Smiert Programmy Spionem!

Buried in the hyperbole surrounding the fiscal cliff, on December 28, 2012, President Barack Obama signed into law the Trade Secrets Clarification Act of 2012.  The "TSCA" amended 18 U.S.C. §1832(a) (part of the Economic Espionage Act ("EEA")) in response to a federal appeals court decision in U.S. v. Aleynikov (2nd Cir. 2012), reversing a jury verdict that had found Sergey Aleynikov, a software programmer at Goldman Sachs, guilty of stealing source code from his employer.  Had the Second Circuit Court of Appeals not overturned the lower court decision, which had found Aleynikov guilty of violating both the National Stolen Property Act ("NSPA") and the EEA, the coder could have spent more than eight years in federal prison.  Instead, the appeals court ruled that software code is not equivalent to physical property susceptible of theft under the NSPA, nor was the specific code taken my Aleynikov "included in a product that is produced for or placed in" interstate or international commerce.  The TSCA is an attempt to remove the latter loophole by changing "included in a product that is produced for or placed in" into "a product or service used in or intended for use in".  Software spies beware!

From Fiscal Cliff To Asset Ascent

Farewell to a metaphor megameme:  the fiscal cliff.  Even though the U.S. economy did fall ever so briefly into this monetary moat, the subsequent lucre launch carried stock markets to record heights.  Expect the fiscal cliff meme to decline precipitously.

The 2012 Lexvivo Top Ten

A torrent of stories about genes, demes, and memes carved deep channels into 2012.  Selecting only ten to feature has been challenging.  However, choices must be made.  Here is the Lexvivo top ten for 2012:

(1)  Thar Sandy Blows! - Hurricane Sandy was a natural disaster for North America, born of stochasticity, climate change, and foolhardy policies (see (5)).

(2)  Myriad Answers - In AMA v. Myriad, he United States Supreme Court will decide the following question:  "Are human genes patentable?"

(3)  As Hot As...Earth! - Droughts, fires, and melting Arctic and Antarctic icecaps all accompanied the warmest year since the advent of accurate global temperature measurements.

(4)  Prometheus Fired - In Mayo v. Prometheus, the U.S. Supreme Court limited the patentability of inventions related to diagnosing and treating human beings

(5)  Thar Bopha Blows! - Typhoon Bopha was a natural disaster for Asia, born of stochasticity, climate change, and foolhardy policies (see (1)).

(6)  The Reign of Pterois - The Red Lionfish (P. volitans) continued its spread throughout the coral reefs of the Caribbean, devastating native reef fish and the ecosystems to which they are intrinsic.

(7)  Are Patents A Hill Of Beans? - In Bowman v. Monsanto, he U.S. Supreme Court will decide whether or not the sale of seeds exhausts patent rights in inventions capable of self-replication, such as soybean plants Monsanto genetically-modified to be glyphosate-resistant.

(8)  Tighter Genes - The U.S. Presidential Commission for the Study of Bioethical Issues issued a report that warned of, and offered recommendations to minimize, the great risks to privacy that accompany whole-genome sequencing.

(9)  Cultural Bridge of Psy's - K-Pop star, Psy, conquered YouTube with his music video and rampant meme, Gangnam Style, showing that even hegemonic American culture can be emulated, improved, and exported back to the United States.

(10)  Chimp Change - The U.S. National Institutes of Health allowed 110 chimpanzees (Pan troglodytes) used in medical research to "retire," sending a strong signal that such uses of chimpanzees and other animals may be fundamentally reevaluated.

Naturally, 2013 promises to be another great year in genes, demes, and memes, so stay tuned to Lexvivo.

Farish Alston Jenkins, Jr. (1940-2012)

My doctoral advisor, Farish A. Jenkins, Jr., passed away on November 11, 2012.  Farish did many great things in this life.  He was an artillery captain in the U.S. Marine Corps, the finest teacher that Harvard University has ever known, one of the foremost biologists and palaeontologists in the world, and an exemplary gentleman in the very best and Victorian sense of that term.  Whatever his students needed, he generously provided.  Braving polar bears and arctic blasts, Farish made sure that the holy grail of evolutionary biology, the elusive missing link, Tiktaalik roseae, would be missing no longer.  When his beloved Harvard was threatened by a tyrant, Farish took up rhetorical arms, and, echoing Cato the Elder, destroyed a menace every bit as dangerous as Carthage.  Farish poured greatness into every step he took.

Farish was my hero and my friend.  During my first two years at Harvard, I studied insects.  Whenever Farish saw me, he would fire "Come see me when you're ready to study vertebrates."  He knew my mind better than I did myself.  Inevitably, I accepted his invitation.  He became my advisor.  On my behalf, he took arms against a sea of troubles, and, by opposing, ended them.  My four years as his doctoral student were a joyful time and the best part of my education.  I will always treasure my graduation day in 1998 because Farish spent it with my family and me in the courtyard of Eliot House.  After eating lunch with us, and sharing reminiscences with my grandfather, a former tail-gunner in the Royal Canadian Air Force, Farish presided at my hooding ceremony, conferring on me the doctorate I owe to him.  A decade later, he graciously allowed my six-year old daughter to interview him for a school project she decided to do on Tiktaalik.  Farish treated her with the gentlest of dignity, delighted in the fact both she and his own daughter share virtue names, and gave her an enduring memory of a singular scholar she cherishes still.

Farish is an example I will always strive to follow, a true gentleman I will always remember, and a friend I will always miss.  Vale, Farish!

Beauty Fades

In a recent article, entitled Beauty Fades:  An Experimental Study of Federal Court Design Patent Aesthetics (available for free download on SSRN), I presented experimental evidence that aesthetic factors have declined in importance as criteria used by courts to judge design patent validity.  The leading patent blog, Dennis Crouch's Patently-O, invited me to write a guest post highlighting these findings, and the post, Moving Away from Beauty as a Factor in Design Patent Validity, is now available at Patently-O.  Here is the abstract of my article:

Courts are rarely asked to judge beauty. Such a subjective practice would normally be anathema to the ideal of objective legal standards. However, one area of federal law has a long tradition of explicitly requiring courts to make aesthetic decisions: the law of design. New designs may be protected as design patents, but only if they are “ornamental” in nature. As the U.S. Supreme Court has noted, “a design must present an aesthetically pleasing appearance. . . .” This study uses empirical and experimental approaches to test the hypothesis that courts tend to favor more attractive patented designs over less attractive ones. It relies upon a data set that includes all design patent decisions from 1982 until 2010 in which a court made a final determination of validity or infringement, with every design patent at issue therein classified as valid or invalid and infringed or not infringed. In a controlled experiment, human subjects rated the attractiveness of all designs at issue in all of these court decisions. The results show that, although the average attractiveness of patented designs has been stable over the past three decades, the average attractiveness of those designs found invalid has risen markedly. Where courts once appeared to impose a penalty on unattractive designs, they now seem not to discriminate between attractive and unattractive designs in terms of validity. This shift in empirical court outcomes matches a doctrinal shift away from aesthetic considerations by the Court of Appeals for the Federal Circuit, as a result of which the “ ‘ornamental’ requirement of the design statute means that the design must not be governed solely by function. . . .” Thus, both legal doctrine and empirical data reflect a decline in the importance of aesthetic considerations in design patent decisions by federal courts over the last three decades.

Despite Dr. Oliver Wendell Holmes' contention that “Wisdom is the abstract of the past, but beauty is the promise of the future,” any promise beauty now holds for design patents may prove hollow.

Synthesizing Law For Synthetic Biology

Earlier this year, I was commissioned by the National Academies to write a report on synthetic biology, standards setting, and intellectual property, which I co-authored with Linda Kahl, and presented at the National Academies in Washington, D.C., on October 4, 2012, as part of the Symposium on Management of Intellectual Property in Standard-Setting Processes.  Our report, entitled Synthetic Biology Standards and Intellectual Property, as well as my presentation, are both freely available here.  On October 31, 2012, the University of Kansas released this press release describing my involvement with the National Academies in preparing and presenting our report.  Among the findings in our report was the following:

Patent rights that encumber components and methods have long been a concern among those in synthetic biology, especially as a perceived threat to the field’s prominent ethos of open biological innovation. Currently, there is little evidence that patent rights adversely affect synthetic biological research...In fact, the patent-eligibility of DNA molecules has been put in doubt by several conflicting U.S. court decisions...What is certain is that the synthetic biology community is unusually attuned to debates surrounding intellectual property and standards setting, and views its engagement in these debates as vital to ensure the continued success of synthetic biology. 

Anyone interested in learning more about synthetic biology, biotechnology, and intellectual property law is welcome to download free copies of the following articles:  (1) Synthesizing Law for Synthetic Biology, (2) Gene Concepts, Gene Talk, and Gene Patents, (3) DNA Copyright, and (4) Planted Obsolescence:  Synagriculture and the Law. 

Meme Supreme

LEXVIVO is about genes, demes, and memes.  Rarely has a meme risen as rapidly or attained such commanding heights of attention as Korean rapper Park Jae-Sang ("PSY")'s music video of Gangnam Style.  With help from his fellow Korean popstars Kim Hyun-A ("Hyuna"), Kang Daesung (Daesung), and Lee Seung-Hyun ("Seungri"), and comedians Yoo Jae-Suk and No Hungchul, PSY's magnum opus is at once original, mesmerizing, bewildering, catchy, and bizarre.  Gangnam Style is now ubiquitous, with even Saturday Night Live paying tribute.  How far will PSY's imaginary horse carry him.  Get Ye Up!

The Capitalist Tool On Synthetic Biology

Forbes published an article on August 29, 2012, warning the European Union ("EU") against excessive regulation of synthetic biology.  The article, entitled "Will Overregulation In Europe Stymie Synthetic Biology," cautions that

if the EU applies to synthetic biology its existing dysfunctional approach to genetic engineering, the former will join the latter in bypassing the continent and depriving its citizens of prodigious scientific, health and economic benefits.

The authors are Henry I. Miller, a fellow at the Stanford University Hoover Institute and the first Director of the Food and Drug Administration's Office of Biotechnology, and Drew Kershen, the Earl Sneed Centennial Professor at the University of Oklahoma College of Law and international authority on the law of genetically-modified agriculture.  The article cites my article "Planted Obsolescence:  Synagriculture and the Law," discussed earlier here on Lexvivo.

Diamond On Romney On Diamond

Mitt Romney, the presumptive 2012 Republican Party presidential candidate, recently invoked the scholarship of UCLA Professor Jared Diamond while visiting Israel.  On July 29, 2012, in a speech at a fundraiser in Jerusalem, he interpreted Diamond's book Guns, Germs and Steel as "basically say[ing that] the physical characteristics of the land account for the differences in the success of the people that live there."  Diamond, winner of Japan's Cosmos Prize, the National Science Medal, and the Pulitzer Prize, disagreed with this characterization of his work.  In an August 1, 2012, New York Times opinion-editorial entitled "Romney Hasn't Done His Homework," Professor Diamond pulled no punches, punctuating his critique of Romney's Weltanschauung with

Mitt Romney may become our next president.  Will he continue to espouse one-factor explanations for multicausal problems, and fail to understand history and the modern world?  If so, he will preside over a declining nation squandering its advantages of location and history.

One suspects that Romney may not win Diamond's vote come November.

Moxy Frivolous In Spain

Spain is suffering from record unemployment.  A real estate boom has gone to bust.  Its banking sector is near collapse, and will have to be bailed out by the European Union.  With his country in such dire straits, one might expect a wise monarch both to express sympathy with the travails of his subjects and to avoid conspicuous Gatsbian excesses.

King Juan Carlos decided on a different strategy.  He went hunting for elephants in Botswana, and was photographed posing, holding a rifle, in front of his dead pachyderm quarry.  Big game hunting in Africa has long been a pastime of European nobility, so what was the problem?  Well, not only does the extravagance of African trophy hunting juxtapose sourly with the current economic malaise in his own kingdom, but the Spanish king also happens to be the president of the World Wildlife Fund ("WWF") in Spain.  The Spanish WWF was not amused, and summarily deposed Juan Carlos from his position as its leader, explaining

Although this type of hunting is legal and regulated, it has been deemed incompatible by many members with the honorary presidency of an international organisation that defends wildlife and the environment like WWF.

Such behavior may not be the best strategy to endear the monarchy to the people of Spain.  For Juan Carlos, it would be no surprise if "Uneasy lies the head that wears a crown."  Perhaps Moxy Früvous was being prophetic when they sang,

Once I was the King of Spain (now I eat humble pie)

A palatial palace, that was my home (now I eat humble pie)

I'm telling you I was the King of Spain (now I eat humble pie)

And now I vacuum the turf at SkyDome (once he was the King of Spain)

Elephants never forget.  Will Spain?