Electric bikes

 The latest trend in our suburbs is the young males (about 12-17) riding electric bikes. Now males 18-35 are the worst and most deadly drivers on the road. I had one total my car a few years back sending my grandchildren to the ED. In NJ unfortunately as a "NO Fault" state, short of vehicular homicide the Insurance company decides amongst themselves and the driver harmed is left empty handed while the at fault driver get a free pass to just go at it again.

But at least cars have licensed drivers with insurance in a registered vehicle, almost always. But the bicycles do 25+ mph and are silent, electric not gas. So they come up behind a pedestrian and zip through sidewalk crowds. The Police seem grossly clueless. After-all they are minors, so until someone is killed, or worse a group slaughtered, nothing will be done. 

There is no Constitutional Amendment that enables reckless pre-teens and teens  to mow down pedestrians. 

I first saw this in DC a decade ago, but now in the suburbs parents spend $1,000 on a deadly weapon and give it to their child. Wait till the Courts catch up with this one!  

Chevron Ends

 The Supreme Court finally did away with Chevron. The Court notes:

Rather than safeguarding reliance interests, Chevron affirmatively destroys them. Under Chevron, a  tatutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes, with “[u]nexplained inconsistency” being “at most . . . a reason for holding an interpretation to be . . . arbitrary and capricious.” Brand X, 545 U. S., at 981. But statutory ambiguity, as we have explained, is not a reliable indicator of actual delegation of discretionary authority to agencies.Chevron thus allows agencies to change course even when Congress has given them no power to do so. By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty. Chevron accordingly has undermined the very “rule of law” values that stare decisis exists to secure.

 To understand this issue consider a simple case of two parties entering to a contract. There comes a point when the parties disagree as to the meaning os a clause. It may have been poorly crafted by their attorney, usually the case. Normally the parties have agreed to either litigation in a certain court or arbitration under certain rules. 

However Chevron does not do this. Congress writes a law, and as is often the case it contains ambiguous or meaningless terms. Thus the parties, industry or individuals being one and the Executive being the other, would have gone to Court. A non involved third party. But Chevron said no, the Executive can decide whatever it means and the other party has to assent. There is no right to a third party remediation. Chevron created monsters in the Executive branch. Any un-elected bureaucrat can decide whatever they want and the citizens must agree of suffer.

This decision will have massive positive effects on industry. In my experience and in my opinion the US is the most regulated country I have ever operated in. Every action I took as a business was regulated down to the toilet tissues!  

Free Speech

 The Indispensible Right by Turley is an exceptionally well written and structured presentation of the position of the First Amendment right to free speech since the founding of the country. Although the Amendment states that free speech shall not be abridged, over the nearly 250 years of this country group after group, Administration after Administration have found ways and means to go around the right of free speech. The use of the less well defined assertion of sedition has been used to attack those not in power by those in power.

 My view of many of these issues is somewhat nuanced and reflects personal contact with those whose free speech was encumbered by Presidents. As Turley opens with Ms Whitney, an alleged communist in the early part of the twentieth century, it was my grandmother, Hattie Kruger, who was arrested by Wilson and thrown in the Occoquan prison with six other women for protesting outside the White House with suffragists. Imprisoned for sign holding outside the White House, by direct order of Wilson, the seven women were dragged to the prison, hosed down in frigid November weather, force fed by hose, and allowed no counsel. Occoquan was the Guantanamo of Wilson’s time. Women were the Al Qaeda of his period as well. But the crime of the women was just their right to free speech.

 Turley takes the reader from one act of free speech suppression to another over 250 years. From Adams, to Jefferson, to Jackson, Lincoln, yet somehow missing Wilson. On p 153 Turley seems to glorify Wilson as a defender of rage rhetoric. In my opinion and in my experience such could not be farther from the truth. Wilson made propaganda a key element of his Administration (see Bernays, Propaganda. Bernays was one of Wilson’s chief propagandists and his work made it to Madison Avenue for decades), he made it the driver for the entry into WW I. Wilson was a manipulative southerner and Turley’s reference to Wilson’s work on Constitutional Government was far from the interpretation of many. Wilson saw a Parliamentary system as a better one and he rejected many elements of the Constitution.

 Overall the book is easy to read for those not fully engaged in the topic for a period of time. It is an excellent overview of how free speech has been curtailed historically.

 The book begins with an attempt to address the question of what is a “right” and what is the basis for these rights. In this context there is the concept of natural rights, those rights that are assumed to have some universality. The origin of this rights is debatable, as from God, or as a fundamental part of the human psyche. The author examines many of these dimensions. Locke has been the alleged basis for property rights for example. Namely property rights result from the act of human work on unencumbered land for example. Then there is the concept that rights are a result of the human brains function. In my view it is a limbic system functionality. The classic example is a two year old and their toy. Try taking it away and the child screams “mine!”. Parents then attempt to mollify this limbic response to a right to property by saying the child should “share” and this does not always work. Natural Rights lead to Natural Law. In Ockham’s case he sees a distinction between God given Natural Rights and the rights mandated by law. Thus one can question that Freedom of Speech is either a Natural Right, a legal right, or both.

 The book proceeds through various examples of Freedom of Speech and the suppression of it by Government. In this context we use one assumes the legal right of Free Speech. The most compelling violation of Free Speech in my opinion is the Bebs case. The author focuses on weaknesses of the Court and especially Holmes in deciding this case. However Deb, a Socialist, was arguing against the War, WW I. The Congress had passed an Act prohibiting any speech against the War, a clear violation of the First Amendment. The Court in the Debs case blatantly followed the Congress and denied the Constitution. Silencing a political adversary via the law and the Court had become a common practice. Debs was subsequently pardoned. This is in contrast to the Goldman case, a foreign born national and communist, not a socialist. Goldman gets set back from whence she came because the communists fundamentally argued for an overthrow of the Government, not a Free Speech issue. The Debs decision really needs more depth. It is in my opinion a key landmark in a poor Court. The details behind Debs, its context, the Socialists etc need to be placed in context. For example, the counterpoint of Ema Goldman and the communists set an alter example. Goldman was not a natural born citizen, thus there was a place to return her to. Also the communists desired to truly overthrow the Government and replace it with communism. Socialists in extreme wanted public utilities so that water and sewers worked.

 Finally the author deals with the current Trump issues. Here things, in my opinion, get a bit muddy, mainly due to the timeliness of the case.  Did Trump incite to riot, or was it just free speech? Will the Court be Holmesian or extend the First Amendment accordingly? Is there a clear line between Free Speech and the limits thereto?

Kind of Fishy?

 The Chevron ruling of the Supreme Court has in my opinion over the decades been one of the worst. Simply stated, Chevron says if Congress passes a law and it is not well written then the Administrative agency responsible for its administration can interpret the law as it sees fit no matter what. In effect it establishes an independent Governmental body composed solely on bureaucrats whose person opinions control what happens.

The latest is the herring case where the Government Administrators demand that fishing vessels have monitors and that the vessel must pay the monitors salary. As Turley notes:

The cases today concern federal requirements that commercial fishermen pay for at-sea monitors. Herring fishermen in New Jersey and Rhode Island are challenging the law in a case with a long list of amicus filings on both sides from groups, politicians, and businesses. The fishermen say that the monitors could put them out of business, costing up to 20 percent of their annual revenues in a business that is already marginal for profits. They argue that the government wants monitors (which they do not necessarily oppose) but lacked the funds. The decision was made to shift the costs to the fishermen and then citing Chevron to curtail judicial review.

 Chevron was always a problem. Congress can be sloppy and then let the uncontrolled bureaucrats make the decisions and having the taxpayers pay the costs of these often politically divergent acts. Hopefully Chevron is overturned. In my opinion and my experience this is worse than Roe.

Rights, From Whence do they Cometh?

 Let us consider a simple tale about rights. It seems we have people claiming them galore these days. Our Bill of Rights is really quite limited but alas many more have been claimed beyond this document's lists.

Say some people want the wearing of hats as a right. Namely any person at any time in any place in the United States may if they so desire wear a hat. This is the right of hat wearing. Now how does this right, allegedly, become a real right? Well for one Congress can pass a law. Yet another Congress can invalidate that law. Can the President do anything? Not really under our Constitution, the President is there only to execute laws, not make them. What of the Supreme Court? Well it can adjudge this right as not part of the Constitution. But alas if it is a law, it still stands.

A second path is to have Congress make this an Amendment to the Constitution. It takes 3/4th of the States to agree but if it passes then the Supreme Court may interpret it. That is why it must be written with no ambiguity.

A third way is a state by state approach. Namely I have a right to hat wearing in New Jersey but not in New York. 

But what of conflicts.  Say a religion forbids hats in Church. The Constitution protects religious freedom so does that mean the Bill of Rights trumps the Hat wearing amendment!

Welcome to law!

The Constitution and the Right to Privacy

 In the famous 1890 paper by Warren and Brandeis, The Right to Privacy, the authors noted that there was no Constitutional right to privacy. They noted:

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life--the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible.

 They continue:

     It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.

     Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow men--the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque injuria. Injury of feelings may indeed be taken account of, in ascertaining the amount of damages when attending what is recognized as a legal injury; but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the "honor" of another

 The conclusion is that they try to find one in Common Law and Torts, not in the Constitution. Thus the issue of privacy has at best been accomplishe by law not by the Constitution. 

Words Mean Something, Sometimes

 Congress has the habit of passing laws often written by lobbyists, and then edited by staff, to meet the needs of campaign financiers. Welcome to politics. What all too often happens in the mix is that words are used which are at best ambiguous and at worst wrong.

Add to this the Chevron ruling by the Supreme Court. Simply it states that no matter how incomprehensible a law may be the Administrative agency may at its sole discretion decide what it means. Furthermore this same Agency may from time to time change the meaning, at will. This was the basis for the power of Administrative Law. Instead of sending it back to Congress for clarity, Chevron allowed un-elected Government employees to decide what they think it should be, the voters be damned.

Now take the recent ruling on masks. Congress mad a sloppy law. The CDC then took the sloppy law and used it to make Administrative policy despite the fact that they did so improperly. Two mistakes, but wait, the CDC relied on science, which in the case of masks really does not exist. Fundamentally we still do not really know how the virus is transmitted. Really. We really do not know but we have lots of academics with demos of how it could work. NOT

Now along comes the NY Times in its classic manner and states:

Should the federal government have the power to address broad public health emergencies?

Last week, a federal judge effectively answered no.

The judge, Kathryn Kimball Mizelle, who serves on a Federal District Court in Florida and was appointed by former President Donald Trump, issued a nationwide injunction blocking the government’s mask mandate for planes, trains, buses and other forms of public transportation. No matter how you feel now about masks, you should be alarmed by her decision. Judge Mizelle’s ruling could prevent the federal government from effectively and nimbly responding to future pandemics. And long after this pandemic has faded, her approach and rationale could undermine the federal government’s authority to confront other big problems, from occupational health and safety to climate change.

The necessary reference to Trump or Fox News immediately lets the reader know this is pure political palaver. The Judge has a very valid point. I argued this 30 years ago against several FCC rulings. The FCC took actions for which the law was at best vague. This problem occurs again and again. Thankfully this Judge deals with facts and reality and may prevent the hidden Government, namely Administrative Law, from prevailing.

New Jersey and Political Banners

 I think the NY Times has written an Editorial supporting free speech. In a piece support such free speech the Times notes:

Americans, especially judges, have an obligation to know the law. The limits of free speech are subject to debate, but Ms. Dick’s case does not approach those boundaries. She has the right to curse out the president of the United States, and it should not require an appeals court to deliver that news to Roselle Park. Discomfort with vulgarity is understandable. The word Ms. Dick used is one that this newspaper often avoids publishing. But the decision by a judge in a liberal town to constrain the free speech rights of an outspoken conservative is symptomatic of a troubling trend: a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech.

 The word in question is the simplification as an old Anglo Saxon directive allowing intimate relations winch was called, Fornication Under Consent of King. In fact is was one of the first English Crown directives written in what was then Middle English, supplanting some older French directives.

Now the local Magistrate deemed this obscene. Perhaps he did not look at the license plates on the cars in the parking lot. This is New Jersey. Here the word is used as a noun, adverb, adjective, gerund, participle, and is often interjected in between every other word. It is like the "uh" some political commentators use.

My introduction to such an expansive usage was as a Senior in High School when my father got me a job in the New York City Sanitation, to show me what real work was like. Up at 3 AM, to the garage by 5 AM, on the street by 5:15 AM and then listening to my co-workers use this phrase about everything. One got a sense that it helped the flow of New York and New Jersey dialects. Think of the Soprano folks.

In fact the current President was caught on a mic uttering it at a major Press Conference! 

Thus the Times has a good point but alas, watch out for those Magistrates. Better yet, Magistrates most likely interject the phrase themselves from time to time. After all, it is New Jersey!

Star Chamber

In the text by Hart, The Rule of Law (1603-1660) the author recounts the hated Star Chamber, a Court that the rulers used to avoid any of the rights of the subjects, not yet citizens, in England. As Hart notes:

In fact, the conciliar origins of these courts (as compared to those created by statute or confirmed by ancient custom or common law tradition) always made them suspect. That was certainly true of the court of Star Chamber, the other great central institution spawned by the Council’s general supervisory jurisdiction. Star Chamber had evolved in much the same fashion as Chancery, and to similar purpose - to relieve the Council of the need to deal with private complaints. What distinguished the Council’s work in Star Chamber (and later its jurisdiction as a formally constituted court) were allegations of criminal misconduct or violence. 

The Council understandably had always taken special interest in all breaches of ‘the King’s Peace’ and, under the leadership of Tudor chancellors, especially Thomas Wolsey, consciously expanded its purview to include a wide range of criminal offenses. These included allegations of public disorder - riot, rout, unlawful assembly - and, more particularly, crimes which compromised the integrity of the judicial system - forgery, perjury, maintenance, subornation of witnesses, bribery and so on. As Star Chamber’s jurisdiction was consciously expanded over the course of the sixteenth century, the Crown and its legal officers increasingly began to make use of the court, pursuing and prosecuting offenders on their own  nitiative, often on the basis of leads provided by government informers. 

As in the case of Chancery, the collective authority of Star Chamber’s officers, and the compelling demands of maintaining good order, argued in favor of allowing the court to exercise wide discretionary powers. Star Chamber was not required to observe any of the rules which governed common law criminal proceedings. Prosecutions could be initiated on the basis of simple information (rather than as a consequence of a formal grand jury indictment) and could be concluded on the basis of evidence taken by the court itself (without the need to resort to jury trial). Nor was the court constrained in terms of penalties. Apart from capital punishment - which the constitution insisted had to proceed from a common law trial by a jury of one’s peers - Star Chamber was free to inflict whatever punishments - corporal or financial - it deemed necessary or appropriate. In fact, Star Chamber offered advantages to all parties. 

Litigants were attracted, as they were to Chancery, by the relative ease and alacrity of the court’s process, and by the potentially intimidating authority of the court’s decree - essentially, given the near-duplication of personnel, a declaration, in all but name, of the King’s Council. Its decisions, in short, were beyond challenge or appeal. For that reason, Crown prosecutions in Star Chamber also served as a very powerful weapon of intimidation and deterrence, and inevitably the court became a convenient tribunal through which the Crown could pursue and punish those who stood out against its policies (not least because, in doing so, it could bypass the need for potentially uncooperative juries)

In fact, Stalin found this means to justice also quite useful. 

Magna Carta

Today marks the 800th anniversary of the signing of (the) Magna Carta. The Guardian reports on the current royal person in attendance.  They state:

The site is now a National Trust park, but Runnymede was originally chosen as the agreed venue because the boggy ground prevented either the king or his barons from bringing their armies for battle. This time, the sovereign arrived without military backup but to a new fanfare, specially composed by John Rutter and sung by Temple church choir, whose London base served in 1215 as the London HQ for the beleaguered king.Her Majesty was invited to unveil a plaque by the master of the rolls, Lord Dyson, who has in the past described Magna Carta as “a curious hotch potch”.

 The document is in a sense an establishment of the English Class system. The Barron's wanted their "rights", as best they were understood at the time, and also they all despised King John, a man easily so despised. This was in no way a document for the people and the very concept of a "right" had a few centuries to mature.

Notwithstanding, it is always good to celebrate a day when one person rule gets a comeuppance.

Getting into Trouble in Maryland

In an article in Tech Dirt they observe the following:

But his new argument takes it even further, arguing not just that they were unethical, but flat out illegal, based on his reading of the Common Rule and a particular Maryland law that effectively extends the Common Rule. The Common Rule basically says that if you're doing "research involving human subjects" with federal funds, you need "informed consent" and further approval from an institutional review board (IRB), which basically all research universities have in place, who have to approve all research. The idea is to avoid seriously harmful or dangerous experiments. The Maryland law takes the Common Rule and says it applies not just to federally funded research but "all research conducted in Maryland." 

Now this is in response to the  Facebook user test for what makes someone happy. Facebook allegedly manipulated what users saw based upon some criterion and then published the results.

Now if the above theory holds, then any market research, for example, in Maryland, without both an IRB and signed consent is criminal. Perhaps that is the case. Maryland is a strange place, I live there for a few years and it is an amalgam of many strange interests.

But if this is correct, then if I were to approach someone to ask their opinion, say at a party, and my day job was as a pollster then I may be committing a crime if I were in Maryland.

This is a classic example, if true, of the collection of laws that were half baked and that can be used to silence anyone.

In fact, one may consider the extreme, if for example you walk down the street and say, "How are you?", perhaps that could be considered research and without a written consent one is guilty of a crime. In many ways this is a classic example of Legislators and the Executive going a bit too far. Thank God for EZPass, I cannot be tempted to be friendly to any Maryland toll taker.

MIT Students and New Jersey Courts

Wired has an interesting piece on the New Jersey AG attempting to intimidate a set of MIT students for some software they developed in prototype form which the AG seems to believe on some yet to be defined basis as in violation of New Jersey law even thought the software has never been sold and resides in the Commonwealth of Massachusetts. The article states:


Four MIT students behind an award-winning Bitcoin mining tool will face off against New Jersey state authorities in court today when they attempt to fight back against a subpoena demanding their source code. The Electronic Frontier Foundation is representing 19-year-old MIT student Jeremy Rubin and three classmates in a remarkable case that stands out for the measure of aggression the state is using to obtain the code and identify anyone who might have tested the mining tool.

 Now perhaps this is one way to get some talent back to New Jersey but seems a bit heavy handed. The article continues:

“It’s a very broad subpoena that hints at criminal liability and civil liability,” he says. “For a bunch of college kids who put something together for a hackathon—they didn’t make any money, the project never got off the ground and now is completely disbanded—there are some very serious implications.”

 There is always the mens rea part of criminality which seems to be missing here as well as the act of doing something covered by and withing the State of New Jersey. Perhaps the Sopranos managed to survive because they did nothing with computers!

Interesting Naval Aircraft

The X47-B (above is USN photo) is an unmanned carrier launched aircraft. The Navy has deployed it for tests. As they state:

The X-47B Unmanned Combat Air System Demonstrator (UCAS-D) conducted flight operations aboard the aircraft carrier USS Theodore Roosevelt (CVN 71), Nov. 10. The event, the most-recent in a series of carrier-based tests, demonstrated the integration of the latest in naval aviation technology with the most advanced and capable carrier.

 It is interesting in that Carrier Groups present powerful deployment platforms but are also vulnerable to sophisticated attacks.

As USNI reports they will potentially operate jointly with manned aircraft.

During the two previous X-47B at-sea periods onboard USS George HW Bush (CVN-77) and USS Theodore Roosevelt (CVN-71) in 2013, while the unmanned demonstrator had a Boeing F/A-18 chase aircraft, the two types did not operate together on the carrier flight deck. This time around the manned F/A-18 and X-47B will operate from the carrier together cooperatively.

This means that the reliance upon fixed deployment platforms may be diminished.

The Myriad Decision and cDNA

The Supreme Court states:

They can also synthetically create exons-only strands of nucleotides known as composite DNA (cDNA). cDNA contains only the exons that occur in DNA, omitting the intervening introns.

As NCI states:

The next step is to convert the mRNA back into a DNA molecule in the test tube. This can be thought of simply as reversing what went on in the cell when the gene DNA was switched on and mRNA was made by base pairing. This is a two-stage process. First, each mRNA is copied into a new DNA strand using base pairing to form a mRNA-DNA duplex. Next, the mRNA is chopped up and removed, and the DNA strand is used to make a second DNA strand. This double-stranded DNA is called complementary DNA or cDNA. Thus, each cDNA in the test tube originally came from a specific mRNA in the cell.

But in the MIT cDNA course they call it complementary DNA, NOT "composite DNA (sic)" Even Wikipedia uses that term. It is amazing this is on page 1 they make this massive fundamental mistake. Any AP Biology High School student knows this. One wonders who crafted this document.Perhaps that is what is wrong with our Government.

Genes and Patents

The US Supreme Court has just ruled in the Myriad case. The Court holds:

A naturally occurring DNA segment is a product of nature andnot patent eligible merely because it has been isolated, but cDNA ispatent eligible because it is not naturally occurring. 

(a) The Patent Act permits patents to be issued to “[w]hoever invents or discovers any new and useful . . . composition of matter,” §101, but “laws of nature, natural phenomena, and abstract ideas”“ ‘are basic tools of scientific and technological work’ ” that lie beyond the domain of patent protection,The rule against patents on naturally occurring things has limits, however. Patent protection strikes a delicate balance between creating “incentives that lead to creation, invention, and discovery” and “impeding]the flow of information that might permit, indeed spur, invention.”  This standard is used to determine whether Myriad’s patents claim a “new and useful . . . composition of matter,” §101, or claim naturally occurring phenomena. 

(b) Myriad’s DNA claim falls within the law of nature exception.Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes. cDNA is not a “product of nature,” so it is patent eligible under§101. 

(c) cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. Its creation results in an exons-only molecule, which is not naturally occurring. Its order of the exons may be dictated by nature, but the lab technician unquestionably creates something new when introns are removed from a DNA sequence to make cDNA. 

(d) This case, it is important to note, does not involve method claims, patents on new applications of knowledge about the BRCA1 and BRCA2 genes, or the patentability of DNA in which the order of the naturally occurring nucleotides has been altered.

This is a game changing decision and is worth the reading.

Bowman v Monsanto

The US Supreme Court today decided Bowman v Monsanto in the benefit to Monsanto. It stated:

Held: Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.

(a) Under the patent exhaustion doctrine, “the initial authorized sale of a patented article terminates all patent rights to that item,” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617, 625, and confers on the purchaser, or any subsequent owner, “the right to use [or] sell” the thing as he sees fit, United States v. Univis Lens Co., 316 U. S. 241, 249–250. However, the doctrine restricts the patentee’s rights only as to the “particular article” sold, id., at 251; it leaves untouched the patentee’s ability to prevent a buyer from making new copies of the patented item. By planting and harvesting Monsanto’spatented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion. Were this otherwise, Monsanto’s patent would provide scant benefit. After Monsanto sold its first seed, other seed companies could produce the patented seed to compete with Monsanto, and farmers would need to buy seed only once. 

(b) Bowman argues that exhaustion should apply here because he is using seeds in the normal way farmers do, and thus allowing Monsanto to interfere with that use would create an impermissible exception to the exhaustion doctrine for patented seeds. But it is really Bowman who is asking for an exception to the well-settled rule that exhaustion does not extend to the right to make new copies of the patented item. If Bowman was granted that exception, patents on seeds would retain little value. Further, applying the normal rule will allow farmers to make effective use of patented seeds. Bowman, who purchased seeds intended for consumption, stands in a peculiarly poor position to argue that he cannot make effective use of his soybeans. Bowman conceded that he knew of no other farmer who planted soybeans bought from a grain elevator. In the more ordinary case, when a farmer purchases Roundup Ready seed from Monsanto or an affiliate, he will be able to plant it in accordance with Monsanto’s license to make one crop. 

The issue is simply that Monsanto developed a seed protecting itself against Roundup.  However when corn is made from the seed, it is made by cross fertilizing naturally with plants like itself and others. Nature does the mixing. Bowman took the F1 seed, namely the first cross, and planted it. He then treated it with Roundup killing off the plants without the gene protection and selecting the good genes. The Court then says by this ruling that you may genetically engineer something, and under the old interpretation you protected the something you engineered, via vegetative propagation. But now it protects against cross propagation by fertilizing. This is a dramatic extension of plant patents. The old law allowed you to patent a purple flower. You then propagated it by cuttings and it was still yours. However if you used it to cross with another flower the resulting plants were yours. Perhaps no longer!

Does that mean I need the Patent basis for every plant I use, and for how many generations. This decision creates a real mess. It is a shame out Judges have no knowledge of Biology.

Patents and Their Value

I have a mixed view of patents. On the one hand it creates the patina of value for ideas. On the other hand it is an invitation for endless litigation. I have avoided patents my entire life, I publish and let the document suffice, or I have donated my patents to MIT if they see so inclined.

I feel this was due to my time on patent cases. In one I just happened to keep my lecture notes from the 1960s and in them I described a certain general implementation which some company thirty years after the lecture made a claim to have invented. It was common knowledge in the 60s but somehow the PTO never caught on.

But in the process it costs many entities millions each. To no avail in the end.

The NY Times has a telling piece on patents worth the read. As the Tomes aptly states:

One option is judicial activism. This year, Judge Posner, in an Illinois federal court, tossed out patent arguments made by both Apple and Motorola Mobility in a 38-page opinion that dismissed a lawsuit between the two companies. Cleaning up the patent mess, Judge Posner said in an interview, might also require reducing the duration of patents on digital technologies, which can be as long as 20 years. “That would make a big difference,” he said. “After five years, these patents are mainly traps for the unwary.” 

Ideas have also come from policy experts and Silicon Valley. The Federal Reserve Bank of St. Louis recently published a working paper calling for the abolition of patents, saying they do more harm than good. 

Another idea is to create different classes of patents, so that some kinds of inventions, like pharmaceuticals, would receive 20 years of ironclad protection, while others, like software, would receive shorter and more flexible terms.

In my view the patent is a double edged sword, on the one hand it conveys ownership and on the other it stifles creativity. What the best solution is one can but guess, however the problem is real. Anyone who develops technology recognizes the quick sands that are afoot, one cannot review all prior art, it is too massive, and ultimately one may accidentally cross a line set up by the PTO. On the other hand there are the patent collectors who set out to sue no matter what. Clearly the system is near being broken. How to fix it is the question.

Keen Insight into the Obvious

The ACA decision has the quote (from Mankiw sans comment) regarding economists:

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.

Brilliant! And so true.....

Genes and Patents

This case is interesting and now very much worth following. The Washington Post states:

The Supreme Court on Monday threw out a lower court ruling allowing human genes to be patented, a topic of enormous interest to cancer researchers, patients and drug makers. The court overturned patents belonging to Myriad Genetics Inc. of Salt Lake City on two genes linked to increased risk of breast and ovarian cancer. ... The case is Association for Molecular Pathology v. Myriad Genetics, 11-725.

 It will be interesting to see if pathways will have similar standing since in many ways they are the next step in creating ways to control cancers. Just a thought.

Antitrust Divisions Sues Physicians

The DOJ Antitrust Division, headed by Christine Varney, a former Board member of one of my former companies, sued a set of physicians for refusing to meet Government dictated prices.

The DOJ statement indicates:

The Department of Justice reached a settlement today with the Idaho Orthopaedic Society, an orthopedic practice group and five orthopedists that will prohibit them from conspiring with competing physicians in the Boise, Idaho, area to deny medical care to injured workers and to engage in group boycotts to obtain higher fees. The department said that the defendants and other orthopedists conspired to gain more favorable fees and other contractual terms by agreeing to coordinate their actions, including denying medical care to injured workers and threatening to withdraw from healthcare plans offered by Blue Cross of Idaho. The department said that their conduct caused the state of Idaho and other healthcare consumers to pay higher fees for orthopedic services.

The complaint continues:

According to the complaint, the conspiring orthopedists engaged in two antitrust conspiracies, which took place from 2006 to 2008. In the first conspiracy, through a series of meetings and other communications, the orthopedists agreed not to treat most patients covered by workers' compensation insurance. They entered into a group boycott in order to force the Idaho Industrial Commission to increase the rates at which orthopedists were paid for treating injured workers. The Idaho Industrial Commission sets the fee schedule that determines the amount that orthopedists and other healthcare providers usually receive for treating patients covered by workers' compensation insurance. The boycott resulted in a shortage of orthopedists willing to treat workers' compensation patients, causing higher rates for orthopedic services.

In the second conspiracy, all of the defendants, except David Lamey, and other conspiring orthopedists agreed to threaten to terminate their contracts with Blue Cross of Idaho. They jointly threatened to terminate their contracts to force Blue Cross of Idaho to offer better contract terms to orthopedists.

This is in my opinion a price fixing by the Government akin to what we saw in the early days of FDR. It is Galbraithian and forces eventually all workers to agree to compensation at rates as mandated by the Government. This is a chilling effect on all workers. Worse is yet to come I believe.