Taking risks

I got an e-mail from a head hunter looking for a patent attorney, yesterday.  I've been looking for a job as a patent attorney for a long time.  This job looked like a fit, though it would have meant moving to Virginia. A few years ago I would have applied for it.

This time I did not.  I have developed this dream that I am going to become a content creator, that I am going to write novels and comedy, act, improvise, do standup, sing, and do calligraphy.

So far, I have never made money doing any of these things.  My father, who paid for law school, would not have approved.   He liked my being a patent attorney.  It was one of those small satisfactions that I had in my relationship with him that he approved of my academic performance and my career choice.  Otherwise he was a pretty dour, distant, critical person, who was difficult to relate to.

Perhaps I would not have had the courage to say no to this headhunter if I had not had a improv workshop with David Razowsky [ http://www.davidrazowsky.com/improvisacting/Welcome.html ] this week and if he had not said right into my face that he had been doing this for 35 years and I was a strong improvisor.   He told me to celebrate that.

I sort of froze, like a deer in the headlights.  I wasn't expecting such a comment.  He had been yelling at me before.  I should have thanked him, but I was stunned.

So I said no to the head hunter, not that I would necessarily have gotten the job anyway.  I've been failing to get jobs I applied for for a long time now. Still, I wonder if I have become a bit like Jack from "Jack and the Beanstalk" who traded a cow for a handful of magic beans.  Jack was exceptionally lucky that the beans turned out to be truly magic.  By all rights they shouldn't have been.  

Let's hope that  I have at least a fraction of Jack's luck.

Aaron Swarz

This Aaron Swarz thing is really eating at me.

This was a youthful, non-violent, first offender committing an act of civil disobedience, for no personal gain, out of idealism.  He committed suicide when an overzealous federal prosecutor would not plea bargain down from seeking a sentence of 50 years -- and he was isolated from the activist community, which had been supporting him in his proposed activities.

Granted, the value of the copyrighted material he proposed to publish was large, but similar white collar crimes in others, others who profited from their actions, resulted in much lesser sentences.

The Enron people got 25 years or so, and one of them may get out with 14

http://sentencing.typepad.com/sentencing_law_and_policy/enron_sentencing/

Raj Rajaratnam, who did super huge scale insider trading, got 11 years

http://en.wikipedia.org/wiki/Raj_Rajaratnam

We need to have better control and standardization rather than unbridled prosecutorial discretion.

Anyway, if you, like me, are bothered by the Aaron Swarz prosecution, there is a petition going around.

http://act.demandprogress.org/act/thanks_sen/?referring_akid=a8778509.669022.11IWU1&source=auto-e

Also, Aaron reminds me of my own son, who is a Stallmanite.

linkedin bounced my essay about WCC (too long), so I'm putting it here

OK, so I suffer from diarrhea of the fingers.

This would not fit in the description of what I was doing at WCC


I started out thinking I wanted to retrain in biology.  I took two semesters of biology.  My next move was supposed to be to take Anatomy and Physiology.  I decided that I could not waste a single additional precious brain cell on memorizing body parts, which struck me as the most deadly boring possible activity.  My favorite part of biology was cellular respiration, which was the most similar to the work I had already been doing in patent law.

Then I went to chemistry, which was an improvement over biology, but the course was fairly rinky dink and the part I liked best was the part that dealt with the physics that was most close to my father; which brought me back to why I studied physics in the first place: my father was a famous physicist.

So I switched over to 2 semesters of electrical engineering.  Immediately, I felt much more at home.  These were the kind of people I went to college with and the kind of topics I loved studying.

I concluded that I had not made a mistake in college by studying physics, computers, and electrical engineering.  This was really the area I loved and love, much better than biology and chemistry.  That was a relief, knowing that I did not make a mistake back then.  I think one of the things that dominates your thinking, when you're in your fifties, was "Did I make a mistake in my earlier choices?"  NO. I didn't.  Physics was the right major.  Thank you, God.

Anyway, then, on a lark, I auditioned for X-factor in May of 2012.  I went to Providence Rhode Island.  There were 7,000 people there.  I got through two rounds of auditions, which meant there were only a few hundred people left.  That was May 11, 2012.  

The third round was a video tape that was sent to Los Angeles for review by the show's producers.  I was told that if I was going to get on TV, in front of the celebrity judges, I would hear back by June 27.

That time period coincided perfectly with the first summer term of Westchester Community College.  I dropped everything and took acting and voice for five weeks as a full time student.

I didn't get called back.

But the idea was planted.  I like performing.  I don't like sitting in front of stacks of paper reading technical information with no contact with people and no opportunity to actually see any physical products.

Sexism in IP law

On April 26, 2013, I attended an event called the "Fashion Law Institute."  This even was timed to coincide with world IP day, and was co-sponsored by NYIPLA and AIPLA at Fordham Law School.  I don't normally do fashion law, but I went, because it sounded interesting.

Speakers included attorneys, a law professor, and fashion designers, and was situated in a delightful atrium, with a free bar and finger food.  If you did not want CLE credit, you did not have to pay anything.  Such a deal!

I had somehow thought that the copyright law had been reformed so that fashion designs could now be copyrighted.  I was mistaken.  They still can't be.  

There was a heart wrenching story there of an independent fashion designer who designed what was clearly an innovative and never before seen collar on a dress, posted it on Facebook, and had it ripped off by big name labels immediately.

Another speaker, an attorney, spoke of being able to protect copyright in photos of dresses & therefore sue those producing knock-offs based on their photos of their products -- when the dresses themselves were not protectable.

Another speaker had gotten a utility patent on a novel structure for a girdle and had gotten a multi-million dollar settlement against an infringer.

On the whole, though, the feeling was a bit dismal that designers could not protect their original designs.  Design patents would take too long, given that a design was probably only useful for a single season.

Moreover, designers were depressed that they would graduate from top notch schools and find that their new employers were not interested in their designs, but only in knocking off the designs of others.

As I was listening to this, I remembered my days back at Kenyon and Kenyon, doing litigation support for the great cookie litigation.   This was a litigation between Proctor and Gamble as patentee, and Nabisco, Keebler and Frito-Lay as defendants.   It concerned a patent on cookies.

It was hornbook law that recipes for the preparation of food could not be patented.  The patentees there got around that, by using a smoke screen of elaborate machines to measure texture of the cookies and elaborate calculations on measurements taken by the machines, so that the Examiner reading the patent did not suspect that it was actually a recipe.  It looked so very high tech.

So sitting there, looking at all these clothing designers, who were primarily women -- and thinking of those who create recipes, most of whom are likely also women -- I had an abrupt realization that there is something fundamentally sexist about the intellectual property law of this country.  Creative people in traditionally female fields are denied protection for their inventions.  

This seems to be a way of disenfranchising women and denying us access to the benefits of Intellectual Property --- another way that men rig the system to keep women in poverty: barefoot, pregnant behind the plough.

Interestingly, we were informed that other countries do not have the same law as we do.  Fashion designs are protectable in many other countries, such as the European Union and China.  

Here we are running about telling the world that IP is *so* important.  Yet, in this area, which nevertheless represents a substantial industry, we are the rogues, allowing designs to be stolen freely.

Why?

This seems like supreme hypocrisy on our part.

And, as I said before, profoundly sexist.

We learned that there is copyright legislation being considered that would allow fashion designs to be the subject of copyright in the USA.

I hope the readers, if there are any such, will contact their Congress Critters -- as my ex husband used to call them -- in support of such legislation.

Health Savings Accounts

For people who have health insurance plans with a high deductible, the tax code and/or regulations provide the possibility of a Health Savings Account (HSA), to which one can make tax deductible contributions for the purpose of covering health expenses not covered by insurance.

The problem here is that the contribution limit for an HSA is 3250, while the deductible for my insurance from the New York State Bar Association is $5000.

The contribution limit should be the same as my deductible.

CLS Bank v. Alice Corporation

CLS Bank v. Alice Corporation ("Alice")

If you have been reading this blog, you might have noticed that I was very critical of the Mayo v. Prometheus ("Mayo") case, see  http://annebarschall.blogspot.com/2012/05/mayo-v-prometheus.html

Aside from finding the reasoning defective in that opinion, I would characterize it as follows.  If

▪   the claim recites a known method of measuring a response of a natural system, and

▪   the only invention is that a measurement taken in accordance with the method is within a new range of values

then the invention is not patentable subject matter.  I would appreciate comments about this interpretation.

For the moment, though, going with that interpretation, I am a bit surprised at those who feel that the Alice case necessarily needs to be governed by the Mayo case.  Granted, it was unfortunate that Mayo was not mentioned in Alice.  Still, it's not clear to me why it absolutely should have been.

Alice seems to be squarely within the purview of Bilski, a case about a business method, not at all in same category as Mayo, which deals with natural systems.  The mere fact that both cases are within the domain of patentable subject matter, does not mean that the later one need necessarily be governed by the earlier one.

A court might easily conclude that business methods are not mere abstract ideas or natural laws, and that, therefore, they are not subject to the same kind of scrutiny as was applied in Mayo.

If there is a known apparatus, such as a computer, and the invention lies in applying the computer to a business method, to me this seems very different from applying the computer to measuring a response of a natural system.

In any case, I like the way the federal circuit analyzed the Alice case already -- and fervently hope that the “Supremes” leave it just the way it is.

What is wrong with Gottshalk v Benson

I have the feeling that people are unlikely to read my entire brief from Bilski.  Therefore I am excerpting here just the part that criticizes Gottshalk v Benson, so that people can find it more easily.

GOTTSHALK V. BENSON[X]

This seminal case in the field of patentable subject matter was decided with an opinion written by Justice Douglas.  When the undersigned was first learning about patent law, she heard patent attorneys sniping rather cynically about Justice Douglas, opining that the approach of Justice Douglas towards patents was “The only valid patent is one that has not been reviewed by this court.”  Perhaps attorneys did not say so in court papers, but they said so to each other.

The Benson case contains a number of statements that invite clarification or repudiation. 

Anxiety about the idea of patent monopoly manifests, e.g. “The end use may (1) vary from the operation of a train to verification of drivers’ licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus…” 408 U.S. at 68

Some of this language seems to contradict the opinion’s later conclusion that the algorithm had no practical application outside a digital computer. 

Additionally, the anxiety expressed here about breadth of claims really has nothing to do with subject matter.  If one imagines hypothetically the first inventor of the carpentry nail, for instance, such an inventor could get a patent that would cover a nail, whether that nail were to be used in constructing a house, constructing a boat, scratching the surface of a soft material, or cleaning dirt out of a crevice.  This is the nature of a patent, to give the inventor broad scope of protection – and, yet, if one were to apply the reasoning of the above paragraph, one might strike down a patent on such an original mechanical device out of fear of its scope.  This would defeat the whole purpose of the patent law.

Another statement in Benson is “A digital computer, as distinguished from an analog computer, is that which operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand.” 409 U.S. at 65.[xi] Perhaps some computer scientists thought this was  true at the time, but experts in artificial intelligence and neurology no longer believe that computers think like people, at least when using the type of program that was at issue in this case[xii].  People may have in their heads some illusion that they are thinking the way that computers process data, but this is not at all a complete explanation of the mysterious workings of the human brain.

Another statement from Benson is:

We have, however, made clear from the start that we deal with a program only for digital computers… The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.  409 U.S. 71-72

These assertions recognize that the invention can only be practically used in a computer and then jump to the conclusion that the entire algorithm is pre-empted.   This reasoning, operating in conjunction with the belief stated earlier that computers think like people, gives rise to the disturbing implication that software related inventions include human thought, “pre-empting the entire algorithm” — that if computers think like people, then a claim reading on a computer processing reads on a person thinking.  Such a leap of logic would be a clear fallacy.  If one starts from a premise that an airplane flies like a bird, one should not therefore conclude that a claim reading on an airplane flying would read on a bird flying. 

Moreover, there remains the inconsistency between the one statement saying that the claim reads on a person and the other statement that says the reasoning is motivated by the fact that the algorithm has no substantial application outside a computer.  Indeed, no art having apparently been cited, it would appear that no one was motivated to attempt this rather cumbersome representation of decimal numbers prior to the arrival of computer storage with its binary nature.

Another sub-optimal aspect of this opinion is a failure to make a distinction between two very different claims.  Claim 13[xiii] could conceivably have read on a human working with head and hand.  Claim 8[xiv], on the other hand, recited the use of a shift register.  A shift register is a piece of electronic equipment that can only be used with other electronic equipment, such as sources of power, electronic data signals, and clock signals.  A shift register absolutely and categorically cannot be used by a human’s naked hand.  This is physically impossible.  The failure of Benson’s insufficiently considered opinion to recognize the distinction  between these two claims has given rise to much later confusion.

There seems to be a prejudice against electronic devices in both Benson and Morse.  Patent attorneys, with their scientific training, have studied Newtonian mechanics[xv] together with Maxwell’s Equations[xvi] regarding electricity and magnetism in the same physics courses with the same physics professors.  They have seen, in quantum mechanics, how subatomic wave/particles — surrounded mostly by empty space — cooperate to create classical mechanics, electricity, magnetism, and radiation — allowing one form of physical phenomenon to be transformed into another: matter into energy and energy into matter[xvii].  Those thus trained have no philosophical rubric with which to distinguish electrical and mechanical devices one from the other logically, rendering the distinctions between the two categories from the point of view of patentable subject matter unjustifiable.

Endnotes:

[x] Gottshalk v. Benson, 409 U.S. 63, 172 U.S.P.Q. (BNA) 673,  (1972)

[xi] The aspect of computer software that looks like mathematics, namely its source code, belies the fact that upon compilation and execution that software actually becomes a configuration of a hardware device. see e.g. “Dissent of Commissioner Hersey” to the report of the National Commission on Ne Technological Uses of Copyrighted Works” at Ch. 3 (CONTU) (1978) http://digital-law-online.info/CONTU/contu14.html.

[xii] cf  M. Minski, “Why People Think Computers Can’t”, (MIT, Cambridge, 7/6/2005)) http://aleph0.clarku.edu/~jbreecher/public/2005_Can_Computers_Think/Minsky-WhyPeopleThinkComputersCant.pdf  (Describing how early computer programs were quite different from human thought and how researchers are trying to make them closer);  J. Bryner, “Greatest Mysteries: How Does the Brain Work?” (Live Science, Au., 2, 2007)  http://www.livescience.com/strangenews/070802_gm_brain.html (explaining that scientists still do not know how the brain works, because of the complexity of neurons, so it would be difficult to conclude that binary electronic circuits such as are found in a computer actually work “like” the brain)

[xiii] “A data processing method for converting binary coded decimal number representations into binary number representations comprising the steps of—

“(1) testing each binary digit position i , beginning with the least significant binary digit position, of the most significant decimal digit representation for a binary ‘0’ or a binary ‘1’;

“(2) if a binary ‘0’ is detected, repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;

“(3) if a binary ‘1’ is detected, adding a binary ‘1’at the (i+1)th and (i+3)th least significant binary digit positions of the next lesser significant decimal digit representation, and repeating step (1) for the next least significant binary digit position of said most significant decimal digit representation;

“(4) upon exhausting the binary digit positions of said most significant decimal digit representation, repeating steps (1) through (3) for the next lesser significant decimal digit representation as modified by the previous execution of steps (1) through (3); and

“(5) repeating steps (1) through (4) until the second least significant decimal digit representation has been so processed.” 409 U.S. at 74

[xiv] “The method of converting signals from binary coded decimal form into binary which comprises the steps of—

“(1) storing the binary coded decimal signals in a reentrant shift register,

“(2) shifting the signals to the right by at least three places, until there is a binary ‘1’ in the second position of said register,

“(3) masking out said binary ‘1’ in said second position of said register,

“(4) adding a binary ‘1’ to the first position of said register,

“(5) shifting the signals to the left by two positions,

”(6) adding a ‘1’ to said first position, and

“(7) shifting the signals to the right by at least three positions in preparation for a succeeding binary ‘1’ in the second position of said register.” 409 U.S. at 73-74

[xv] see, e.g. I. Newton, De motu corporum in gyrum (1684); I. Newton, I Newton, Philosophiae Naturalis Principia Mathematica (1687)

[xvi] In electromagnetism, Maxwell's equations are a set of four partial differential equations that describe the properties of the electric and magnetic fields and relate them to their sources, charge density and current density. These equations are used to show that light is an electromagnetic wave. Individually, the equations are known as Gauss's law, Gauss's law for magnetism, Faraday's law of induction, and Ampère's law with Maxwell's correction.

These four equations, together with the Lorentz force law are the complete set of laws of classical electromagnetism. The Lorentz force law itself was actually derived by Maxwell under the name of "Equation for Electromotive Force" and was one of an earlier set of eight Maxwell's equations.  “Maxwell's equations,” http://en.wikipedia.org/wiki/Maxwell%27s_equations (18 February 2009, at 01:59)

[xvii] In the immortal prose of Albert Einstein E=mc²