Call Me Ishmael No Longer

The International Convention for the Regulation of Whaling ("ICRW") was intended to promote, not discourage, whaling.  Countries engaged in commercial whaling, concerned about precipitous declines of many whale populations negotiated, and, on December 2, 1946, signed, the ICRW to ensure the "proper conservation of whale stocks and thus make possible the orderly development of the whaling industry."  The governing body established under the ICRW, the International Whaling Commission ("IWC"), determines which species and populations of whales may be hunted, if at all, mandates where and when such hunting may or may not take place, and monitors the health of whale stocks.

Due largely to conservation measures implemented by the IWC, many whale stocks had begun to recover by the 1980s.  However, public attitudes towards whales had changed radically since the inception of the ICRW.  The discovery of complex Humpback Whale songs - first intercepted in Bermuda by a listening post for Russian submarines, and first studied by biologists Roger Payne and Scott McVay - transformed lethargic sources of ambergris, blubber, and ivory into hauntingly articulate, socially complex, and seemingly intelligent peers.  Conservation groups and even prominent bands, such as Yes and The Grateful Dead, promoted cetacean conservation.  As the Dead sang, in "Save the Whales," 

Lots of whales in the deep blue sea, we kill them for the companies.Drag 'em alongside and chop 'em in two, melt them down and sail it to you.

In 1986, anti-whaling sentiment prompted the IWC to declare a commercial moratorium on whaling.  The IWC expanded its protection of whales in 1994, when it created the huge Southern Whale Sanctuary.

Since then, a small hard-core of pro-whaling nations - Iceland, Norway, and Japan - have fought unsuccessfully to overturn the moratorium, and, despite growing widespread opposition to whaling among their own citizens, have resumed harpooning whales.  Since the moratorium came into effect, Japan has justified its annual whale hunt as "scientific permit whaling."  Its extensive whaling fleet has harpooned and killed thousands of whales, increasingly in the Southern oceans.

Sea Shepherd, an environmental group dedicated to ending whaling, has followed the whaling fleets for years, and interfered with its hunt, with increasingly effective results.  The profile of Sea Shepherd and its Canadian founder, Paul Watson, have risen to unprecedented heights with the airing of the Animal Planet television series, Whale Wars.  This week, their efforts prevailed:  the Japanese whaling fleet conceded defeat, for this season at least, and headed home.  As the Japanese newspaper, Yomiuri Shimbun, reported on February 20, 2011,

With this season's research whaling in the Antarctic Ocean called off due to harassment by the Sea Shepherd Conservation Society, Japan's whaling activities in the area may not see another year.  In addition to Sea Shepherd's acts of sabotage, low domestic demand for whale meat--which used to be a valuable source of protein during the food-scarce postwar years--also has made the prospect of continuing whaling extremely gloomy, officials said...[A Fisheries] ministry official said, "With the suspension of research whaling, there is no possibility of whaling continuing from next season as it has in the past."

While not yet saved, the whales may now be a lot safer.

Eight-Track Tape, Meet Three-Track Patent

A lot can happen in five years.  One could write a great novel - or two.  One could run around the world.  One could complete an MD degree, and begin saving lives.  One could get pregnant, have a baby, watch that baby learn to crawl, walk, talk, and read, and begin kindergarten.  Or, one could apply for, and receive a final determination about, a patent.  Enter the new "Three-Track" patent system being proposed by the United States Patent and Trademark Office ("USPTO").

Gary Locke, U.S. Secretary of Commerce, has described the Three-Track system as a strategy for shifting the speed of patent prosecution for higher quality patents from lentissimo to allegro:

“The Patent and Trademark Office plays a key role in promoting innovation and entrepreneurship,” Locke said. “This new system will bring the most valuable patents, as determined by inventors, to market faster and will help shrink the backlog by catering to the business needs of America’s innovators.”

The USPTO placed a notice of its prioritized "Track I" proposal in the Federal Register on February 4, 2011, describing this new fast track to patenting as follows:

Under Track I prioritized examination, an application would be accorded special status and placed on the examiner’s special docket throughout its entire course of prosecution before the examiner until a final disposition is reached in the application. The aggregate goal for handling applications under Track I prioritized examination would be to provide a final disposition within twelve months of prioritized status being granted.

The main elements of Track I would be (1) a very expensive examination fee of $4,800 (that is, almost five times more expensive than the filing, search, and examination fees currently paid by large entities (companies with more 500 employees), and almost ten times what small entities (with 500 or fewer employees) currently pay), (2) strict limits of 4 independent claims and 30 dependent claims per application, and (3) mandatory filing of patent applications using the USPTO's electronic filing system ("EFS-Web").

Track III would allow patent applicants request that docketing of an application be delayed, allowing the application to hibernate from prosecution for up to 30 months (corresponding to the Patent Cooperation Treaty ("PCT") deadline for taking a patent application national).  Unless a patent applicant specifically affirmatively opted for Track I or Track III, that applicant would be placed by default on Track II, the current patent prosecution pathway.

The USPTO has proposed that the Track I pathway would be limited to 10,000 patent applications during its first year, and the USPTO would hire "additional examiners above the number of planned hires...so that the non-prioritized applications would not be delayed due to resources being diverted to process the prioritized applications."  This may be somewhat optimistic given the U.S. Congress' penchant for diverting fees collected by the USPTO to other governmental purposes, and 10,000 expedited patent applications, yielding almost $50,000,000 in the first year of the program alone, would present an extremely tempting target in this dawning age of federal austerity.

USDA Decides GM-Alfalfa Is No Little Rascal

Alfalfa (Medicago sativa) is one of the most important crop plants in the world. Its uses range from cattle forage to human food. Worldwide, it is cultivated more than any other legume crop. Monsanto Corporation developed a patented genetically modified ("GM") variety of alfalfa - Roundup Ready Alfalfa - that is resistant to glyphosate (N-(phosphonomethyl) glycine), a powerful herbicide used to eliminate weeds from agricultural fields.

As discussed earlier at LEXVIVO, Roundup Ready Alfalfa has inspired considerable legal controversy - controversy that has already reached the U.S. Supreme Court. On January 27, 2011, the United States Department of Agriculture ("USDA"), after completing an Environmental Impact Statement, announced in a press release that it has opted for full deregulation of Roundup Ready Alfalfa.  This decision will place no more restrictions on Monsanto's GM-alfalfa than on non-GM varieties.  As the USDA's press release relates,

"After conducting a thorough and transparent examination of alfalfa through a multi-alternative environmental impact statement (EIS) and several public comment opportunities, APHIS has determined that Roundup Ready alfalfa is as safe as traditionally bred alfalfa," Agriculture Secretary Tom Vilsack said.

This decision comes on the heels of a January 19, 2011, letter that U.S. Representative Frank Lucas (R-Okla.) and U.S. Senators Saxby Chambliss (R-Ga.) and Pat Roberts (R-Kansas) sent to USDA Secretary Tom Vilsack, warning that taking into account non-scientific factors in the regulation of GM-alfalfa would exceed the statutory authority granted to his agency by the Plant Protection Act:

It is unfortunate that those critical of the technology have decided to litigate and as you rightly point out that courts may unwisely interfere in normal commerce. However, the alternative you propose and include in the EIS is equally disturbing since it politicizes the regulatory process and goes beyond your statutory authority and indeed Congress’ intent in the Plant Protection Act (PPA). The PPA requires the Secretary to make a scientific determination if the product under review is a plant pest (7 U.S.C. 7711(c)(3)). If the final decision is that the product is not a plant pest, nor would the movement of the product in question impose the risk of dissemination of a plant pest, then USDA has no authority to impose further restrictions (7 U.S.C. 7712(a)).

Further legal challenges of GM-alfalfa are certain, especially from organic farmers who worry that GM-pollen will infect the their non-GM crops.  As a signal that it takes the growing war between advocates of agricultural biotechnology and organic farming seriously, USDA has decided to resurrect its Advisory Committee on Biotechnology and 21st Century Agriculture and the National Genetic Resources Advisory Committee to

tackle a broad range of issues, from ensuring the availability of high quality seed, to helping ensure that growers have access to the best tools available to support their production choices, to whether risk management and indemnification options can play a role.

Victory in this battle goes to agricultural biotechnology, but the wider war will assuredly continue.  In the meantime, the Food and Agriculture Organization of the United Nations ("FAO") has reported that food prices reached near-record heights in 2010.

Innovation As An Innovation

On January 25, 2011, U.S. President Barack Obama delivered a State of the Union Address packed with references to innovation.  In fact, he mentioned "innovation" no fewer than nine times during his speech.  In each of his 2010 and 2009 Addresses, President Obama mentioned innovation only twice.  During his entire eight years as U.S. President, George W. Bush mentioned innovation quite sparingly in State of the Union Addresses:  twice each in 2006 and 2003.  Even technophile President William J. Clinton employed the word only four times in his two terms in office.  So, why is innovation suddenly so popular with President Obama?

There are a number of possible explanations for why innovation has caught the presidential, and national, Zeitgeist.  One reason is that technological innovation is closely associated with economic growth.  From Robert Solow's neoclassical growth model, which estimated that about four fifths of productivity gains stem from new technology, to Paul Romer's suggestion that investments in research and development may be particularly effective means of encouraging technological improvements, much modern economic thought recommends the promotion of innovation as an especially wise policy goal.

Another motivation is the fashionable fear that the United States is at risk from being overtaken by China, whose students (along with students from South Korea, Finland, Canada, and quite a few other countries) recently outperformed their American colleagues in science, mathematics, and other subjects in the Organisation for Economic Cooperation and Development's Programme for International Student Assessment ("PISA").  The sensation caused several weeks ago by Amy Chua's publication of Battle Hymn of the Tiger Mother, in which she critiques the results of what she pejoratively terms "Western" parenting, tapped this Angst and found a gusher.

A third explanation may arise from a dawning realization that classical models of innovation may not be succeeding as well as they once did.  Witness the National Institutes of Health's new National Center for Advancing Translational Sciences ("NCATS"), whose euphemistic goal, "to leverage science to bring new ideas and materials to the attention of industry by demonstrating their value," is a reaction to the worrying relative decline in the rate of discovery, development, and market-availability of new pharmaceutical drugs, coupled with a looming "patent cliff" off which many existing medicines are beginning to tumble.

Finally, the fruits of innovation, such as the iPad, the Nissan Leaf, and Roundup Ready alfalfa, are usually viewed as cool, compelling, and a welcome distraction from the distressing realities of slow economic growth and high unemployment.  Where the Romans had panem et circenses, one can now enjoy the latest update of Angry Birds.

Biodiversity Law In Paradise - Day Six

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 19, 2011:

Today, we got up early to drop our fearless leader and professor off at the airport.  We immediately left the airport to make our way to the beach beside the University of the Virgin Islands ("UVI") MacLean Marine Science Center docks.  We are grateful that the local United States Virgin Islands laws require that the public be given access to all beaches on the islands.  After visiting UVI multiple times this past week as a transit point, it was great to be able to go to the beautiful beach there and do some snorkeling close to the shore.

Formal lectures and field activities having finished, we lounged around the beach as we waited for the sun to rise over the palm trees to illuminate the water for clear-visibility snorkeling. While on the beach, we watched a Brown Booby (Sula leucogaster) dive repeatedly from the air into the water to catch fish.  Also, we saw a Puerto Rican Anole (Anolis pulchellus), a lizard that falls into the grass/bush morphotype.  Two other anole lizards, the Puerto Rican Crested Anole (Anolis cristatellus), a trunk/ground morphotype, and the Barred Anole (Anolis stratulus), a crown/trunk morphotype, are native to the Virgin Islands, and we saw these as well.  Part of our reading assignments were about the anole lizards of the Virgin Islands, and we used these organisms in legal hypos throughout the week of the fieldtrip.  We tried to catch these lizards all week to examine them up close, but without success.  Finally, the Anolis pulchellus that we found near the beach’s tree line took pity on us, and decided to jump on an arm. 

Once the sun was shining over the bay, we went snorkeling. We saw schools of Ballyhoo (Hemiramphus brasiliensis) fish almost immediately.  The bay, which is called Brewer's Bay, itself was largely sandy-bottomed, and had almost no coral.  However, plenty of small fish were nibbling at the few pieces of coral that are present.  One fish appeared to be territorial, aggressively protecting its part of the coral from all other fish who swam too close.  As we swan out towards the moored boats, we saw some Green Sea Turtles (Chelonia mydas), a turtle federally-listed as endangered under the federal Endangered Species Act, enjoying morning swims.  One particular turtle alarmed us by lunging towards us.  It became very clear that Green Sea Turtles are much more agile in the water then we were.  Luckily, the turtle decided we represented no threat, and subsequently left us alone.  Surprising, we also saw a Southern Stingray (Dasyatis americana), our first of the fieldtrip.  We found it amazing how each snorkeling trip this week revealed new species.  It is precisely this richness and variety of biodiversity, along with the many legal issues that confront and surround it, that makes the Virgin Islands such an ideal place to study biodiversity law.

Unfortunately, all good things must come to an end.  Our trip has officially ended, but we will carry with us all the knowledge we gathered in our unique ‘classroom’ this week.

That brings to an end the daily dispatches from the 2011 Biodiversity Law class.  See you again this time next year for the 2012 class of Biodiversity Law.

Biodiversity Law In Paradise - Day Five

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 18, 2011:

 

Today, Ron, an experienced sea captain, and the owner of our hotel, took us on his speedboat to the U.S. Virgin Island of Saint John.  St. John is unique in the Caribbean in consisting mainly of national park.  Made possible by land donated by Laurance Rockefeller, Virgin Islands National Park covers most of St. John, and has allowed the island to maintain more of its natural character and native biodiversity than any other Caribbean island.  Unlike the largely unsuccessful laissez-faire approach to conservation that characterizes St. Thomas and St. Croix, the National Park Service provides strong federal enforcement of national biodiversity law on St. John.  For example, where St. Thomas hosts hillsides dotted with structures and cleared vegetation, the only structures visible on the North side of St. John, aside from a few privately-owned enclaves yet to be acquired by the National Park, are abandoned colonial sugar mills and the ecotourism tents of Maho Bay.  The habitats on St. John vary from mature seasonally-moist rainforest to dry sclerophyll forest, surrounded by an unspoiled shoreline of rocky cliffs and gorgeous white sand beaches, with spectacular coral reefs just offshore.

We moored the boat at Leinster Bay, and snorkeled around Waterlemon Cay.  The snorkeling here differed markedly from our previous snorkling sites South of St. Thomas.  Here, the fish tended to be much bigger and more plentiful, and we were able more easily to identify more species.  In addition, we saw many large fish hiding in crevices in the coral.  Much of the coral surrounding Waterlemon Cay was soft and flexible, allowing it to bend and ‘wave’ in the strong water currents and larger waves.  We observed more endangered Staghorn Coral (Acropora cervicornis) and Elkhorn Coral (Acropora palmata), though not in the same abundance as at Flat Key.  One more fascinating characteristic of Waterlemon Cay was the abundance of tiny translucent Sea Walnuts (Mnemiopsis leidy), which, fortunately, tend not to sting.

After snorkeling, we returned to our al fresco classroom, where we discussed our favorite creatures (especially legal issues involved in their conservation), and then calculated the species richness, evenness, and diversity of the three St. Thomas locations (Botany Bay, Crown Mountain, and Magen's Bay) at which we carried out leaf surveys. The largest species richness and biodiversity was at Crown Mountain (the highest point in St. Thomas), followed by Magen's Bay (halfway down the mountain), and then Botany Bay  (near the beach). Crown Mountain is a moist rainforest area, whereas Magen's Bay and Botany Bay (in that order) are generally drier. Additionally, results revealed that Botany Bay had less species richness and biodiversity. Again, this was not very surprising because the area is near water and very sandy.  In terms of species richness, diversity, and evenness, the Magen's Bay area is intermediate to the other two sites in richness, evenness, and diversity.  Our calculations confirmed our expectation that the Virgin Islands host prodigious quantities of biodiversity, but that the local patterns of biodiversity vary immensely.

Stay tuned for more daily dispatches.

Biodiversity Law In Paradise - Day Four

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 17, 2011:

Today, we drove down to Estate Botany Bay in the far westend of Saint Thomas.  There, we visited the lowlands area surrounding the former Corning family beach house, Mermaid’s Chair, and The Nature Conservancy ("TNC") property called Little Saint Thomas, which is situated where the Caribbean Sea meets the Atlantic Ocean (and creates the best surfing in the Virgin Islands).  We learned how TNC pioneered the use of conservation easements to conserve parcels of land without having to pay the total cost of purchasing land fee simple. A conservation easement prevents activities on a parcel of land that might endanger biodiversity. Unlike their usual legal strategy of obtaining conservation easements from property owners, TNC actually does own Little Saint Thomas fee simple, having been given the land by the Corning family as a gift. Per USVI law, public access to the beach and ocean is required so that the public can use and enjoy the land.  However, those wishing to enjoy these access rights must walk (not drive) the 3 kilometers down to the beach, and then walk back up.  Fortunately, we were guests of private owners of Botany Bay, so we were allowed to explore the entire 160 hectare property and its spectacular tropical biodiversity.

One of the most interesting features of Little Saint Thomas was the abundance of rocks that allow for the formation of transient tide pools. These tide pools serve as an area where small, often juvenile, fish can live protected from larger predator fish.  Also, we saw an abundance of Soldier Crabs (Coenobita clypeatus) making their way inland, and uphill, to mate and lay eggs, a behavior they share, at least in part, with sea turtles.  Unfortunately, roads cut into the sides of the steep hills of Estate Botany Bay can create vertical barriers impossible to pass, thus thwarting their uphill reproductive trek.

After leaving Estate Botany Bay, we drove up to Crown Mountain, which is the highest point in the USVI, and home to a dense biodiverse moist rainforest, and then down to the trailhead of another TNC property above Magen’s Bay. At both of these sites, and at Botany Bay, we systematically collected fallen leaves as part of an experiment to estimate forest diversity. We then took bags of our leaves back to our hotel, where we carefully categorized and tallied the different types of leaves we collected at each of the three experimental sites.  Tomorrow, we will use a variety of statistical formulae to estimate forest tree richness, diversity, and evenness across these sites, and will then attempt to understand any differences we find.

Stay tuned for more daily dispatches.

Biodiversity Law In Paradise - Day Three

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 16, 2011:

Today, Dr. Richard Nemeth, a specialist in ecology and management of tropical fisheries and coral reefs, and the Director of the Maclean Marine Science Center at the University of the Virgin Islands, took us out on his sailboat. He took us for a sail around a few of the small islands surrounding the southern side of St. Thomas.  After serving as his crew to sail out to Flat Cay, a small, uninhibited island, and federally-protected bird sanctuary, we moored to a fixed buoy, thus avoiding the need to drop anchor onto the spectacular, yet fragile, coral reef below.  We saw a bewildering diversity of fish, echinoderms, crustaceans, coral, and sponges.  Dr. Nemeth graciously and expertly pointed out a number of interesting species.  For instance, he pointed out a school of Blue-Headed Wrasse, and explained that their unusual closely-synchronized swimming pattern was part of a mating ritual, in which as many as twenty male fish attempted to follow a single female fish to fertilize the eggs she occasionally released into the water.  Although comical to watch, this mating aggregation behavior is crucial to producing the next generation of this species on the coral reef.  Dr. Nemeth also drew our attention to endangered Fused Staghorn Coral (Acropora prolifera), a rare species of coral that results from the hybridization of endangered Elkhorn Coral (Acropora palmata) and Staghorn Coral (Acropora cervicornis).  In addition, he showed us a coral nursery set up by The Nature Conservancy intended to produce individuals of these three coral species that can be used to establish new populations where they have previously been wiped out. We were also very excited to see, and swim with, two Green Sea Turtles (Chelonia mydas), an inspiring sight because these turtles are currently making a comeback in the waters surrounding the Virgin Islands.

After sailing back to the docks at the Maclean Marine Science Center, Dr. Nemeth showed us a captured Red Lionfish (Pterois voltans).  Red Lionfish are an increasingly problematic invasive species in the Virgin Islands, and throughout the Caribbean, and anyone spotting one of these fish in the wild is strongly encouraged to report their sighting to the fish and wildlife authorities. Native to the Indian and Pacific Oceans, the Red Lionfish has rapidly spread throughout the Caribbean Sea after Hurricane Andrew smashed a Miami aquarium, spilling six individual Red Lionfish into the Atlantic Ocean who subsequently spawned the entire invasive plague.  Since the Red Lionfish has no natural predators outside its natural range, and each individual is capable of consuming vast numbers of coral reef fish, its spread is currently devastating native fish biodiversity in the Caribbean region.  Though beautiful, this fish symbolizes the current lack of effective legal responses to the threat of invasive species.

Stay tuned for more daily dispatches.

Biodiversity Law In Paradise - Day Two

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 15, 2011:

Today we had the amazing opportunity to visit with the USVI’s most distinguished attorney, Jeff Weiss.  Jeff Weiss is a jack of all trades.  He handles issues varying from complex class action litigations, such as the recovery of insurance money from a hurricane that devastated the island of St. Thomas over a decade ago, and also advocates zealously for the protection of endangered species, such as the endangered Atlantic Hawksbill Sea Turtle (Eretmochelys imbricata) and Virgin Island Tree Boa (Epicrates monensis granti).  Jeff explained the intricacies of practicing law in a U.S. territory that is a biodiversity hotspot.  The most interesting aspect of our conversation was the balancing of interests between the Virgin Island Tree Boa and the Hawksbill Sea Turtle and the people who lost their homes because of Hurricane Marilyn.   Jeff ardently fought for the protection of endangered species whose habitat would have been destroyed through habitat destruction by relying on the Endangered Species Act. And he won!

Stay tuned for more daily dispatches.

Biodiversity Law In Paradise - Day One

Every year, the students in Biodiversity Law travel with Professor Andrew W. Torrance to the Virgin Islands (U.S. and British) for an intensive week-long fieldtrip.  This is their dispatch from January 14, 2011:

Professor Torrance informed us that we would partake in a traditional Saint Thomas Friday night activity;  we went bat catching.  We trekked along the beautiful shoreline of Magen's Bay before having the honor of meeting Saint Thomas' foremost advocate for terrestrial ecosystem preservation, Dr. Renata Platenberg.  She and two assistants, her devoted husband and a University of the Virgin Islands graduate student, mount mistnets in the forest once a month at dusk.  Various specimens of the island's five native species of bats occasionally find themselves tangled in the nets, perhaps a bit confused that their sonar failed them.  Promptly, the researchers delicately remove the tiny mammals (unfortunately, the process is delicate only for the bats-- a bat bite and some mild cursing was in progress when we arrived) and place them in pillow cases for weighing, measuring, and then safe release.  While the idea of petting a bat was both exciting and off-putting, the consensus among the class was that explaining a bat bite scar would be rather impressive, thus worth the risk.  We introduced ourselves to the little lady in the photo, who was soft as velvet and surprisingly cute.  Renata and her crew then examined the bats, recorded data, and returned them to their homes among the palm tree silhouettes.  The promise of Friday night island excitement panned out beautifully as we found a friend in Molossus molossus.  And we got a taste of the first step in determining whether a species might be threatened:  someone has to venture into the trenches, observe species first hand, and establish the scientific baseline that triggers the protective provisions of the Endangered Species Act.

Stay tuned for more daily dispatches.