Thursday, December 29, 2005

Robotic structures

One of the big engineering advantages of outer space is that microgravity allows for very large structures. First, however, one must figure out how to deploy the structure. Here's an interesting new approach.

Patents: the problem of gratuitous elements

Alas, from what I've seen so far of the LabCorp v. Metabolite briefs, they don't hit on the biggest problem in this area, namely the problem of gratuitous elements.

I have written about how software became patentable in the United States. In a nutshell, the forbidden category of algorithms became patentable because the trivial combination of (novel algorithhm + prior art patentable subject matter) was held by the Federal Circuit to be patentable subject matter. Thus, a good patent drafter could simply added a broad prior art element such as "a device with memory" to an algorithm to make it patentable. (All digital computers are devices with memory). Adding the gratuitous element did not add to the novelty or non-obviousness of the invention, but instead served to make the claim look like patentable subject matter.

In LabCorp v. Metabolite, the claim has the pattern (novel scientific discovery + prior art assay test). LabCorp's brief argues that the claim covers a "law of nature" and is thus unpatentable. But their main argument, following dicta in Diehr, that the claim covers all practical uses of the scientific discovery, is false. Scientists and doctors are still free to discuss the scientific discovery and use it in ways that don't involve the assay test. This severely cripples science and engineering involving the discovery without a license, but it doesn't 100% eliminate it as defendant Metabolite claims. The problem is that this supposed holding of Diehr combined with the use of gratuitous elements makes the subject matter restrictions of 35 U.S.C. 101 an effective nullity. Having failed to understand the problem of gratuitous elements, Metabolite is left without a good argument and the United States Patent system is left without any effective restrictions on what kinds of subject matter may be patented.

The problem of gratuitous elements is not confined to subject matter patentability. They also occur in damage calculations. It is now common for patent drafters to add gratuitous elements to patent claims to make them cover larger markets. An example, given by W. David Westergard, is that an inventor thinks of a new hinge for a door. The patent drafter then drafts the claim (novel hinge + prior art door). The jury is thus fooled into thinking that the patentee should be awarded damages for the lost profits on doors instead of just the lost profits on hinges. Indeed, Jeffrey G. Sheldon in How To Write a Patent Application, the bible of patent drafting, recommends this strategy, giving the example of claiming a toaster when all that has been invented is the toaster thermostat. "When negotiating a license or arguing damages before a jury, it would be better to work from a high royalty base that includes the entire toaster oven."

This problem of gratuitous elements used to inflate patent damage awards is particularly severe in modern electronic devices that can contain hundreds of patented parts or software. It is one of the big motivations behind the damage reform provision in the 2005 Patent Act, which hopefully will be revived and enacted (with some recommended changes, which I will post in the future) in 2006.

LabCorp v. Metabolite briefs

Dennis Crouch has a good review of and links to the petitioner's brief and several amicus brief in LabCorp v. Metabolite. This case may impact the patentability of software and business methods. I have described in a paper how software came to be patentable in the United States, when our Supreme Court has held "mathematical algorithms" to be unpatentable subject matter.

Tuesday, December 27, 2005

The security and productivity of farms

Perhaps the two most important factors contributing to a neolithic, ancient, or medieval civilization were the productivity and security of farmland. Over these times (almost all of recorded history) productivity and security (largely, but by no means entirely, involving warfare techniques and organization) were probably the two main factors determining the ownership (or more generally control) of farmland and thus the structure of an agriculturally dominated society.

Which of these two factors were more important? Many traditional historians take it for granted that military organization (often determined by military technology) determined social structure as well as the success of a society. Thus, for example, the theory that the stirrup gave rise to feudalism. Some other historians or scientists who study history take it for granted that crop productivity, primarily determined by ecology and technology, was more important to the success of a civilization or to determining its political, legal, and economic institutions.

Neither view is correct. Farm productivity and farm security interact, and institutions are at least as important to determining that productivity and security as the reverse.

A few historians have started analyzing the interaction between crop productivity and security in a variety of detailed ways, an approach I think may shed quite a bit of light on history.

One common strategy of ancient warfare was to "devastate" enemy crops. Historian and viticulturalist Victor Davis Hanson has studied the vines, olive trees, and some grain varieties grown in ancient Greece and has shown that they could often withstand intentional destruction (burning, chopping, digging up, etc.) rather well. I further suspect that plants in most places and times were bred, not merely for their nutritional content, and not merely to withstand weeds and animal pests, but to withstand such assaults from human pests as well.

Furthermore, I hypothesize that the pattern of control or ownership of land, and thus property law (and political structure in general) will vary depending upon the interaction of agricultural productivity and security, and vice versa.

To flesh out this theory I will make some corollary "geostrategic" hypotheses about neolithic, ancient, classical, and medieval warfare:

* There are some economies of scale in protecting farmland. An obvious economy of scale is that the area (a good proxy measure for value) of farmland increases as the square of the length of boundary that must be guarded.

* There are some diseconomies of scale in protecting farmland. An important diseconomy of scale is that it becomes more difficult to coordinate ever larger armies (the knowledge problem familiar to Austrian economists) and to coordinate the tax collection needed to fund those armies.

* There is a tension between the optimal size of a farm for the application of organizational labor and technology and the optimal size for military protection. If security needs become too great, the two can become mismatched and farm productivity will fall. If this is not to occur some military coordination between landowners is needed (this may be feudal, or democratic/agrarian as in the classic Greek polis, or a wide variety of other kinds of coordination including the modern state).

* Geographic features can help protect farmland, allowing its size and organization to be optimized for productivity. Which geographic features are important depends on the scale on which farmland is defended. During many eras of history (from large-scale feudal coordination to the state) such coordination has occurred on a large scale. Thus, it may be no coincidence that two large islands which have been largely or entirely protected from invasion for hundreds of years, Japan and Britain, also had among the highest agricultural productivities per acre during that period as well as the greatest cultivation of even marginal arable lands. Italy's situation is similar being protected on one side by the Alps and three other sides by water. Italy and Japan, though often divided politically during this era, are long and thin, making disputed internal boundaries shorter. In some areas (such as the Low Countries) inhabitants went to great lengths to create water barriers between themselves and invading armies. Contrariwise, this theory predicts agricultural productivity will be lowest in unprotected continental regions. Indeed, interior continental regions easily reached by horse tended to be given over to much less productive nomadic grazing. Security constraints were probably what prevented any sort of crop from being grown.

Some of the inspiration for this theory comes from Adam Smith, in Book 3 of The Wealth of Nations. Smith pointed out that there was a large mismatch between land ownership patterns that provided the best incentives to productively use the land and laws derived from feudal protection needs. Under English law there were a variety of kinds of land ownership, called "estates." Smith advocated straight ownership called "fee simple" that allowed land to be divided among children, bought and sold, and used as collateral. The two now curious but formerly common kinds of estates Smith observed and criticized were "primogeniture," in which land could not be divided among children but had to be devised to the oldest male, and "fee tail," or restraints against transferring the property or using it as collateral. In the Middle Ages land ownership was bundled with the ability to protect the land. The law thus prevented foolish heirs from dividing up their land into portions too small to protected. These restraints also protected the tenants who actually worked the land.

Smith, living on an island well protected by the navy of a single state, observed that England was moving away from that kind of ownership and advocated getting rid of it altogether, pointing out its economic wastefulness. As evidence Smith cited large tracts of poorly cultivated or entirely uncultivated land in farms still under those feudal property law constraints. Furthermore, we have seen the importance of the ability to use land as collateral. Collateralization of land probably ocurred first on a large scale in late medieval Italy. This may be due to its greater adherence to the traditions of Roman law (in which land was divided equally among children and was freely transferable) as well as its relatively secure geography.

The crucial role of security for the history of farming may also shed light on the birth of agricultural in the first place. Hunter-gatherers were very knowledgeable about plants and animals, far more than the typical modern. It would not have taken a genius -- and there were many, as their brains were as large as ours -- to figure out that you can plant a seed into the ground and it will grow. There must have been, rather, some severe institutional constraints that prevented agriculture from arising in the first place. The basic problem is that somebody has to protect that seedling for several months from enemies, and then has to harvest it before the enemy (or simply a envious neighbor) does. Security and allocation of property rights between providers of security and providers of farm labor were the intractable problems that took vast amounts of trial and error as well as genius to solve in order for agriculture to take root.

A tamper evidence protocol from China

In "The Playdough Protocols" I described how ancient Sumerians used tamper evidence both in the form of physical seals and in the form of tamper evident numbers, in particular checksums. These are forerunners both of modern plastic sealing (used for evidence bags, in banking to store and transport cash and other valuables, to protect food from tampering, and so on) and modern cryptographic hash functions, whereby one can detect whether digital content has been altered.

Daniel Nagy has uncovered a more particular connection between ancient auditing techniques and modern cryptography. He writes how Chinese merchants, at least as far back as the 3rd century A.D., used remainders of division by prime numbers instead of checksums to ensure that nothing had been stolen from storage or cargo. The security of the Chinese system was based on what we still call the Chinese Remainder Theorem. The theorem is also used in some modern cryptographic systems based on the difficulty of factoring, and in particular the RSA scheme for decryption and digital signatures.

Thursday, December 22, 2005

Secure property titles and development

Some development economists such as Hernando de Soto and Craig Richardson have stressed the crucial role of property rights in building wealth within and developing beyond an agricultural economy. In particular they emphasize the importance of recorded titles that allow property to be reliably pledged as collateral. In the above reference Craig Richardson reports in particular about how the recent deprivation of property rights in Zimbabwe led to the collapse of that economy. His statistical analysis eliminates substantial contributions from other hypothesized causes of that collapse, such as the minor drought. Richardson cites the observations of contemporaries that despite the drought, dams in Zimbabwe remained full. Irrigated farmlands had not been planted and fertilized properly in the first place and irrigation equipment had often been looted. Richardson traces these symptoms to the lack of incentives to properly raise crops and lack of seasonal loans to fund planting, fertilization, and irrigation, both consequent of uncertain property titles.

The importance for development of being able to use property as collateral is confirmed by Western Europe's own experience, starting in the late medieval era, in developing wealth within the agricultural economy and using agricultural wealth to finance ventures beyond agriculture. During this period Western Europe, and in particular the city-states of Italy, developed a wide variety of new kinds of contracts that provided the legal foundations for business ventures, loans, insurance, and a wide variety of other structures. Insurance, for example, enabled Europeans to mount unprecedented overseas ventures of trading an empire-building. In de Soto's terminology, Western Europe coverted "dead capital" of agricultural land and other fixed wealth into the "live capital" of manufacturing and overseas ventures.

Many of these contracts were based on collateral clauses. For example, commenda contracts allowed an investor (who was "sleeping," like a creditor, and thus had limited liability like a creditor, but unlike a creditor would be paid a share of profits) to fund the purchase of ships and goods and other financing of trading voyages. As early as 1073, the recipient of a commenda investment pledged "if I do not observe everything just as is stated above, I, together with my heirs, then promise to give and to return to you and your heirs everything in the double, both capital and profit, [i.e. the capital and profit plus again as much as a penalty], out of my land and my house or out of anything I am known to have in this world." Simimlarly other kinds of business venture investments, loans, insurance, and a wide variety of other contracts used in the Italian city-states were usually underpinned by pledges of land, goods, or both.

During the late Middle Ages Europeans cities started developing municipal records for recording these "security interests" in land and chattels. These allowed future creditors to check and see whether goods or real estate were already pledged. Along with these developments came the commercial innovations that made the industrial revolution and subsequent wealth of the West possible.

In our era a wide variety of kinds of property would benefit from distributed property title databases that reduce dependence on particular government offices for the security of property titles.

Image: Instruments for surveying property boundaries, from ancient Rome. Courtesy Deutches Museum, Munich Germany.

The Justice Department vs. the United States Constitution

Two professors here at GWU, Orin Kerr and Daniel Solove have written on the legality of the President authorizing the ultra-secretive National Security Agency (NSA) to spy on U.S. citizens without getting warrants from the FISA court. For further updates check Volokh Conspiracy and Emergent Chaos.

For the President to authorize the NSA to bypass the courts and spy on citizens without a warrant is very dangerous and very illegal. We have spent most of the last century expending hundreds of thousands of lives and trillions of dollars to fight against dictatorships, and now we are accelerating down the entrance ramp to unchecked executive power ourselves.

The Justice Department argues that the President has what amounts to arbitrary powers in times of war or emergency. Here is some of what the founders of the United States wrote that flies in the face of the Justice Department's view of the law. What the founders wrote in our Constitution is, despite what the Justice Department, Bush, and Gonzales say, still the law of the land:

Article I gives Congress "all legislative power" including the right to declare war and "[t]o make rules for the government and regulation of the land and naval forces." Congress is entrusted with the basic war-making powers. It may through specific legislation instruct the executive branch, and the executive must "faithfully execute" these laws (Article II). To not faithfully execute the FISA statute that requires a court warrant for a wiretap, for example, is an impeachable offense against the Constitution. To fail to faithfully execute the Fourth Amendment, which requires a court warrant for conducting any search, is an impeachable offense against the Constitution.

"All legislative powers" means these powers are inalienable: Congress may not grant them wholesale to the executive branch. Congress could thus not in its 2001 war authorization instructing the President to use "all necessary and appropriate force" have thereby given the President powers arbitrarily to spy on United States citizens communicating overseas -- even if that is what Congress intended, which is highly doubtful. Rather, the President's powers to spy remain defined by the Congressional acts which specified FISA,including the PATRIOT Act. These acts (like the Constitution itself) require the executive branch -- that includes the NSA as well as the FBI and every other such agency -- to obtain a court warrant before spying on the communications of U.S. citizens, whether that communication is directed overseas or is purely domestic.

The very lame "process" of the President notifying a handful of House and Senate leaders about the existence of some vague wiretapping program, which cannot be further elucidated "for national security reasons," is no sort of effective check and balance and thus, not surprisingly, is not mentioned anywhere in the Constitution.

Furthermore, the Fourth Amendment to that Constitution expressly forbids searches and seizures without a court warrant, even if the Congress and the Executive both approve.

The utter necessity of checks and balances is well illustrated by what one of the main drafters of our Constitution, James Madison, said about them in Federalist #10. Madison thought that government, the ultimate in trusted third parties, should not be based on an actual particular party: “ambition must be made to counteract ambition. The interest of the man must be connected with the rights of the place," and thus "it is divide and arrange the several offices in such a manner as each may be a check on the other – that the private interests of every individual may be a sentinel on the public rights.”

President Reagan advised us when it came to dealing with power to "trust but verify." Madison too fought to protect the United States against dictatorship. If we are wise, we will follow the Constitution and protect ourselves from dictatorship as well. As another of our law professors, Jonathan Turley, has stated, the NSA by spying on American citizens without warrants is committing felonies, and the President by authorizing these acts is committing felonies. By law, the President ought to be impeached by the House, convicted by the Senate, and thus thrown from office. Furtheremore, those conducting these wiretaps at the NSA are felons who must under law be fired, prosecuted, and imprisoned.

But while we are "at war" (with Iraq, terrorists, drugs, and so on) a large portion of the populace, including talk radio demagogues and most of the current Republicans in Congress (with a few refreshing exceptions such as Senator Sununu) genuflect to the alpha male as if he were God and to top secret agencies as if they were God's messengers. Impeachment by a Republican House and Senate? Fat chance. Dream on.

Furthermore, impeachment and removal of Bush, would, however strongly it is compelled by the law, only address the latest symptoms, not the disease. What is really required is a rebirth of learning about the our Constitution and a reformation of the Justice Department and our attitudes towards it.

What the President and the NSA are doing is blatantly illegal in the opinion of practically every legal scholar knowledgeable about the original meaning of our Constitution, and indeed in the opinion of most legal scholars of any philosophical stripe outside of the Justice Department. Over the years the Justice Department has developed its own unique view of the world in which the executive branch "in times of emergency" (which could mean just about any time) has the arbitrary powers of a dictator. Indeed, the Justice Department has been arguing, often with success, for the doctrine that the executive has arbitrary emergency and wartime powers long before George W. Bush (and even long before George H.W. Bush).

The Justice Department has thus given lip service to "rule of law" while slowly scratching actual rule of law and the Constitution to shreds. George Bush and Alberto Gonzales are merely the latest mouthpieces of a Justice Department that has been destroying what the founders fought for in 1776 and debated and ratified in 1789 -- protection against unchecked government.

We must thus reform the Justice Department and our attitudes towards that Department. The Supreme Court should never treat Justice Department as a source of legal authority. It should impute to their briefs no more credibility than it imputes to anybody's else's brief. The Justice Department is just another party with an interest -- except that this interest happens to be aggrandizing to the executive branch arbitrary power over which the only remaining legal check is the Justice Department itself.

This is the Christmas season here in the United States, a season of the story of when God came down to Earth as the baby Jesus and angels sang about Peace on Earth. If we were ruled by God on earth, we would not need separation of powers with checks and balances. Madison wrote, "[i]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls would be necessary.” But we are not ruled by an omniscient and omni-beneficent deity, nor by angels: we are ruled by George Bush as advised by a Justice Department that has forgotten what the Constitution means. The Christmas infant when he grew up said to "render unto Caesar the things that are Caesar, and unto God the things that are God's." Our Caesar is, like the Caesars of old, trying to aggrandize himself with powers that could only wisely be entrusted to an all-beneficient God. We thus need separation of powers and checks and balances more than ever.

And we need the Justice Department to stop aggrandizing power to itself by misleading the President and the American people about the United States Constitution. There might be an excuse of naive reliance on bad advice to forgive the President for making the claims he is making, but professional lawyers entrusted with enforcing the federal laws should know better.

Tuesday, December 20, 2005

New Zealander challenges Amazon one-click patent

Caveat: As is with every post on this blog, this post is not legal advice. If you want to make, use, sell, offer to sell, challenge, or otherwise legally entangle yourself with Amazon's patent, consult a good patent laywer (I'm not even one of those quite yet either).

Peter Calveley from New Zealand has asked the United States Patent & Trademark Office to re-examine the validity of Amazon's infamous "one-click" patent. One of the claims he is going after is Claim 11 which reads as follows:

11. A method for ordering an item using a client system, the method comprising:

displaying information identifying the item and displaying an indication of a single action that is to be performed to order the identified item; and

in response to only the indicated single action being performed, sending to a server system a request to order the identified item

whereby the item is ordered independently of a shopping cart model and the order is fulfilled to complete a purchase of the item.

Calveley has made great use of the Wayback Machine to dig up old documents. Of particular interest is some of the old ecash(tm) documentation from DigiCash. It's of particular interest to me because way back when I worked for six months for DigiCash as a contractor.

Ecash was the first digital cash payment system to be deployed on the web. Ecash deployed cutting-edge cryptography, in particular the blind signature which was one of the earliest patents for what was basically a pure algorithm. I describe blind signatures here.

However, it's not the cryptography that's important here, but how ecash interacted with the web to order a product. The normal cycle of using ecash was as follows:

(1) Click on a link or button on a web page to place an order with a merchant;

(2) In response to this click the web server would (using a CGI script) start up the "shop" ecash software;

(3) That software would contact the ecash client to request a payment;

(4) The ecash client would pop up a screen to confirm a payment, and finally;

(5) The user would click a button on the pop-up to confirm the order, and the order would be executed (the file delivered, the wager made, or whatever).

This is a "two-click" process. However, ecash had another feature, which I personally only dimly remember, and never associated with the notorious one-click patent until now. But Calveley did make the link and has recovered the documentation for this feature. With this feature the user could alter step 4 to automate the payment. If a user trusted a merchant, he could configure the policy so that step 4 would not launch a pop-up, but would just go ahead and make the requested payment. The result was a one-click ordering process.

The combination of ecash automated payment policy with web ordering, which is at least strongly implied by the documentation Claveley has enearthed and almost surely was actually deployed and used in a one-click manner, reads on Amazon's claim 11 and some associated claims.

Calveley is the first to point out, as far as I know, that the automated payment policy setting of ecash, combined with a single click to order an item (e.g. to download a file or to make a wager), is a very good prior art reference which anticipates the Amazon one-click patent (or at least makes it even more blindingly obvious than we software engineers already thought it was).

If you have personal information or know of further documentation about this feature, or any other product or design prior to 1997 that used one-click ordering, both myself and Peter Claveley are greatly interested in collecting this information.

Also, Claveley's going forward with the re-examination is contingent upon him collecting enough donations to recoup the $2,500 USPTO fee for a patent re-examination. You can donate here.

Sunday, December 18, 2005

New book -- The Origins of Value

I recently found a delightful new book, The Origins of Value: The Financial Innovations That Created Modern Capital Markets, edited by Goetzmann and Rouwenhorst. Besides the wonderful pictures (it doubles as coffee-table book), it contains a variety of articles on the precursors and antecedents of modern trade in stocks, debt, and financial instruments. Each article is (co-)written by different noted authorities in the history of financial markets.

Just some of the highlights: tallies, chirographs, Chinese paper money (a kind of sad history paralleling the 20th century experience with government currencies), the Roman publicani, Fibonacci on present value, securitization of government debt in Venice and Genoa, the Dutch East India Company (VOC -- the first corporation whose stock was widely traded), a silly defense of John Law (making some noteworthy economic observations justifies coercing and defrauding millions?), and a perpetuity that financed a 17th-century Dutch dike and is still being paid today.

The book is biased towards finding antecedents of surface phenomena of modern capital markets, and thus is narrower than a good history of economic institutions would be. The importance of the legal idea of a corporation as a "person" is briefly noted, for example, but the many tricky legal issues this raises that must be solved before such an institution can become widely viable, the shortcomings of Roman law in this regard (despite the publicani, which are so poorly recorded in the historical record we lack many important details on their legal structure and operations) are not raised. Nor are contributions to corporate law of the Catholic Church, municipalities, and guilds in the Middle Ages (not to mention Western law schools, which first appeared then), long before Dutch East India Company, mentioned. Indeed, most of the important legal issues that must be solved to make modern capital markets possible are just not addressed, despite the vast documentary record of legal codes and decisions from Babylon, Rome, medieval Europe, and other places where such legal breakthroughs were made. Some important issues of trust and security are raised or at least hinted at, but are usually not explored in detail. The crucial role of accounting is given short shrift. There is not a lot of economic theory and it doesn't go much beyond standard financial economics, which may not provide a very good model many of the ancient, high transaction cost eras discussed.

These, however, are just grumbles about how reality always falls far short of the ideals one can envision. After all, the subtitle says "...Financial Innovations...", not accounting or legal or in general institutional innovations that made modern capital markets possible. And I don't know of any single book out there that explores so many episodes of ancient, medieval, and renaissance financial history in such a detailed and colorful way.

Copyright v. the blogosphere?

"The blogosphere has developed a set of copyright norms in an area where there is very little enforcement. These norms about the use of copyrighted material are probably at odds with existing copyright law." So writes Daniel Solove, a professor at my law school, More here (via Emergent Chaos). The same was true of the original Internet itself (e-mail, ftp, and so on), and then of the web. There would be no useful Internet and no useful web if it the copyright that copyright law says exists in almost every human-generated packet of bits was actually tracked and enforced. Copyright exists by default, simply from the human act of creating a web page, a photo, some music, and so on. Generally, under current copyright law once a work is created it may not be copied without the express permission of the copyright owner. However, if this standard were actually applied to the Internet transaction costs would be prohibitive and the Internet would not usefully exist.

Fortunately, at least some of the massive copying done by the Internet has been deemed to come under "implied consent." By sending e-mail or publishing your web page, you have given implied consent for intermediating servers and users to have their software make copies so that users can view your work. Unless you put up a "robots.txt" file that forbids it, presumably Google and other search engines are free to copy, search, and cache your web pages, without asking you despite your copyright in them. Contrary to standard copyright law, web searching like many other features of the Internet does not require the express permission of the copyright owner. To be protected against copying the author must give notice that he desires such protection, rather than the starting with the presumption that nothing can be copied. This results in radically lower transaction costs that make e-mail, the web, and web searching possible. But when an industry fights back (e.g. the music industry against P2P) the presumptions made by emerging Internet norms can be put in jeopardy, Solove points out.

The idea that copyright exists by default in a work is a rather recent one, especially in the United States. Traditionally, unless one registered the work with a copyright office, or at least labeled the work as "copyright", it was presumed that the work was placed, like almost all human communication has traditionally been placed, in the public domain. Copyright offices are now online and works mostly digital, so that registration can be made far easier. It's often easy to give notice to software regarding the status of works as with the "robots.txt" system. Under Internet norms works such as e-mails, web pages, and blog posts are not protected against copying by default. Thus, this older version of copyright law, where works are not copyrighted until they are registered or at least labeled as such (this time in a computer-readable way) is what we should return to in the Internet era, legally as well as de facto.

RIM asks Supreme Court to hear BlackBerry case

Research In Motion, Ltd. of Canada, which lost a very big (both in terms of dollars and legal precedent) case to NTP, Inc., over NTP's patent for a distributed e-mail system, has now asked the United States Supreme Court to hear the case.

The big legal issue is how to determine patent infringement when distributed systems (for example, Internet protocols) span borders.

Specifically, the issue under United States patent law is whether a system claim (or method claim) of a United States patent can be infringed when some features of the working system are located outside United States territory, but most the system elements or method steps are located within the United States, as are users. In this case a part of the system (and at least one of the steps of the method) corresponds to RIM's relay located in Canada; the other elements or steps (BlackBerries and the operations performed on them) and the users at issue are located within the United States. Another issue is whether RIM's infringement was direct or contributory infringement. A third issue is whether any international law is implicated.

If only some elements or steps need to be in a country to infringe a patent in that country, the operator of a patented protocol spanning two or more countries might be sued for infringing the same patent in two or more countries. There is a grave danger that the patent holder could recover far more damages than it would otherwise be entitled to. To avoid this, the international law principle of comity might have to be invoked to determine which country has jurisdiction. On the other hand, if all the elements or steps must be in a single country in order to infringe a patent, this leaves a loophole whereby makers of distributed systems can ignore patents as long as some of the features are located in different countries.

When the Federal Circuit, which has jurisdiction over patent appeals in U.S. patent infringement cases, first heard the case it said that the system claim was indeed directly infringed. It then reheard the case and decided that the method claim was not infringed. Their opinion was based on precedent from two older cases. The first case held that a system claim for a navigation system used in international waters was infringed because it was controlled from the United States. The second case held that a manufacturing process claim was not infringed if one of the steps was performed in Japan.

As a result of the dubious analogy of these two precedents (there are no binding cases more on-point) the Federal Circuit has somewhat illogically distinguished between a claim for a distributed algorithm and the same claim restyled as a distributed system. My own opinion is that, until a treaty is signed to say otherwise, all the elements and steps should have to be within the United States in order to infringe a United States patent. This leaves a loophole in patent law, but that's better than the injustices and international law issues that are raised by courts reaching across borders to find infringement in remote Internet servers. Furthermore, if what RIM did is considered infringement it should classified as contributory not direct infringement. RIM's customers may be "using" the patent "within the United States," but RIM itself is not. RIM would however be contributing to the infringement by providing the BlackBerries and running their e-mail relay and thus would still be liable. In other circumstances with no contributory infningement, however, it would be a grave injustice to find direct infringement in the United States because one was simply operating one element or step of the United States patent overseas.

The case before the Supreme Couret is now denoted Research In Motion, Ltd. v. NTP, Inc., Supreme Court No. 05-763, opinion below, NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282 (Fed. Cir. 2005).

Read more information on this case here.

Tuesday, December 13, 2005

U.S. patent reform dead for this year

Dennis Crouch reports that, while some of its provisions might be snuck into appropriations bills, the Patent Act of 2005 itself is history. I predict that most of its provisions will be revived in 2006.

Wednesday, December 07, 2005

Another proposed amendment

Here's my own tentative proposal (besides my variations on Buchanan's proposals). It may be even more important and interesting than Buchanan's (as important as those are); why is left as an exercise for the reader. I call it the Jurisdictional Choice Amendment.

"No law shall infringe an arbitration clause in a contract, nor shall original jurisdiction of said arbitrator over any area of civil law of the United States or any unit of government therein specified in said clause be denied. The courts of the United States and of any unit of government therein shall defer to the findings of fact of said arbitrator unless clearly erroneous."

What three constitutional amendments would you like to see?

What are the top three amendments you would like to see to the United States Constitution? James Buchanan proposes three. I think something quite like the latter two are already implied by broad clauses in our Constitution, but in the coming era of "conservative" Footnote Four justices, it would be good to reify them as specific textual amendments. Here's my take on Buchanan's three proposed amendments:

1. Fiscal responsibility -- requires a super-majority vote by the Congress to run a federal budget deficit. This is a good idea, but since it would provide political cover for Congress to raise taxes, I'd add a requirement of a super-majority to raise taxes, which can be found in some state constitutions.

2. Non-discriminatory politics -- Based on Hayek's proposed amendment -- “Congress shall make no law authorizing government to take any discriminatory measures of coercion.” Actually, this is the original meaning of both the General Welfare and Equal Protection Clauses, but it would be nice to add more specificity so that our courts would actually enforce them. I think the biggest issue here is that the Equal Protection Clause is currently treated as applying various levels of scrutiny to a handful of "suspect" (race) "intermediate" (gender), and "rationality with teeth" (age, sexual orientation, etc.) classifications. What should happen is that any classification made in any law, from "violent felons" to "infants", whether it be "employees" or "employers", ought to be examined under at least the Lawrence "rationality with teeth" standard. In other words, every law ought to be independently reviewable by the courts with respect to any of the distinctions it makes between different types of people, as to whether those distinctions are rationally related to a legitimate government purpose.

3. I'm not clear on what Buchanan's third proposal is, but I'm guessing it's encapsulated by "the natural liberty to enter into and exit from agreements." During the era between the Allgeyer and Nebbia cases (1897-1934) the United States Supreme Court recognized a right along these lines, sometimes called "freedom of contract." Modern cases from Griswold to Lawrence have established rights in more intimate relationships. As I suggested in my previous post, I'm greatly in favor of freedomm of contract in principle, but it's difficult to specify what it would involve in practice. There are detailed common law precedents and statutes (the Uniform Commercical Code as enacted in the states) governing contract law. Under these precedents and statutes contracts are often found to be unenforceable, as has always been the case at common law. I propose instead the following amendment: "No right of contract or property shall be infringed with the purpose or effect of unduly burdening choice in intimate relationships or medical services, or the control of parent over child." It still needs work, and we might like to add to or subtract from the list of protected categories, but I think it's a big improvement over the vague "freedom of contract." This kind of protection is already implied (IMHO) by substantive due process cases from Allgeyer and Pierce v. Society of Sisters to Griswold and Casey. However, with justices hostile to this libertarian tradition, we may soon have an urgent need to reify these rights in the form of specific constitutional amendments.

Relationship rights and the United States Supreme Court

A couple years ago I wrote this piece which links to a number of cases in which the United States Supreme Court has protected important rights of relationship. Post-New Deal courts often make a phony distinction between "economic" relationships (which post-New Deal U.S. courts do not generally deem worthy of protection, despite many expressed and implied clauses in the U.S. Constitution to the contrary) and political and personal relationships, which are often and quite properly well-protected. An unprejudiced reading of the United States Constitution indicates that it was intended to strongly protect economic relationships as well as political and personal ones.

Personal and political relationships are not strongly protected unless related economic relationships are strongly protected. (Thus, for example, the right to use contraceptives under Griswold is phony if it does not include the right make contracts regarding contraceptives, for example the right of a drugstore to sell and a consumer to buy condoms). Furthermore, many relationships and statuses labeled "economic" have strong personal aspects. For example, owning and living in a house usually includes important personal memories, privacy interests, and community ties. I will discuss this topic more in the future.

Monday, December 05, 2005

The negative rights debate continues

My debate with Mike Huben on negative rights and the United States Constitution continues. My basic thesis is that the substantive rights defined in the Bill of Rights and the Civil War Amendments, while often defined very broadly ("rights...retained by the people," "life, liberty, and property," "privileges and immunities," "equal protection of the laws," etc.) include only negative, and never positive, substantive rights.

I have since made a second claim: that it continues to be the case that, when broadly defining basic human rights, positive rights are a very bad idea. This is illustrated by our experience with some broad clauses in the constitutions of some States and some foreign nations defining positive rights (such as a "right to health care" or "right to education"). These clauses are naive and inherently vague, have led to endless debate, and have harmed rather than helped the economy in general and the poor in particular.