"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Tuesday, June 21, 2016

USPTO Inter Partes Review Upheld by US Supreme Court in Cuozzo Speed Technologies, LLC v. Lee

Good patent law news from the U.S. Supreme Court!

SCOTUSblog reports that the United States Supreme Court in Cuozzo Speed Technologies, LLC v. Lee has unanimously upheld USPTO Inter Partes Review, part of the America Invents Act.

Download the no-nonsense slip opinion written by Justice Breyer at
15-446 Cuozzo Speed Technologies, LLC v. Lee (06/20/2016)
in which Breyer writes to start:
"The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., creates a process called “inter partes review.”  That  review process allows a third party to ask the U. S. Patent and Trademark Office to reexamine the claims in an already-issued patent and to cancel any claim that the agency finds to be unpatentable in light of prior art.  See §102 (requiring “novel[ty]”); §103 (disqualifying claims that are “obvious”)."
Inter partes review enables a fast-track challenge of patentability and has proven to be a valuable tool to counteract the patenting excesses of the USPTO, which have contributed to serious problems in the patent law system.

Net Neutrality Upheld by DC Circuit Court in Ruling that Broadband Internet Can Be Treated as a Utility by the FCC

We are a bit late on this but we wanted to see the mainstream reaction.

Cecelia Kang reports for the New York Times that Court Backs Rules Treating Internet as Utility, Not Luxury. An image caption there quotes Tom Wheeler, chairman of the Federal Communications Commission (FCC), as saying that "the court’s ruling would “ensure the internet remains open, now and in the future.”"

The "divided" 2-1 decision by the D.C. Circuit Court in U.S. Telecom Association v. FCC is a no-brainer for many Internet savvy persons.

Earned applause goes out to the majority judges in the case, David S. Tatel and Sri Sinivasan, while dissenter Senior Circuit Judge Stephen F. Williams (Harvard Law 1961, age 79) should perhaps consider retirement, having written an unnecessarily lengthy dissenting-in-part opinion that shows little understanding of the modern Internet and its pervasive influence on daily life. Williams writes:
"I agree with the majority that the Commission’s  reclassification of broadband internet as a telecommunications service may not run afoul of any statutory dictate in the Telecommunications Act.  But in changing its interpretation, the Commission failed to meet the modest requirements of Fox Television.  

Fox states that an agency switching policy must as always “show that there are good reasons for the new policy.”  556 U.S. at 515.  But in special circumstances more is required."
Anyone who does not see "good reasons" for upholding net neutrality just does not get it and should not be judging these kinds of modern technology cases. Williams ignored 4 million people who wrote to the FCC to demand an open internet. MILLIONS do not want Internet to suffer the same ignominious fate as cable television. That seems like at least one "good reason" to us.

See the article at the Seattle Times by Troy Wolverton of The Mercury News in Commentary: Net neutrality ruling a huge victory for public, who writes; 
"Handing a big victory to everyday people, an appeals court last week upheld the Federal Communications Commission’s net-neutrality rules.

The decision likely guarantees that the internet won’t go the route of cable television, and that we will be the ones to decide what sites and services we use online — not Comcast or AT&T.

The ruling “is a tremendous and decisive win for all Americans,” Sarah J. Morris, senior policy counsel at the Open Technology Institute, a digital-rights advocacy group, said in a statement. “The court’s decision recognizes the value of an open platform over which all voices have a space and all ideas can flourish.”
But the ruling — which will most likely survive an expected appeal — is a big win for everyday citizens in another way. It shows the power that people can have when they get involved in government and the political process. In an unusual outpouring, nearly 4 million people wrote the FCC demanding an open internet. Without that public pressure, regulators wouldn’t have put in place the strong net-neutrality rules that the court just upheld."
In view of the above, it is untenable that Williams in his dissenting conclusion (quoted below) calls the FCC rules an "unreasoned patchwork":
"The ultimate irony of the Commission’s unreasoned patchwork is that, refusing to inquire into competitive conditions, it shunts broadband service onto the legal track suited to natural monopolies."
To add insult to injury, Williams defines an "open" Internet
as a legal track to "natural" monopoly?
Who is Williams kidding?

Jonathan H. Adler at the Volokh Conspiracy in Divided D.C. Circuit upholds FCC ‘net neutrality’ rule, has a posting which unfortunately trails off to discuss marginal points and is of little value for understanding the main issues.

Hat tip to CaryGEE.

Tuesday, June 14, 2016

Is LinkedIn Acquisition by Microsoft Partly Guided By Offshore Profit Parking and Tax-Avoidance Strategies: Borrowing to Beat the Fed

This is an immediate follow-up on our previous two postings:
David Kocieniewski at Bloomberg now reports Why Microsoft, With $100 Billion, Wants a Loan for LinkedIn, a purchase loan which would permit Microsoft to avoid billions of dollars in taxes and keep its offshore parked profits out of the reach of the U.S. federal government.

How many years now has the U.S. Congress been writing legislation?
Over 200 years...?

And they still can not master how to write simple, proper tax laws that do not enable, indeed, that prohibit such large-scale massive tax avoidance?
It is really quite remarkable.

Note: the fact is that Congressional representatives are much more busy these days in NOT doing things and bragging about it, like not filling federal judicial vacancies (for political reasons).

That Congress has a job to do has not yet reached many Congressional ears.

It is symptomatic of a currently broken system of government, led by an ever-weaker chief executive, who should instead simply appoint nominated judges to office whenever Congress refuses to fulfill its Constitutional duties as regards their orderly and timely confirmation process.

Not helpful thus far is also a timid U.S. Supreme Court that is not up to the task of even enforcing its own rightful Justice succession.

The Microsoft LinkedIn Acquisition and Adjusted-Ebitda Earnings Numbers Excluding Cost of Stock-Based Compensation as an Expense

This is an immediate follow-up on our previous posting on Microsoft's Deal to Acquire LinkedIn : Blessing or Bane?

Andrew Ross Sorkin at "Deal Book" at the News York Times examines One Unspoken Reason Behind the LinkedIn Sale relating to adjusted-Ebitda earnings numbers that exclude the cost of stock-based compensation as an expense for purposes of calculating earnings, a practice strongly criticized e.g. by investors such as Warren Buffet.

Microsoft's Deal to Acquire LinkedIn : Blessing or Bane?

Can LinkedIn prosper under Microsoft rule?

At Forbes, Mark Rogowsky asks: For Microsoft, LinkedIn Deals Looks Awfully Familiar But Is It Familiarly Awful?.

Microsoft has not been very successful in acquiring companies in the past so it is a very legitimate question as to whether LinkedIn will change that picture.

We think that the reason for Microsoft's past failures with acquired companies is to be found in a navel-gazing "company culture" that presumably has arisen out of its near-monopoly market position with the former DOS and now Windows operating systems ("OS").

Microsoft's dominant OS position has seemingly created a climate in which the company and its staff are used to doing what THEY want to do and not necessarily what the users want (or need).

The terrible Metro interface -- only mildly corrected in Windows 10 -- is one example of this phenomenon, marked by squares "off"-colored to meet a skewed concept of "designer art" having no apparent rhyme or organized reason for being. Color for the sake of color is not design. At least various types of programs could have been "color-coded". "Orange" for .exe, e.g., etc. Or "sky blue" for browsers. Nothing of the kind has happened. It is just a haphazard conglomeration of rather dreary shades, and that from a company with billions at their disposal. It all looks adolescent. Who can explain it?

That kind of "we do what we want" arrogance may work in developing and selling Windows and Office, but it works only because of a near-monopoly dominance where users are more or less forced to take what they are given.

Such a unilateral "me-oriented" corporate philosophy does not bide well, however, for acquisitions of companies engaged in real market competition.

The Nokia acquisition is a good example, culminating in Microsoft offering "Windows" phones that THEY (Microsoft) wanted to sell to promote THEIR "Metro" OS interface rather than offering phones for their OWN quality on the basis of what THE USERS needed and wanted to buy (in competitive markets).

We see this as well in the case of Microsoft acquisition Skype -- the graphic interface of which, however, has gotten worse since Microsoft acquired it, with staff and programmers implementing changes that few users want or need, rather than offering useful improvements FOR THE USER.

It is difficult to see how Microsoft's "take it or leave it" approach towards users will be beneficial to LinkedIn, which, rather, needs to upscale its presentation to meet the demands of the modern social media world.

Sunday, June 05, 2016

Camille Paglia at Salon on the Upcoming U.S. Presidential Election and Northeastern Paleoamerican Archaeology and Anthropology

There may be a more intelligent woman and better media writer than Camille Paglia out there in F. Scott Fitzgerald's dark fields of the Republic somewhere, but we have not found her yet.

Camille's recent takes on the American political scene and the U.S. Presidential election in particular are marvelous creations of the best journalistic art. We have to ask her: is Gatsby Trump?

See her newest contribution at Salon.com in Zombie time at campaign Hillary: Camille Paglia on Trump’s real strength and Clinton’s fatal sleepwalking. If the Clintons used the lead photograph of that article to try to get elected, it would be all over but the shouting.

There is also some excellent discussion via commenter Sam Atwood of Nashville and Camille about the archaeological and anthropological scene as well, both academic fields suffering from the same dusty malaise that marks the political and legal culture: as Camille so unmistakeably describes it:

"a lack of speculative skill and larger vision".

Saturday, June 04, 2016

Users Pushed to Facebook Messenger Via Disabling of Mobile Web App Messaging

You may have confronted this already at Facebook.
At TechCrunch, Devin Coldewey reports that
Facebook is disabling messaging in its mobile web app to push people to Messenger.

The Map of the Starry Sky at Magdalenenberg: Fundamental and Surely Wrong Assumptions of Archaeology are Challenged by One of Their Own

Our last posting on the Bruniquel Cave "Ring" Construction in France has proven popular so we follow it with reference to an astronomical decipherment of the tumulus Magdalenenberg in Germany by Allard Mees, a "mainstream" archaeologist from Mainz, the "Gutenberg City", and home of the invention of printing, where Mees is on the staff of the Romano-Germanic Central Museum (Mainz), Leibniz Research Institute for Archaeology.

Mees has stuck his neck out by now also claiming, as we have claimed for years, that the mound builders in erecting their mounds and tumuli may have relied on astronomical parameters in prehistoric viz. ancient times.

Magdalenenberg is located near Villingen-Schwenningen in Baden-Württemberg, Germany and is the largest tumulus from the Hallstatt period in Central Europe. The GPS coordinates from various sources are:
48° 2′ 39.48″ N, 8° 26′ 37.319″ E viz. 48.0443 N  8.4437 E
Latitude: 48.044167 N | Longitude: 8.44361 E.

The aged wheels of academic Archaeology and Astronomy, as also Archaeoastronomy, are very rusty and turn very slowly, if at all. The astronomical decipherment by Mees, originally scheduled for publication in the year 2007, did not appear until the year 2011. See Allard Mees, Der Sternenhimmel vom Magdalenenberg [The ]. Das Fürstengrab bei Villingen-Schwenningen – ein Kalenderwerk der Hallstattzeit, Sonderdruck aus dem Jahrbuch des Römisch-Germanisches Zentralmuseum [web.rgzm.de] 54, Mainz 2007 (erschienen 2011), S. 217-264.

Even today, five to ten years later, little about the work of Mees can be found online, perhaps because the establishment "mainstream" archaeological and astronomical communities virtually ignore any analysis alleging a connection between archaeological sites and prehistorical astronomical usage & function.

Mees as a person makes a brilliant impression on us and is of course surely well aware of the academic "stone wall" that he faces due to his astronomical conclusions about such an important archaeological site.

We see that he has apparently remained undauted, and made an English-language presentation of his analysis on November 14, 2013 at the Society of Antiquaries in London, a speech which was recorded and is found on youtube and which we embed below, including the following proviso: 

 'The Celtic Moon-Based Culture and the Burial Mound of Magdalenenberg', Allard Mees, FSA. This lecture took place as part of the programme for Ordinary Meetings of Fellows at the Society of Antiquaries of London. With permission from the speaker, the Society recorded this lecture and made it available on YouTube and on its website at www.sal.org.uk. All rights reserved. [link added]

It was at that very same podium that we ourselves spoke in 2008, giving a presentation about the Phaistos Disk that has remained our most popular posting ever at the Ancient World Blog: The Phaistos Disc: An Ancient Enigma Solved : Two Corroborative Old Elamite Scripts are Ancient Greek. Presented 31 October 2008 at the INTERNATIONAL CONFERENCE ON THE PHAISTOS DISK on the 100th anniversary of its discovery in 1908 by the Italian archaeologist Luigi Pernier. Conference location: Society of Antiquaries, London, Burlington House, Piccadilly. Organization and sponsorship: Minerva, the International Review of Ancient Art & Archaeology, Jerome M. Eisenberg, Ph.D., editor.

Mees analyzed the archaeological findings at Magdalenenberg in the previously cited Der Sternenhimmel vom Magdalenenberg [The Sky of Stars Represented at Magdalenenberg]. Das Fürstengrab bei Villingen-Schwenningen – ein Kalenderwerk der Hallstattzeit.

In that article, Mees notes that the positions of burials in the tumulus correspond to stars of the heavens, a phenomenon about which we have been writing about for years in showing that the ancients in the hermetic tradition mapped the stars of the sky on Earth, "as above, so below" in the geographic orientational placing of their earthworks and mounds (also those made of shells), burial sites, petroglyphs and other human constructions, as explained at megaliths.net.

Mees concludes that the following groups of stars are represented at Magdalenenberg: Ursa Minor, Draco, Ursa Major, Boötes, Corona Borealis, Serpens Caput, Hercules, Lyra, Sagitta, Cygnus, Delphinus, Cepheus and Cassiopeia.

As Mees notes, stars selected to represent specific sky sections have varied over eras and it can not always be said with certainty which stars the ancients used for grouping. However, the brightest stars are prominent and have the same positions, regardless of how the stars were grouped in ancient days. In other words, if we say "the stars of Ursa Major", those stars are identifiable, even if the ancients did not use exactly the same stars for portrayal.

To reduce the controversial nature of his astronomically-focused presentation, Mees -- understandably -- tries to draw a connection to astronomy in Greece and the Ancient Near East, an effort that might be superfluous, barring other findings that such a specific connection actually existed.

The fact is, as our research has shown for decades, quite sophisticated astronomical observation existed in northern Europe long before Magdalenenberg and preceded ancient viz. classical Greek culture, so that reference to the Greeks by no means establishes provenance of astronomy.

In any case, what the article by Mees means, and it is significant, is that younger generations are and will increasingly be focusing on the astronomical aspects of man's prehistoric and ancient past, aspects that present and previous generations of archaeologists and astronomers have by-and-large ignored -- wrongly so.