2020

Rational Optimist On Covid-19

Here is a Spectator interview with the incomparable Dr. Matt Ridley on understanding and taming SARS-CoV-2 and Covid-19:

Tuesday, May 12, 2020

Dedication-Disclosure Slayback

On May 8, 2020, the United States Court of Appeals for the Federal Circuit ("CAFC") decided Eagle Pharmaceuticals v. Slayback Pharma.  Slayback - a moniker that clearly represents a missed naming opportunity in the field of heavy metal bands - evokes exactly what happened to Eagle Pharmaceuticals, whose four asserted patents the CAFC found not to have been infringed on the pleadings.  Representative claim 1 of its United States Patent No. 9,572,796 ("'796 patent") recites, among other elements, "a pharmaceutically acceptable fluid comprising a mixture of polyethylene glycol and propylene glycol".

Eagle Pharmaceuticals invoked the doctrine of equivalents "assert[ing] that the ethanol in Slayback [Pharma]’s product is insubstantially different from the propylene glycol ("PG") in the claimed composition."  In response, Slayback Pharma "argued that the disclosure-dedication doctrine barred Eagle [Pharma]’s claim of infringement under the doctrine of equivalents because the asserted patents disclose, but do not claim, ethanol as an alternative solvent to PG. The '796 patent also disclosed "ethanol"".

The CAFC affirmed the decision of the United States District Court for the District of Delaware, finding as follows:
Here, we conclude that the only reasonable inference that can be made from the patent disclosures is that a skilled artisan would understand the patents to disclose ethanol as an alternative to the claimed PG.  Nothing in the record permits us to infer that a skilled artisan “would have understood that the patent specification describes distinct categories of formulations that contain different ingredients and work in different ways.” Appellant Br. 44.  As a result, even when viewing the pleadings in the light most favorable to Eagle, we conclude there is no material issue of fact to resolve and Slayback is entitled to judgment in its favor as a matter of law.
Both the district and appeals courts decided Eagle Pharma's arguments flew in the face of the dedication-disclosure doctrine.

Thursday, May 7, 2020

Patent League Table

Here is an animation published by the World Intellectual Property Organization illustrating which countries filed the most PCT ("Patent Cooperation Treaty") applications from 2005 to 2019.  Notice the rise of Chinese and Korean PCTs.

Wednesday, May 6, 2020

Virology Now!

The Global Virome Project ("GVP") describes its mission as follows:
Develop an innovative network partnership among public, private, philanthropic and civil organizations to detect the majority of our planet’s unknown viral threats to human health and food security within 10-years to prepare for and stop future epidemics
The GVP elaborates its goals in this video:

Tuesday, May 5, 2020


Here is a valuable advance in SARS-CoV-2 detection from the Broad Institute:

Friday, May 1, 2020


In an exceptional May Day decision, the United States Food and Drug Administration ("FDA") issued an Emergency Use Authorization ("EUA") "for emergency use of remdesivir for the treatment of
hospitalized 2019 coronavirus disease (COVID-19) patients".  The EUA describes remdesivir as
a direct acting antiviral drug that inhibits viral RNA synthesis.  It is an investigational drug and is not currently approved for any indication.  Remdesivir has activity in cell culture and animal models against SARS-CoV, MERS-CoV, and SARS-CoV-2. 
It then outlines the scientific evidence undergirding its decision:
Based on review of the topline data from the randomized, double-blinded, placebo-controlled trial conducted by NIAID (NCT04280705) and from the Gilead-sponsored open-label trial that evaluated different durations of remdesivir (NCT04292899), it is reasonable to believe that the known and potential benefits of RDV outweigh the known and potential risks of the drug for the treatment of patients hospitalized with severe COVID-19.
Finally, the EUA explains the statutory basis for authorizing use of remdesivir: 
Having concluded that the criteria for issuance of this authorization under 564(c) of the Act are met, I am authorizing the emergency use of remdesivir for treatment of COVID-19, as described in the Scope of Authorization section of this letter (Section II) and subject to the terms of this authorization.  
There is no guarantee that further data regarding the performance of remdesivir will be similarly positive.  However, the EUA does indicate that the FDA has high hopes for this drug in combating SARS-CoV-2 and the Covid-19 disease it causes.

Wednesday, April 29, 2020

Balm Of Gilead

Today PBS Newshour ran the following detailed story about the latest results concerning a remdesivir clinical trial, with the most relevant portion of the video from 7:32 to 14:44. Although there is tremendous research and development needed to confront the SARS-CoV-2 pandemic, these clinical results are welcome.

Monday, April 27, 2020

The Night The Copyrights Went Out In Georgia

In a decision released April 27, 2020, the United States Supreme Court ("Supremes") decided against the State of Georgia, which had asserted its copyright in "statutory text and accompanying annotations".  Public.Resource.Org ("PRO") "is a nonprofit organization that aims to facilitate public access to governmental records and legal materials."  When it posted on the web a digital version of the "Official Code of Georgia Annotated" ("OCGA") without permission from a Georgia agency named the Code Revision Commission ("Commission"), the Commission sued PRO for allegedly infringing its copyright in the OCGA.

the annotations in Georgia’s Official Code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals.  A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author. Under the government edicts doctrine, judges—and, we now confirm, legislators—may not be considered the “authors” of the works they produce in the course of their official duties as judges and legislators.  That rule applies regardless of whether a given material carries the force of law.  And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties.
After Georgia v. Public.Resource.Org, Inc., anyone considering copying government works of authorship will certainly have Georgia on their mind.

Saturday, April 25, 2020

Inhabiting Technology

This weekend, I began reading W. Brian Arthur's book, The Nature of Technology:  What It Is and How It Evolves.  This has been on my reading list for ages.  Here is a quotation from page 10 that caught my attention:
Most of us do not stop to ponder technology.  It is something we find useful but that fades to the background of our world.  Yet - and this is another source of wonder for me - this thing that fades to the background of our world also creates that world.  It creates the realm our lives inhabit.
So far, I cannot put this book down.

Wednesday, April 22, 2020