Tuesday, December 16, 2014

Is Vice Media the Coming News Platform?

In a rare but surely not totally unprecedented move for a top lawyer

-- but even noted at Above the Law --

James H. Schwab, see also here,

chairman of the Paul, Weiss law firm media and entertainment group,

is to leave the law firm to join Vice Media as Co-President.

We read about Vice Media at Wikipedia:
"In June 2014, it was reported that Time Warner was negotiating to acquire a minority stake in Vice Media; among the company's plans were to give Vice control over the programming of HLN—a spin-off network of CNN which had recently struggled in its attempts to re-focus itself as a younger-skewing, social media-oriented news service. However, the deal fell through as the companies were unable to agree on a proper valuation,[6] and VICE chose to partner with A&E Networks — a joint venture of Hearst Corporation and The Walt Disney Company, for a 10% minority stake in Vice Media for $250 million, keeping VICE independent."
DealBook at the New York Times has the story at Vice Poaches a Lawyer from Paul, Weiss as Co-President.

Law is a Seamless Web as Published in Four Volumes Tweeted at Twitter

Law is a Seamless Web tweeted at Twitter for the 4 books of the series at

Investment, Money and Berkshire Beyond Buffett at the Stanford Rock Center

Corporate Governance Conference at Stanford Directors' College 2015 for Directors & Senior Executives of Publicly Traded Firms

The ultimate corporate governance conference, the  21st Annual Stanford Directors' College for directors and senior executives of publicly traded firms, will take place June 21-23, 2015 at Stanford Law School, in Stanford, California.

See for background The Directors College and The Arthur and Toni Rembe Rock Center for Corporate Governance, also at Twitter's StanfordRock.

Sunday, December 14, 2014

Italy's Head Man Renzi Seeks to Reform Italy and Pays U.S. President Obama Economic Compliments

If we pay attention carefully to Italy's new 39-year-old head of state,
many people in America may be judging U.S. President Barack Obama wrongly.

We have just been reading Roger Cohen's perspicacious article in the New York Times Sunday Review at Trying to Reinvent Italy.

Cohen writes (excerpted statements):
[as regards America] "I asked Renzi why the [new Italian economic] legislation has an English name. “Because I like what Obama did,” he said. “The most interesting things he’s done have been on the domestic front. He took an economy in crisis in 2009, intervened, relaunched growth, and created jobs, all things that Europe has not succeeded in doing.” ...
[as regards Britain and France]  "[Renzi is] the only new game in town, with Britain caught in a debilitating debate over a possible exit from the European Union and France turning in circles under weak leadership." ...
[as regards Germany] “Here a lot of people have accused Merkel of being the guilty one in the crisis,” Renzi said. “But the fault is not hers. It’s ours. We got ourselves into this. If we had done labor reform 10 years ago, when Germany did it, we would have been a lot better off.” 

[as regards Italy] ... “First I must put my own country in order,” Renzi acknowledged. “Otherwise I will never be credible.”
Check out the article to get a different look of the world than you may be used to. Read Trying to Reinvent Italy.

Hat tip to CaryGEE.

Stanford Lawyer Features Intellectual Property Law and Innovation

For those readers out there interested in intellectual property law,
the new Fall print Issue (#91) of the Stanford Lawyer
features
"IP Law and Innovation - with Mark A. Lemley and A. Douglas Melamed"
(it is online at that link).

Friday, December 12, 2014

Wearables and Wearable Technology are Strong in Coming

Wearables and wearable technology are strong in coming.

We have created the Wearable Technology Wizard blog,
mirrored at WeTechWi.

Take a look.

Clear Individual Search Items from Keyword Drop-Down Box in Mozilla Firefox

A significant irritant in Mozilla Firefox is the "keyword history box" which persists on dropping down previously entered words identical or similar to the one the user is entering, thus detracting the USER from what the USER IS DOING.

There may be people for whom this feature is useful, fine, but those of us who find it a greatly distracting nuisance should not be forced to put up with it!

Why the people at Mozilla Firefox seem to prefer tyrannical force rather than providing democratic and simple toggles to turn features on or off is a mystery to this writer, and that applies to the entire software programming industry.

The whole original idea of the Mozilla Firefox browser was to let the USER do what he wants! Search options and full customizability are essential!

Our solution: We disabled the "remember history" function, but keywords kept appearing.  We then held down the up and down arrow buttons while the cursor is focused on the search bar, then pressed and held down the delete button and that gets rid of the individual stored search keywords and phrases quickly.

See online Clear recent searches from the Search bar and especially at the bottom there, the how-to material on "Clearing individual search items".

The serious user wants full and easy "toggled" personal customizability.
Why not create a separate "Beginners" Mozilla Firefox for the rest of the world?

Thursday, December 11, 2014

Removing Invasive Search Bar Additions in Mozilla Firefox 34

The people at Mozilla Firefox continue not to get the basic fact that many users do not want invasive browser popups or messages of any kind disturbing their work.

The newly introduced search box confusion is just another example of veritable incompetents at work who ignore user wishes.

THE USER's WORK should be in the foreground,
not what some adolescent programmer wants!!!!!

AskVG.com explains how to get rid of the abomination quickly.

Use Method 2 there by changing your about:config settings via the address bar.

Change
browser.search.showOneOffButtons user set boolean true
to
browser.search.showOneOffButtons user set boolean false
and you remove the nonsense thought up by someone with time on their hands.

The search bar now works as before.

Tuesday, December 02, 2014

New Electronic Services Value Added Tax (VAT) Rules (and Record Keeping) in Effect in the European Union Starting 1 January 2015

European Union Value Added Tax (VAT) Rules (and corresponding record keeping) for telecommunications, radio and TV broadcasting and electronic services supplied in the EU Member States change starting January 1, 2015.

Under the new rules, the location of the customer is determinative for the VAT applied.

For example, we today received an email notice from Amazon's Kindle Direct Publishing (KDP) about the new rules, which informed us, inter alia:
"On January 1, 2015, European Union (EU) tax laws regarding the taxation of digital products (including eBooks) will change: previously, Value Added Tax (VAT) was applied based on the seller’s country – as of January 1st, VAT will be applied based on the buyer’s country. As a result, starting on January 1st, KDP authors must set list prices to be inclusive of VAT.  We will also make a one-time adjustment for existing books published through KDP to move from VAT-exclusive list prices to list prices which include VAT. We'll put these changes into effect starting January 1st; you may always change your prices at any time, but you do not need to take any action unless you wish to do so."
Accordingly, one can see that the new rules have very broad implications.

See the European Commission website page on VAT on electronic services.

For practical aspects of implementing the new rules in daily business,
see Tax Briefing at Revenue.ie
and
Taxamo.

Thursday, November 27, 2014

Europe at a Crossroads?

Helmut Kohl, the Chancellor of the German reunification, has a striking piece at Europe is at a crossroads: will we push forward a united Europe of peace and freedom?

Roads, Public Lands and the European Union Idea

Freedom of movement on public roads is something we all take for granted and which did not exist in ancient days. In Europe, for example, Germany served as the model for the greater "Autobahn" idea to get rid of old toll road practices, which greatly diminished freedom of movement. Indeed, things have greatly improved through the European Union -- the antithesis of the former selfish war-torn Europe of individual greedy States, where movement was greatly restricted.

America is facing the reverse problem today of State and private interests trying to appropriate more and more land for regional and/or exclusive use, thus reducing public lands and RESTRICTING individual freedom.

U.S. Senator Martin Heinrich has it right at the New York Times in The Land Grab Out West.

We have written previously at Home Ownership, Elites, Wealth, Congressionally Plundered Federal Lands and a Polarized Society of Haves and Have Nots about how vested interests over the centuries have pilfered national American land from its citizens for ultimately private gain.

If all of this land in the United States still belonged to the people, as it should and as it originally did, there would be much less national debt and much less taxation of the people. Now the people who have acquired that land privately want to keep all the loot and pay no taxes. That is not going to work.

Ideally, the federal government in America represents everyone in the country.

By contrast and by definition, individual U.S. States are minority-run collections of vested local and regional interests and it is hard to make a case that they have done anything useful in American history that could not have been done better federally. A similar logic applies to Europe.

The U.S. Interstate Highway System is one example of "bigger" thinking. Just imagine all U.S. roads being solely in greedy and selfish individual State hands.

A Europe of open borders within its jurisdiction has of course brought new problems, but has also opened up Europe to more freedom of movement by its citizens -- thus INCREASING freedom for all. Will it stay that way? We shall see.

Friday, November 21, 2014

New EU Ambassador to the USA David O’Sullivan Presents European Union Credentials and Tweets at Twitter

In a diplomatic position enabled by the Treaty of Lisbon,
the
New European Union Ambassador David O’Sullivan
this week
presented his EU credentials
to U.S. President Barack Obama.

As written at the website of the
Delegation of the European Union to the United States:
"Ambassador David O’Sullivan presented his credentials to President Barack Obama at a White House ceremony today [November 18], formally assuming the role of European Union Ambassador to the United States.... Ambassador O’Sullivan is only the second diplomat to hold the position of EU Ambassador to the United States, established when the Treaty of Lisbon came into force on December 1, 2009." 
The Irish Times elaborated as follows in
Irishman formally becomes EU ambassador to United States:
"[O'Sullivan] succeeded Portuguese diplomat Joao Vale de Almeida in the role and follows in the footsteps of former taoiseach John Bruton who was the EU’s representative to the US from 2004 to 2009.... Mr O’Sullivan announced he had officially taken up his job in Washington with his first message on social media website Twitter.“Happy to send out my 1st tweet as EU Ambassador to the US after having presented my credentials to @BarackObama @WhiteHouse today,” he wrote in the message."
For Twitter, see:
@EUAmbUS - European Union Ambassador to the United States
@EPWashingtonDC - European Parliament Liaison Office in Washington DC

New Innovation Center at Stanford University to Study the Problem of Deficient Science Research and to Optimize Practices

John P. A. Ioannidis at the Scientific American in Science Research Needs an Overhaul writes that he has co-founded a new center at Stanford University -- the Meta-Research Innovation Center at Stanford (METRICS) -- to deal with the costly problem that most mainstream research is wasted, for example, 85% of medical research, according to The Lancet. He writes that the METRICS center:
"[W]ill seek to study research practices and how these can be optimized. It will examine the best means of designing research protocols and agendas to ensure that the results are not dead ends but rather that they pave a path forward. The center will do so by exploring what are the best ways to make scientific investigation more reliable and efficient."
We applaud this development.

We have been confronted for years by gullible, uninformed, and opinionated people in and out of science proclaiming the near infallibility of mainstream ideas and research methods.

Having taught research ourselves at the university level, we know from experience, of course, that exactly the opposite is true.

Most of what is researched in science and published as a result is a costly waste of time and often leads science in the wrong direction.

One main reason for these follies of "scientific research", as we have written time and time again, is that science in the past has been predominantly "authority-based", whereas "evidence-based" research must be given priority.

Outdated memes must be abandoned.

That is our quest.

Wednesday, November 12, 2014

Better Legislation is the Key to Privacy Rights Protection

BBC News reports at Americans have 'no control' of data that most people expect legislation to be the solution to privacy rights protection, rather than improved technology tools directed to that problem.

Saturday, August 16, 2014

America, America.... From William Jefferson Clinton to the Unstoppable Ralph Nader -- What on Earth Happened?

Well, I am cleaning out my hard disk and found this unfinished posting, a then intended persiflage, dated November 20, 2000. But what has happened since?
____________________________

AND THE WINNER IS...
envelope please...
(gasp?)
and the winner..is...
William Jefferson Clinton.

Using his favorite motto, "Let's go out and win it", Bill Clinton, the consummate politician, had done it again, to the marvel of his supporters and the chagrin of his many detractors.  It was the year 2004 and Clinton was still President of the United States. What on Earth had happened?

It had all started rather harmlessly on a grayish autumn day in November, 2000. The ballots had been cast and the supporters of the Gores and the Bushes had eagerly awaited the results of the now legendary "1st count".

Beaming faces filled American homes.
Everyone was confident that "they" would win.

There was good reason for this boundless optimism.

The Presidential election had been held according to proven systems and methods which had prevailed for hundreds of years.

As the good old boys are prone to say "We've always done it this way."

Additionally, each candidate had sworn a future of milk and honey.

Taxes would be reduced for all...the rich...would get richer.

Equality would spread like wildfire...the poor...would also get richer.

Everyone would profit, in the spirit of the capitalist system.

But wait.... was there a flaw in the soup?

Was the country really READY for THIS development?

Although the American dot-com generation had been preaching modernity to the rest of the world for years, and although there was little doubt that the digital age had begun, very little had been done to bring the people of the country themselves into the 20th century.

So, the 21st century REALLY caught the nation by surprise.
It was the Y2K problem in its worst manifestation.

An electoral college designed for an America of the 1700's, a punch-card system first introduced in the 1800's, and political views, attitudes and methods firmly entrenched in the beginnings of the 1900's had finally caught up with the outdated political system, to the amusement of the rest of the planet.

Americans had begun to find out that someone driving a vehicle made in 2000 was in deep trouble if the motor was nothing more than an antique. And antique it clearly was.

In the course of the "1st count" it became clear that the country was polarized, 50-50, with one half represented by the industrial and high tech centers of the West Coast and the Northeast and the other half represented by the broad provincial masses of the "extended" South, including the Midwest, the Southwest and the Rockies.

It was, as Abraham Lincoln would have stated, a country divided against itself, much along the same lines as the Civil War, 140 years previous.

The vote was so close that the media, who in previous years had "called" the election in the first few wee hours of voting -- and had thereby led the people to believe that their vote was irrelevant -- now suddenly found itself in a dilemma of not knowing who won. ONE VOTE counted.

First they called for one candidate, then the other.

In the end, the media declared the election a stalemate.

As the outcome of the election became less and less clear, the candidates holed up in their castles, and sent out their emissaries....

___________________

Never finished, the preceding material, or what was its beginning, was written on November 20, 2000.

Ponder what has happened in the interim.

It is now 2014, and the winner is ....

Ralph Nader ?!!?

Unstoppable.


Friday, August 15, 2014

Master Inventions: The Syllabic Origins of Writing and the Alphabet


The Syllabic Origins of Writing and the Alphabet
my new book
is now available....

For the print edition, click
The Syllabic Origins of Writing and the Alphabet -- print edition

For the ebook, click

The Syllabic Origins of Writing and the Alphabet -- ebook edition
This is the Kindle edition for the various Kindle devices,
also for the iPad, iPhone, and via the Amazon Kindle App for Android.


Wednesday, July 30, 2014

IMM International Mini Meeting in Maidstone, Kent Showground, England, UK open to the public Sunday, August 3rd.

We don't have one but we know people who do. This looks like a bash! International Mini Meeting in Maidstone, Kent Showground, England, UK open to the public Sunday. http://www.imm2014.co.uk/

Tuesday, July 29, 2014

Privacy Invasions by Commercial Enterprises -- the Example of NVIDIA Update Components and Their Installation of a Hidden User, Updatuser

I was checking permissions on my home network today and found a new user -- Updatuser -- who had been granted permission to view my files, but not (knowingly) by me. Online research led to the finding that Updatuser was installed surreptitiously by NVIDIA (perhaps as part of checking an installation option, with unforseen privacy consequences).

I have nothing against that company and the following online chat with SEN at Nvidia technical support solved the problem of deleting Updatuser via a new, more limited "clean" installation of Nvidia driver software. Nvidia is to be commended for this example of their technical service. Well done.

However, the sneaking in of an unknown and "unconsented to" user (here Updatuser) by a commercial company is symptomatic of a trend in the digital world today whereby user privacy is being abused increasingly by private companies, e.g. by the networking companies, or by the massive totally unnecessary permissions demanded by apps -- apps which by default should be permitted only access to what is absolutely necessary for operation of the app.

With legislatures and courts populated by many apparently politically and religiously backward-yearning people possessed of limited digital knowledge and understanding, it is not surprising that little has been done in the legal world to solve these glaring privacy problems and abuses.

Too many people in government and the judiciary are simply too involved in trying to bring us back into the 18th century or into even more remote religious dark ages -- rather than turning their attention to solve the problems that we actually have today in our modern, contemporary world.

In any case, here is how to get rid of Updatuser (my chat with SEN at Nvidia today, July 29, 2014, with some minor typographical errors corrected)....
"Chat
Status: Connected
Sen (Responding)
Sen: Hi, my name is Sen. How may I help you?
Andis Kaulins: how do I delete UpdatUser which has been installed on my Acer laptop without my permission and apparently stems from Nvidia ... this is no way to do business.
Sen: I apologize for the inconvenience caused to you. Please be assured that I will do my best to help you or point you in the right direction.
Andis Kaulins: so you are a computer not a person, is that right?
Sen: “NVIDIA Update Components” is used to provide you notification, whenever there is any newer driver version.
Sen: Right
Andis Kaulins: delete Updatuser
Sen: I am sorry, I am a human
Andis Kaulins: then how do I delete Updatuser?
Sen: When you select "Perform Clean Installation" while installing the driver, it will automatically remove the older driver, then it restarts the PC (if required) and installs the new driver.
Sen: try "Perform Clean Installation" with unchecking “NVIDIA Update Components”
Sen: Let me know the Operating System (Windows XP/ Vista/ 7 / 8 ) with the version (32 or 64 bit).
Andis Kaulins: Perform Clean Installation - where is it found?
Andis Kaulins: I am going to make a blog posting about this.
Andis Kaulins: 64 bit Windows 8
Sen: 1. Right click on empty space of your screen.
2. Open NVIDIA Control Panel.
3. Click on "System Information" from the left bottom corner.
4. Let me know the driver version.
5. What is the NVIDIA GPU model under "Items" in the left side of that same window ?
Andis Kaulins: GeForce GT 750M
Andis Kaulins: Driver 327.02
Andis Kaulins: API version 11.1
Sen: Thank You for this information. Please close all other windows open except this chat window.
Sen: Please download and save the Driver on the "desktop" using the following link:
http://www.nvidia.com/download/driverResults.aspx/75992/en-us
While installing the drivers, Make sure that you select "custom" installation and then check all the options including "perform a clean install".
Sen: You may "Uncheck" those "3D Vision", "3D Vision Controller", “NVIDIA Update Components” and "NVIDIA HD Audio" options, since you are not using them.
Andis Kaulins: what do you mean that I should save it on desktop and how can I use the link if I have closed the browser?
Sen: You need to open a new browser
Andis Kaulins: ok, the url page says GeForce 337.88 Driver, is that correct?
Sen: Correct
Sen: Just like this picture :
http://www.cadlinecommunity.co.uk/Blogs/ClintonBrown/CB-151111.JPG
Andis Kaulins: ok, thank you - your company has several options - if you sneak in a special user, you have to inform THE USER about that beforehand and ask for his or her consent, otherwise in my opinion this is clearly illegal --- I also do not see why Updatuser is then listed as free to view all my files, which is not necessary for simple updates -- something is wrong there as a matter of invasion of privacy -- please pass that on to the people who run your company -- there are other manufacturers and I am unlikely to buy Nvidia in the future -- you, however, have done a fine job of informing me, thank you!
Sen: I will forward your message to developer department
Andis Kaulins: my options to check -- they automatically shifted me to the German version -- Grafiktreiber (graphics driver), NVIDIA GeForce Experience, and PhysX-Systemsoftware
Andis Kaulins: should I check all of them?
Andis Kaulins: instead of "custom" the German version uses "new installation" for the other checkmark
Sen: Please see the picture I have sent above"
After the new "clean" installation of the Nvidia dirver, Updatuser has apparently been removed. I am keeping my fingers crossed that it remains that way. I might add that I also checked on the "NVIDIA GeForce Experience" and on the "PhysX-Systemsoftware" both of which I determined I do not need. Some gamers may. However, please be aware that checking one or both of those options may -- and probably does -- reinstall Updatuser.

European History: From Bouvines to the Magna Carta: The Origins of British and American Law

The most important battle you've probably never heard of helped pave the way to the Magna Carta and ultimately to our modern democratic system of laws. Hugh Schofield reports at BBC News, writing inter alia:

""Bouvines is the most important battle in English history that no-one has ever heard of," says John France, professor emeritus in medieval history at Swansea University.
"Without Bouvines there is no Magna Carta, and all the British and American law that stems from that. It's a muddy field, the armies are small, but everything depends on the struggle. It's one of the climactic moments of European history."

Friday, July 11, 2014

U.S. Supreme Court Decision Damages Boundary Between Church and State

Is Burwell v. Hobby Lobby, 573 U.S. ___, 2014 WL 2921709, 2014 U.S. LEXIS 4505, 123 Fair Empl.Prac.Cas. (BNA) 621, perhaps the worst decision of the U.S. Supreme Court ever?

Possibly.
It certainly ranks right up there.

We tried to find "less restrictive" words but alas... what else can one do when confronted with the Supreme Court's psychedelic surrealist holding that a commercial for-profit corporation is a person entitled to private, religious exemptions for "devoutly" held beliefs -- a complete jurisprudential novelty in American law that defies the prudent legal mind.

Talk about inexcusable judicial activism and judge-made law. This is it.

One of the disturbing things about narrow "majorities" on the U.S. Supreme Court is that when they judge badly, as they have in the 5-4 Burwell v. Hobby Lobby Stores, Inc. decision, such ATROCIOUS jurisprudence is likely to negatively pervade society and the legal systems in the USA and the world for years to come.

The Hobby Lobby decision has inflicted massive injury on the doctrine of the separation of Church and State and the nation has been severely damaged at its core, putting the country further on the path to becoming a Near-East-like confrontational battleground of religious beliefs rather than being a civilized community governed by and adhering to temporal, non-religious Rule of Law.

It must be added that Hobby Lobby is not a case about some small insignificant "closely held" company of no consequence. This is "big time".

As pointed out by Linda Greenhouse at the New York Times in Reading Hobby Lobby in Context, taking facts out of the case opinion:
"Hobby Lobby Stores, Inc., [is] a multibillion-dollar corporation with 13,000 employees in some 500 locations. Given the undisputed sincerity of the religious beliefs of Hobby Lobby’s Evangelical Christian owners, the company couldn't be required to comply with the mandate to include contraception coverage in its employee health plan, according to the majority opinion by Justice Samuel A. Alito Jr.
Some months ago, Adam Liptak of the New York Times already foresaw the potentially widespread and harmful negative consequences of such a bad ruling in the Hobby Lobby case at Ruling Could Have Reach Beyond Issue of Contraception, quoting former acting solicitor general, Walter Dellinger:
"We would be entering a new world in which, for the first time, commercial enterprises could successfully claim religious exemptions from laws that govern everyone else," Mr. Dellinger said.
As Justice Ginsburg now has written in her powerful dissent in Hobby Lobby, joined by Justices Sotomayor, Breyer and Kagan:
"In a decision of startling breadth, the Court [majority, 5-4] holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.... Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “"less restrictive alternative."” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab [i.e. it is OK for those who may hold a different religious belief to have to pay for the exemption-claimer -- absurd!].... [bracketed material and material in red added by LawPundit]
. . .
Until this litigation, no decision of this Court recognized a for-profit corporation'’s qualification for a religious exemption from a generally applicable law.... The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “"an artificial being, invisible, intangible, and existing only in contemplation of law.”" Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819).  Corporations, Justice Stevens more recently reminded, “"have no consciences, no beliefs, no feelings, no thoughts, no desires.”"  Citizens United v. Federal Election Comm'’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part)."
It is remarkable to this observer that men (and that could be an After Hobby Lobby issue) of such presumably high intelligence -- not joined by any of the women on the court in their decision -- can so poorly appreciate the necessity for drawing a strict line between the State and ANY church, ANY religion, and ANY religious belief, credo, or superstition, no matter how "devoutly" held.

Many of us out here "devoutly" feel we should not have to follow any number of laws enforced by governments. But devout feelings have nothing to do with law, either in terms of extra freedoms of speech or extra freedoms of religion.

We support freedom of speech.
Speak your mind. Write what you will.
But be prepared to take the consequences of your actions if 3rd parties are affected.

We support freedom of religion.
Worship in the church of your choice.
Believe what you will.
But do not push your religious beliefs upon 3rd parties or have them pay what should be YOUR fair share of payment in this world. Money is not religion.

In temporal affairs, according to the "Rule of Law", the temporal STATE is paramount in its sovereignty and cannot be permitted to tolerate ANY competitors, from any quarter, especially not from religions and sects.

That is the essence of the doctrine of separation of Church and State, a doctrine which has almost single-handedly enabled our modern world to emerge out of the many war-filled religion-dominated dark ages of humanity.

The sovereign American STATE is prohibited by its Constitution from applying laws discriminatorily based upon the religious views of its citizens.

Indeed, few things establish religion MORE than PREFERENTIAL treatment of religions in the eyes of the law, and that kind of establishment of religion is absolutely prohibited by the U.S. Constitution. NO PREFERENCES. NONE.

Once again in this case, self-proclaimed "originalist" judges such as Justice Scalia have ignored one of the clearest and most original mandates of the U.S. Constitution in order to obtain a legally contraceptive result which "they like", but which has nothing to do with true freedom of religion or with proper interpretation of the provisions of the U.S. Constitution.


Monday, June 23, 2014

Business Method and Software Patents in the Aftermath of the U.S. Supreme Court Decision in Alice Corp. v. CLS Bank International

SCOTUSblog looks at the world of patents after the U.S. Supreme Court decision in the Alice v. CLS software business method patent case.


where it is written, inter alia (excerpted, links removed):
"In The National Law Journal’s Supreme Court Brief, Tony Mauro reports on the possibility that ... Alice Corp. v. CLS Bank International ... will “prove to be a turning point in the corporate world’s battle against patent trolls.”  Other coverage ... comes from John Duffy ... Jaclyn Belczyk ... Sandra Park, Rob Merges, Justin Nelson, and David Kappos."
The full original paragraph of the above at SCOTUSblog has links to the respective contributions. Take a lOOk.

Thursday, June 19, 2014

Software and Business Method Patents Limited by Unanimous U.S. Supreme Court Holding in Alice Corp. v. CLS Bank International

“If everybody minded their own business, the world would go around a great deal faster than it does.”
Lewis Carroll, Alice in Wonderland

The U.S. Supreme Court has issued a unanimous opinion in the long-awaited business method software patents case Alice Corp v. CLS Bank International, No. 13-298 and has restored some of our otherwise waning faith in the wisdom of that Supreme Court.

Our sister site LawPundit posted about this case previously inter alia at:
The Supreme Court's holding is recited at the very beginning of the opinion, written excellently and understandably by Justice Thomas, as follows:
"The patents at issue in this case disclose a computer-implemented scheme for mitigating “settlement risk” (i.e., the risk that only one party to a financial transaction will pay what it owes) by using a third-party intermediary. The question presented is whether these claims are patent eligible under 35 U. S. C. §101, or are instead drawn to a patent-ineligible abstract idea. We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention."
Justice Sotomayor also wrote a very short concurring opinion, joined by Justice Ginsburg and Justice Breyer, stating:
"I adhere to the view that any “claim that merely describes a method of doing business does not qualify as a ‘process’ under §101.” Bilski v. Kappos, 561 U. S. 593, 614  (2010) (Stevens, J., concurring in judgment); see also In re Bilski, 545 F. 3d 943, 972 (CA Fed. 2008) (Dyk, J., concurring) (“There is no suggestion in any of th[e] early [English] consideration of process patents that processes for organizing human activity were or ever had been patentable”). As in Bilski, however, I further believe that the method claims at issue are drawn to an abstract idea. Cf. 561 U. S., at 619 (opinion of Stevens, J.). I therefore join the opinion of the Court."
The Supreme Court in making its unanimous opinion relies heavily on the precedents found in Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. ___, ___ (2013), Bilski v. Kappos, 561 U. S. 593, S. Ct. 3218 (2010) and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___ (2012), by holding:
  • that laws of nature, natural phenomena, and abstract ideas are not patentable,”
  • that "the concept of intermediated settlement" was an abstract idea, and
  • that method claims merely requiring generic computer implementation, fail to transform that abstract idea into a patent-eligible invention.
As Justice Thomas writes:
"[T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention."
The general law applicable to patents and patent eligibility is thus recited by Justice Thomas as follows (excerpted from the slip opinion):
"Section 101 of the Patent Act defines the subject matter eligible for patent protection. It provides:
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”" 35 U. S. C. §101.
“"We have long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.”" Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U. S. ___, ___ (2013) (slip op., at 11) (internal quotation marks and brackets omitted). We have interpreted §101 and its predecessors in light of this exception for more than 150 years. Bilski, supra, at 601-–602; see also O'Reilly v. Morse, 15 How. 62, 112-–120 (1854); Le Roy v. Tatham, 14 How. 156, 174-–175 (1853).
We have described the concern that drives this exclusionary principle as one of pre-emption. See, e.g., Bilski, supra, at 611-–612 (upholding the patent “"would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea”). Laws of nature, natural phenomena, and abstract ideas are " ' "“the basic tools of scientific and technological work.”" ' " Myriad, supra, at ___ (slip op., at 11). "“[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it,"” thereby thwarting the primary object of the patent laws. Mayo, supra, at ___ (slip op., at 2); see U. S. Const., Art. I, §8, cl. 8 (Congress “"shall have Power . . . To promote the Progress of Science and useful Arts"”). We have “"repeatedly emphasized this . . . concern that patent law not inhibit further discovery by improperly tying up the future use of" ”these building blocks of human ingenuity. Mayo, supra, at ___ (slip op., at 16) (citing Morse, supra, at 113).
At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. Mayo, 566 U. S., at ___ (slip op., at 2).  At some level, "“all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id., at ___ (slip op., at 2). Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U. S. 175, 187 (1981). "“[A]pplication[s]”" of such concepts “‘"to a new and useful end",’ ”we have said, remain eligible for patent protection. Gottschalk v. Benson, 409 U. S. 63, 67 (1972).
Accordingly, in applying the §101 exception, we must distinguish between patents that claim the “" '‘buildin[g] block[s]' "’ ”of human ingenuity and those that integrate the building blocks into something more, Mayo, 566 U. S., at ___ (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at ___ (slip op., at 3).  The former "“would risk disproportionately tying up the use of the underlying"” ideas, id., at ___ (slip op., at 4), and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under our patent laws."
For more details of the unanimous Supreme Court opinion, especially as regards:
"... a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts"
go to Alice Corp v. CLS Bank International, No. 13-298.

__________

News media have of course reported the decision, e.g. at:

New York Times -- Adam Liptak -- Supreme Court Rules Against Alice Corp. in Patent Case

Wall Street Journal --  Brent Kendall -- Supreme Court Sides With CLS Bank by Tossing Forex Software Patents
 
USA Today -- Richard Wolf -- Supreme Court cuts back on software patents

Forbes -- Daniel Fisher -- Saying 'Do It On A Computer' Not Enough To Save Patent, Supreme Court Rules

NPR -- Krishnadev Calamur -- Supreme Court Rules Against Patents For Abstract Ideas

Bloomberg -- Greg Stohr and Susan Decker -- Software Patent Protection Curbed by U.S. Supreme Court



Friday, June 13, 2014

DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council.

With reference to our immediately preceding posting,
go to this link at EUR-Lex
for the fulll text in the various EU languages
of DIRECTIVE 2011/83/EU
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011
on consumer rights,
amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council
and repealing Council Directive 85/577/EEC
and Directive 97/7/EC
of the European Parliament and of the Council.

Thursday, June 12, 2014

Massive Landmark Consumer Protection Law Goes Into Effect in the EU (European Union) on Friday the 13th of June 2014 Affecting Many Businesses and Online Presences

People who think that EU administrators and legislators in Brussels do nothing useful better think again.

The pioneer landmark Consumer Rights Directive, which was passed by the European Union (EU) on October 2011, and which required Member States to implement corresponding legislation by December 13, 2013,
goes into effect in the EU tomorrow, Friday the 13th, 2014

The provisions of the Consumer Rights Directive make numerous and in our opinion absolutely necessary wide-sweeping changes to protect consumers and to put an end to many abusive commercial practices, online and offline.

The Consumer Rights Directive thus eliminates hidden charges and costs for online sales, demands disclosure of "total costs" for price transparency, provides for 14-day withdrawal of online purchases and an EU-wide model withdrawal form, requires disclosure of costs for returned goods beforehand, forbids pre-ticked boxes on websites, fixes telephone hotline charges at the low basic rate for telephone calls, eliminates credit card payment surcharges, sets forth stricter rules for the description of digital content offered for sale (software and hardware compatability, copying limitations), and provides common rules for businesses all over Europe.

The details are outlined in a press release issued by EUROPA.EU on June 23, 2011 as follows (links to other languages available here):

"MEMO/11/450
Brussels, 23 June 2011

Consumer Rights:
10 ways the new EU Consumer Rights Directive
will give people stronger rights
when they shop online

Good news for consumers: new EU legislation will strengthen their rights in all 27 Member States. The European Parliament today adopted – by an overwhelming majority (615 for, 16 against, 21 abstentions) – the Consumer Rights Directive, which the European Commission proposed in October 2008 (IP/08/1474). The vote follows a deal reached between the three EU institutions (European Commission, European Parliament and the Council of Ministers), and clears the final hurdle before the new rules can become reality for consumers.

EU Justice Commissioner, Viviane Reding, who already championed consumer-friendly EU rules in 2007 and 2009 to drastically reduce mobile phone roaming charges, said: "This is a good day for Europe’s 500 million consumers. Today's adoption of the new EU Consumer Rights Directive will strengthen consumer rights by outlawing Internet fraudsters who trick people into paying for horoscopes or recipes that appear to be offered for free. Shoppers will no longer be trapped into buying unwanted travel insurance or car rentals when purchasing a ticket online. And everyone will have 14 days if they wish to return goods bought at a distance, whether by internet, post or phone. I would like to thank the European Parliament's rapporteur, Andreas Schwab, as well as the Hungarian EU Presidency, for their committed support and work that made this political breakthrough possible. The European Commission will help ensure that the new rules are implemented swiftly in all Member States so that consumers across Europe can have more confidence when shopping, whether online or offline.”

In today’s vote, the European Parliament backed a political agreement between negotiators of the European Parliament, the Council and the Commission. In March 2010, EU Justice Commissioner Reding made it clear that any agreement on the Directive would require a sound balance between consumers’ interest in stronger rights and businesses’ interest in taking full advantage of the EU's Single Market (see SPEECH/10/91).

Last steps in the legislative procedure:

Formal approval of the agreed text of the EU Consumer Rights Directive by the EU Council of Ministers (September);
Publication of the new Directive in the EU's Official Journal (this autumn);
Transposition of the new rules into the national laws before the end of 2013.

The following are the 10 most important changes for consumers in the new Directive:

1) The proposal will eliminate hidden charges and costs on the Internet

Consumers will be protected against "cost traps" on the Internet. This happens when fraudsters try to trick people into paying for ‘free’ services, such as horoscopes or recipes. From now on, consumers must explicitly confirm that they understand that they have to pay a price.

2) Increased price transparency

Traders have to disclose the total cost of the product or service, as well as any extra fees. Online shoppers will not have to pay charges or other costs if they were not properly informed before they place an order.

3) Banning pre-ticked boxes on websites

When shopping online – for instance buying a plane ticket – you may be offered additional options during the purchase process, such as travel insurance or car rental. These additional services may be offered through so-called ‘pre-ticked’ boxes. Consumers are currently often forced to untick those boxes if they do not want these extra services. With the new Directive, pre-ticked boxes will be banned across the European Union.

4) 14 Days to change your mind on a purchase

The period under which consumers can withdraw from a sales contract is extended to 14 calendar days (compared to the seven days legally prescribed by EU law today). This means that consumers can return the goods for whatever reason if they change their minds.

Extra protection for lack of information: When a seller hasn’t clearly informed the customer about the withdrawal right, the return period will be extended to a year.

Consumers will also be protected and enjoy a right of withdrawal for solicited visits, such as when a trader called beforehand and pressed the consumer to agree to a visit. In addition, a distinction no longer needs to be made between solicited and unsolicited visits; circumvention of the rules will thus be prevented.

The right of withdrawal is extended to online auctions, such as eBay – though goods bought in auctions can only be returned when bought from a professional seller.

The withdrawal period will start from the moment the consumer receives the goods, rather than at the time of conclusion of the contract, which is currently the case. The rules will apply to internet, phone and mail order sales, as well as to sales outside shops, for example on the consumer's doorstep, in the street, at a Tupperware party or during an excursion organised by the trader.

5) Better refund rights

Traders must refund consumers for the product within 14 days of the withdrawal. This includes the costs of delivery. In general, the trader will bear the risk for any damage to goods during transportation, until the consumer takes possession of the goods

6) Introduction of an EU-wide model withdrawal form

Consumers will be provided with a model withdrawal form which they can (but are not obliged to) use if they change their mind and wish to withdraw from a contract concluded at a distance or at the doorstep. This will make it easier and faster to withdraw, wherever you have concluded a contract in the EU.

7) Eliminating surcharges for the use of credit cards and hotlines

Traders will not be able to charge consumers more for paying by credit card (or other means of payment) than what it actually costs the trader to offer such means of payment. Traders who operate telephone hotlines allowing the consumer to contact them in relation to the contract will not be able charge more than the basic telephone rate for the telephone calls.

8) Clearer information on who pays for returning goods

If traders want the consumer to bear the cost of returning goods after they change their mind, they have to clearly inform consumers about that beforehand, otherwise they have to pay for the return themselves. Traders must clearly give at least an estimate of the maximum costs of returning bulky goods bought by internet or mail order, such as a sofa, before the purchase, so consumers can make an informed choice before deciding from whom to buy.

9) Better consumer protection in relation to digital products

Information on digital content will also have to be clearer, including about its compatibility with hardware and software and the application of any technical protection measures, for example limiting the right for the consumers to make copies of the content.

Consumers will have a right to withdraw from purchases of digital content, such as music or video downloads, but only up until the moment the actual downloading process begins.

10) Common rules for businesses will make it easier for them to trade all over Europe.

These include:

A single set of core rules for distance contracts (sales by phone, post or internet) and off-premises contracts (sales away from a company’s premises, such as in the street or the doorstep) in the European Union, creating a level playing field and reducing transaction costs for cross-border traders, especially for sales by internet.

Standard forms will make life easier for businesses: a form to comply with the information requirements on the right of withdrawal;

Specific rules will apply to small businesses and craftsmen, such as a plumber. There will be no right of withdrawal for urgent repairs and maintenance work. Member States may also decide to exempt traders who are requested by consumers to carry out repair and maintenance work in their home of a value below €200 from some of the information requirements."

Friday, April 25, 2014

The U.S. Supreme Court Affirmative Action Decision in Schuette and the Difference between RACE and Assigned Weights in Race Horse Handicapping

This is a mirror follow-up to our previous posting at LawPundit on U.S. Supreme Court Holds that a State Can Ban Racial Affirmative Action in Public University Admissions: Schuette v. Coalition to Defend Affirmative Action.

Below are some links to in part conflicting mainstream opinions on the significance of the holding in the affirmative action case Schuette v. BAMN (slip opinion, No. 12–682, argued October 15, 2013—, decided April 22, 2014).

Ann Althouse - Althouse
The Supreme Court decides Schuette, the affirmative action case about Michigan's state constitutional law ban on affirmative action
which she follows up with
The way to get a concurring opinion out of Chief Justice Roberts is to rewrite his famous aphorism, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race").

After reading Althouse, we asked the question of what distinguishes RACE and the U.S. Constitution from the assignment of weights in race horse handicapping, whereby stronger horses are assigned more weight to carry than weaker horses in order to make races "more competitive".

RACE may matter, as Althouse emphasizes via Justice Sotomayor, but life is not horse racing and we are not opting for a world in which people best suited for being brain surgeons are unduly "weighted" so that those least suited for being brain surgeons are "unweighted" to give them a competitive chance to do brain surgery. The same holds true for academics in general and for all other areas of human activity.

Of course, as regards contra views citing to other forms of "permissible" discrimination, e.g. we find the "legacy" practice of academic and other institutions to be abominable, if understandable, but not illegal, and legacies "could" similarly be "banned" by law, if the people so desired.

Given the vast inequality of wealth and income in the United States, the main problem is that the truly "strongest" horses are taking away the lion's share of the winnings without an appropriate share being given to the "also rans", who are also important, because no one wants to see races in which just the obviously strongest horse alone is participating.

But that problem is not be solved by affirmative action, but rather by more sensible and equitable distributions of the nation's wealth and income.

More opinions:

Robert Barnes - Washington Post

Supreme Court upholds Michigan’s ban on racial preferences in university admissions

Barnes presents an overview of the various issues involved.

Charles Krauthammer - Washington Post
Finally getting it right on affirmative action

Krauthammer concludes that "This gives us, finally, the basis for a new national consensus." Hat tip to CaryGEE.

Andrew Woodman - Huffington Post
In Schuette, Roberts Continues Legacy of Bringing the Court Into the 21st Century

Woodman finds that "this decision has shown the willingness of the Roberts court to take a new look at the data and update jurisprudence for the 21st century."

Dennis D. Parker - Huffington Post

We're All Losers After the Supreme Court's Decision in Schuette

Parker thinks many have lost through this decision, which he says supports "rigging the game" in favor of certain groups.

Roger Pilon - CATO at LIberty, CATO Institute

Reflections on Schuette v. Coalition to Defend Affirmative Action

Pilon writes that there is simply too much government, i.e. public institutions of higher education.

Elie Mystal - Above the Law

3 Reasons Affirmative Action Will Be Okay Despite Schuette Decision

Mystal urges everyone to calm down, indicating that affirmative action will continue to be practiced in a myriad of legal ways.


Friday, April 18, 2014

Europe Russia USA China and the World: Where Are We Headed? Thoughts on The Bear That Talks Like a Man at the WSJ

This is a posting regarding Peggy Noonan's yesterday article in the Wall Street Journal on The Bear That Talks Like a Man: Conflict with Russia neither began nor ended with the Cold War.

Well, before reading further, you may ask, what do WE know about Russia?

With all due respect to Noonan at WSJ and George Friedman of Stratfor​, both experienced in this area of political and military discourse, but that particular article looks to us like a bucket loaded with illusory wishful thinking, wishful thinking that could -- detrimentally -- find its way into U.S. foreign policy.

To understand Russia, it would seem that more information must be acquired, before correct conclusions about events can be drawn.

What are the facts? FACTS.

We surely do not have a monopoly on facts, but some of the indisputable facts are that Russia lords over vast quantities of vital natural resources and that the military has been getting stronger under President Putin's leadership.

Here are some individually selected items in this regard:
  • Furthermore, Putin recently signed an agreement with China over "eased" travel rules between the two powers for "businessmen, scientists, culture and public figures, and athletes": http://en.itar-tass.com/russia/727480

    That does not look like a Russia that is becoming weaker. Indeed, in terms of economic comparative advantage, Russia and China would each seem to have a lot to offer one another in terms of trade at vital levels.
Given all of the above, we thus do not worry very much about Russia collapsing in the near future.

Quite the contrary, we see that the Russian Federation is getting stronger and stronger, economically and militarily, which will clearly create new political conditions in the future.

Demographics are also a very important parameter, with Russia and the USA both having populations near 300 million, which sets limitations on what they can do, whereas Europe dominates economically with 500 million persons.

We wish it were otherwise, but the country we worry about most is the United States itself, a country divided increasingly into haves and not haves, and guided e.g. by a U.S. Supreme Court dominated in the majority by "yesterday yearners" and a similarly backward-looking  populist-populated Congress with too many political elements living in a "Boston Tea Party" nostalgia-like celebration of past glories, http://en.wikipedia.org/wiki/Tea_Party_movement

whereas the real world is moving forward and leaving America behind.

See e.g.
Only in such traditional parameters as "ease of doing business" and "economic freedom" is America holding its own, and even here the trend appears to be downward:
http://www.doingbusiness.org/rankings
http://www.heritage.org/index/ranking
Accordingly, whether or not the political parties and representatives in the USA want political "change" or not, the nation really has little actual choice on the matter, because the rest of the world IS CHANGING.

NECESSITY drives the world, and that means change, by definition.
Hat tip to CaryGEE for drawing my attention to the WSJ article.


Sunday, April 13, 2014

World Legal Market of Nearly $1 Trillion in Global Turmoil on a Grand Scale

At Venture Beat, Nicole Bradick, Potomac Law Group, has an interesting report on the status of the world's legal profession at All rise: The era of legal startups is now in session.

People estimate the global legal market to be at about $800 billion annually, approaching the $1 trillion mark. That is a lot of law, and it represents a legal market that increasingly finds itself in global turmoil on a "grand scale".

Take a look.




Patents on Business Processes, Methods and Software under scrutiny at the U.S. Supreme Court in Alice Corp. v. CLS Bank Int’l (13-298) March 31, 2014 Oral Arguments

One of the best ways to understand "law" in the making is to read United States Supreme Court oral arguments, such as the recent March 31, 2014 oral argument in the case of Alice Corp. v. CLS Bank Int’l (13-298).

We have selected, excerpted and commented what we regard to be some important points made in this case, in which a business process to be implemented by software is claimed quite independent of any software!

This is like some of the kind of "mischief" predicted by Justice Stevens in the aftermath of Bilski.

At issue here in Alice Corp. is the question whether that kind of patent claim is nothing more than the attempted patenting of "abstract ideas", which are, according to U.S. Supreme Court precedent, not patentable.
"...

JUSTICE SOTOMAYOR:

Is your software copyrighted?

MR. PHILLIPS [on behalf of petitioners]:

No, I don't believe so.

JUSTICE GINSBURG:

There is no special software that comes with this ­­ that's part of this patent, is it ­­ is there?

MR. PHILLIPS:

No. Justice Ginsburg, what we did here is what the Patent and Trademark Office encourages us to do and encourages all software patent writers to do, which is to identify the functions that you want to be provided for with the software and leave it then to the software writers, who I gather are, you know, quite capable of converting these functions into very specific code.

...

JUSTICE KAGAN:

Mr. Perry ... you said to Justice Scalia if a patent sufficiently describes how a computer will implement an idea then it's patentable. So how sufficiently does one have to describe it? What do we want a judge to do at this threshold level in terms of trying to figure out whether the description is sufficient to get you past it?

MR. PERRY [on behalf of the respondents]:

First in the negative: What the applicant or patentee must do ­­ must not do is simply describe the desired result. That would take us back to State Street. That would simply say: I claim a magic box that buys high and sells low or vice versa, I suppose, I claim a magic box for investing. That's what these patents do.

Then to put it in the affirmative and in the language of Mayo, the claim has to recite something significantly more, something significantly more than the abstract idea itself. That would be a contextual analysis based on the claims and specifications and file history, and we know that some devices, some methods, some programming will pass that.

It is not going to be a bright­line rule and that's one of the tug­of­war issues that this Court and the Federal Circuit have been having in these cases. The Federal Circuit wants bright­line rules: All computers are in or all computers are out.

This Court has been more contextual. This Court has been more nuanced. This Court has looked at things in a more robust way.

...

JUSTICE GINSBURG:

The Federal Circuit in this case split in many ways, and it had our decisions to deal with. You said, given Bilski and Mayo, this is an easy case. What is the instruction that escaped a good number of judges on the Federal Circuit? How would you state the rule?

MR. PERRY:

Your Honor, I think there's a significant element to the Federal Circuit that disagrees with Mayo and has been resistant in applying it."
Things are not helped along when Chief Justice Roberts is seemingly impressed by arrow-vectors in the patent documents:

CHIEF JUSTICE ROBERTS:
"[It] constitutes the instructions about how to use the computer and where it needs to be affected. And just looking at it, it looks pretty complicated. There are a lot of arrows and they ­­-- you know, different things that go -- ­­(Laughter.) ... Well, but I mean, you know, it -- in different directions. And I understand him to say that in each of those places, that's where the computer is needed."
Was that all tongue-in-cheek? or merely more expectable "mischief", as predicted by Justice Stevens in Bilski?

We wrote in The United States Supreme Court Passes the Buck in the Bilski Patent Case : Business Methods are Patentable : Abstract Ideas are Unpatentable:
"[T]he Supreme Court denied Bilski's patent on the alternative ground that it was an "abstract idea", pursuant to the Supreme Court's earlier precedents, which hold that "laws of nature, physical phenomena, and abstract ideas" are not patentable subject matter. Just how the Court determined what an abstract idea is and what it is not not, is not clear from the opinion.

The majority refused to strike down Bilski's patent on the grounds that it was a business method, indicating instead that a patent-eligible "business method" might be patentable as a "process" within the meaning of the statute -- thus possibly opening up a new Pandora's Box for the patent world, much to the consternation of Justice Stevens, concurring in judgment,
who wrote:
"The Court correctly holds that the machine-or-transformation test is not the sole test for what constitutes a patentable process; rather, it is a critical clue. [footnote 1] But the Court is quite wrong, in my view, to suggest that any series of steps that is not itself an abstract idea or law of nature may constitute a “process” within the meaning of §101. The language in the Court’s opinion to this effect can only cause mischief." [emphasis added by LawPundit]"
Small wonder that much of intellectual property law continues to remain in such a needless mess, nor is the ultimate decision in Alice Corp. going to help us much, as the Court in oral argument indicated that it will not be knocking down patents for business methods or processes or for software patents.

It will most certainly not be adopting the impossible standard suggested by the United States government as amicus curiae:
"GENERAL VERRILLI [on behalf of the United States]:

An abstract idea does not become patent­ eligible merely by tacking on an instruction to use a computer to carry it out. A computer makes a difference under Section 101 when it imposes a meaningful limit on the patent claim. That occurs when the claim is directed at improvement in computing technology or an innovation that uses computing technology to improve other technological functions. That's the test that we believe is most faithful to this Court's precedents in Bilski and Mayo."
How could the U.S. government suggest the adoption of such a complex, inappropriate standard? In any case, a definition of patent eligibility tied in ANY way to "a computer" seems to us to be unjustified.

"Software" is nothing other than strings of characters that contain (ultimately) machine-readable instructions for machines that we specifically call computers, printers, keyboards, handhelds, etc., but machines nonetheless.

All software is merely specialized TEXT characters, organized in a given manner, and such instructions should never have been seen as being patentable subject matter. The fact that computers can read that text FASTER and can implement such instructions FASTER is NOT an invention.

At best, if at all protected by IP law, then such protection of the actual software code should only be by copyrights.

TEXT, in the general history of law and legal thinking, is not "an invention".

An "invention" can only be WHAT something does by virtue of text character software code commands that it receives.

For purposes of patentability, an actual working "something" should have to exist (whether as a machine or as a software program) and do what the invention says it does in its unique way, and only that unique way as embodied in that particular invention should be patentable, unless it is not novel and/or obvious to anyone in the state of the art, and not anticipated by prior art (which most "inventions" in fact are).

By no means should "non-built" machines and "non-written" software be able to claim broad swathes of monopolistic patent protection on the promise that a working "something" is in the offing. Talk about "abstract ideas"!

Moreover, whether a "machine" involved is a computer or simply a new-fangled toaster should make no difference, if e.g. a new way to "pop up" the bread has been invented.

The distinction between computers and "other" machines is thus in error. All machines need commands viz. operators. That is no invention.

Similarly erroneous are suggestions from the direction of the Federal Circuit that one should separate off chosen areas in "biological sciences" from other areas of "invention", as if different rules applied.
"MR PERRY:

[F]ormer Chief Judge Michelle filed a brief in this Court essentially saying Mayo is a life­sciences case, You should limit it to that because if you apply it to everything else, then these patents are no good. 

Mayo we submit is a technology-­neutral, industry-­neutral, exception­neutral framework that can be used to answer all of these questions."

Saturday, March 15, 2014

German Unemployment Programs as a Model

Glen Hutchins at the New York Times
examines Germany's success in dealing with unemployment at
Work Like a German
writing:
"There is a consensus to be won here: Liberals should get behind reforms that incentivize work, and conservatives should back the required government spending."
Take a look.

New Generations Tend to be "Free Market" on Economic Issues and "Libertarian" on Social Issues

At the New York Times, Jonathan Martin writes that Young Republicans Find Fault With Elders on List of Social Issues.

The world is necessarily changing in our information age and young people are not only better informed than ever, but as a result have different value systems than their elders.

Politicians of all nations should be careful in following "old guard" ideas that may well be greatly in conflict with the "will" of coming younger generations.

Russia, China, Putin, Crimea and Ukraine, the Baltic and Related Topics ... "I am Not Sure"

When I was invited by my late good friend Dietrich André Loeber to Europe to do some academic research on East-West relations at the University of Kiel in 1974, Professor Loeber (see Gert von Pistohlkors), whose father had been a Latvian Supreme Court Justice between the world wars, was from my point of view probably the most knowledgeable person in the West about important practical aspects of the Soviet Union, and remained so until his death in 2004.

Loeber was a descendant of Martin Luther by ancestry, a Baltic-German by heritage, spoke fluent German, English, Latvian and Russian, and had great affection for Latvia and Riga, which was his boyhood home. He was by predilection a jurist and academic through and through and had an almost naturally diplomatic character. If he disagreed with you, the worst that he might say would be, "I am not sure...." He may have been a quiet patriot, but politics "as such" was not his game, and that was his great strength.

He was able to travel to and from the Soviet Union with relative ease because he kept a low profile, was very fair and objective in his academic publications, rarely if ever took partisan sides on any issue, and maintained good relations with all persons he dealt with, East or West. As I wrote previously:
"Loeber himself was a consummate expert on Russia, and when he visited me in New York City in 1974 to invite me to work with him in Kiel, he predicted that the then Soviet Union (the Union of Soviet Socialist Republics, also called the USSR) would fall apart within the next 20 years. Had I not believed his prognostication, I would never have left the United States to come to Europe. As it turned out, less than 20 years later, in 1991, the Soviet Union in fact ceased to exist, and the Baltic States regained their independence, just as Loeber had predicted. He viewed this development as inevitable, and, it would appear now, in an era of the global sharing of knowledge and information, as irreversible. The old days could never return. Something new was coming, and had to come."
What that "something new" will be in the Russian Federation is still in the process of development, as the current political situation clearly indicates. The impressive Winter Olympic Games at Sochi showed that a modern Russia is possible and that great strides have been made on the road to progress. At the same time, the current political situation in Ukraine shows that "old" Russia is to some unknown degree still present among the Russian leadership.

How would Loeber have viewed the present situation?

"I am not sure...."

One aspect of the present situation, as written by Ellen Barry at the New York Times, is surely that Foes of America in Russia Crave Rupture in Ties.

But is Barry fundamentally right in her analysis?

"I am not sure...."

There is unquestionably a strong "old guard" in Russia, as in all other countries as well. The resurrection of "old" Russia would invariably go hand in hand with the resurrection of countering forces in the USA and Europe. We do not see how that would be good for anyone. Do we really want their revival?

Indeed, the situation in Crimea and Ukraine could shift the next Presidential election in the USA to the advantage of the more conservative Republicans, who now have a strong argument that political moderation and appeasement are not the right solution for US foreign policy toward the Russian Federation. When one "iron fist" comes onto the table, more such "iron fists" appear elsewhere. The world is then "at odds" -- and who profits?

The older generations are passing and new generations are coming -- faced with a digital era that puts different demands upon them and requires new and different solutions than the often flawed formulas of yesteryear.

We live in an "information" age that would make new "Cold Wars" rather senseless. People simply know too much today, so that modern life is not possible by keeping citizens uninformed or isolated. It is an age of more expanded, not more limited communications. Nations should rather ask: how can we improve the lives of our people through that development?

This does not mean, of course, that countries can not take new directions, or shift emphasis from one part of the globe to another. Everyone has the right to follow their self-interest. Recognition of that fact would help everyone. See for its instant impact on future developments the new: Law on ratifying Russian-Chinese agreement on simplifying reciprocal travel procedures.

We ourselves are of the opinion that American influence is waning worldwide and that being a "Cold Warrior" or not has little impact on that development. Here in Europe, for example, America is no longer the vanguard of the future it was once seen to be. It has lost much of its role model status for others.

Indeed, the vast inequality of income and wealth in the United States and the battle over basic health care for its citizens -- an accepted fact of life in all other industrialized nations -- shows that America has strayed badly from its ideals, ideals which have always been the source of its strength as a nation.

Nations seeking the "best" for everyone and not just for themselves have always been rare on the world scene, and now appear to be rarer still.

In any case, historical "personalities" were an item of interest for Dietrich André Loeber in his academic studies, and I recall his interest in Mikhail Bakunin, part of whose -- what we might today call "libertarian" -- philosophy may be finding resonance in top echelons of Russian leadership:
"Bakunin ... rejected the notion of any privileged position or class, since the social and economic inequality implied by class systems (as well as systems of national and gender oppression) were incompatible with individual freedom. Whereas liberalism insisted that free markets and constitutional governments enabled individual freedom, Bakunin insisted that both capitalism and the state, in any form, were incompatible with the individual freedom of the working class and peasantry.
"[I]t is the peculiarity of privilege and of every privileged position to kill the intellect and heart of man. The privileged man, whether he be privileged politically or economically, is a man depraved in intellect and heart."
Bakunin's political beliefs were based on several interrelated concepts: (1) liberty; (2) socialism; (3) federalism; (4) anti-theism; and (5) materialism. He also developed a (resultantly prescient)[26] critique of Marxism, predicting that if the Marxists were successful in seizing power, they would create a party dictatorship "all the more dangerous because it appears as a sham expression of the people's will."[27]
Those, for example, who might think that the present Russian President, Vladimir Vladimirovich Putin, is a resurgent Communist or Marxist, would be very wrong. Quite the contrary, he surely views himself as being the leader for the true expression of the Russian people's "will".

For those who can read German, click the link below to read the somewhat dated but still greatly informative and superb article at Die Welt by Edith Kohn, from which it appears that Putin early saw himself as "a soldier", and today perhaps similarly may see himself as "a soldier for his country", whose aim it is to restore the strength and greatness of Russia.

Vladimir Putin: Ein Geheimagent im Geiste

Recall that we ourselves have a Baltic background and have no reason to write favorably about Russia. However, if one is to understand the world, as Loeber would have recommended, one must be objective in understanding events and personalities.

In the case of Russia, Putin and the future, Loeber might have said -- for now:

"I am not sure...."



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