Bringing The Heat

The National Climatic Data Center of the National Oceanic and Atmospheric Administration ("NOAA") published its "2012 State of the Climate" report on January 8, 2013.  To summarize:  "2012 was the warmest and second most extreme year on record for the continuous U.S.."  This included the warmest spring and the fourth warmest winter on record.  The mean temperature for 2012 was a full 1.0 degree Fahrenheit higher than the previous record holder, 1998.  In addition, 2012 was the 15th driest and second most extreme (e.g., Hurricanes Sandy and Isaac) ever measured.  It was clearly kismet that the Miami Heat would win the NBA championship.

Demography Is Bankruptcy

In their January 5, 2013, article, "Social Security:  It's Worse Than You Think," in the Sunday New York Times, Gary King and Samir Soneji predict, among other things, that Social Security will run out of money in 2031, three years prior to the federal government's estimate.  Furthermore, King and Soneji point out how inaccurate many of the financial models relied upon by the Social Security Administration really are.  Here, and in more depth in their article, "Statistical Security for Social Security," published in the August 2012 issue of the journal Demography, the authors raise numerous alarms about how wobbly the mathematics are that undergird the future financial well-being of millions of Americans.  If demography is destiny, the mathematics of Social Security suggests that the Baby Boomers may become the Skint Seniors.

Mark Lynas Recants On GM Agriculture

Some things never change.  However, many things do.  Sometimes, even the strongest of opinions can reverse direction.  Consider opposition to genetically-modified ("GM") crops and livestock.  Mark Lynas has long been one of the most eloquent and prominent opponents of GM agriculture.  In fact, he was a primary architect of widespread anti-GM public opinion in Europe.  On January 3, 2012, during an address at the 2013 Oxford Farming Conference, Lynas recounted how he achieved this:

When I first heard about Monsanto’s GM soya I knew exactly what I thought. Here was a big American corporation with a nasty track record, putting something new and experimental into our food without telling us. Mixing genes between species seemed to be about as unnatural as you can get – here was humankind acquiring too much technological power; something was bound to go horribly wrong. These genes would spread like some kind of living pollution. It was the stuff of nightmares.

These fears spread like wildfire, and within a few years GM was essentially banned in Europe, and our worries were exported by NGOs like Greenpeace and Friends of the Earth to Africa, India and the rest of Asia, where GM is still banned today. This was the most successful campaign I have ever been involved with.

 Remarkably, Lynas then apologized for this very success, and publicly embraced GM agriculture, in the process portraying vilifying anti-GM environmentalists:

For the record, here and upfront, I apologise for having spent several years ripping up GM crops. I am also sorry that I helped to start the anti-GM movement back in the mid 1990s, and that I thereby assisted in demonising an important technological option which can be used to benefit the environment...

This was also explicitly an anti-science movement. We employed a lot of imagery about scientists in their labs cackling demonically as they tinkered with the very building blocks of life. Hence the Frankenstein food tag – this absolutely was about deep-seated fears of scientific powers being used secretly for unnatural ends. What we didn’t realise at the time was that the real Frankenstein’s monster was not GM technology, but our reaction against it.

Lynas is now treading a path of conversion blazed before him by the "Skeptical Environmentalist," Bjorn Lomborg, a man whose face Lynas once festooned with a cream pie.  Like Lomborg, Lynas will surely be demonized by many of his previous comrades as an apostate guilty of ideological treason.

I have long been fascinated by attitudes towards GM agriculture.  In "Intellectual Property as the Third Dimension of GMO Regulation" (available free here), I analyzed the ironic tension between opposition to GM agriculture and opposition to patents claiming GM crops and livestock.  More recently, in "Planted Obsolescence:  Synagriculture and the Law" (available free here), I suggested that "synagriculture" (that is, agriculture based on a framework of open synthetic biology) is likely to transform agriculture by democratizing access to powerful biotechnological methods and materials capable of engineering miraculous new varieties of agricultural organisms and techniques.

As opponents and proponents battle for the soul of agricultural progress, and GM agriculture continues its worldwide march towards technological dominance, food and other products from farming remain as important as ever.  As Milton had Eve exhort in Book IX of Paradise Lost, "Adam, well may we labour, still to dress/ This garden, still to tend plant, herb, and flower."

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!