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

Thursday, June 20, 2019

The Bizarre World of Hypothetical viz. Fictional "Prophetic Examples" in Patents

The Stanford Legal Aggregate has just published an article by Professor Lisa Larrimore Ouellette titled Science Fiction: Fictitious Experiments in Patents.

According to present law in force, as unbelievable as it sounds, patents can be based on fictitious "prophetic examples" and can rely on completely hypothetical results, which do not even have to be identified as such in patent documents.

Fordham Law News in Fictitious Data, Real Patents by Nate Svogun writes:

"While government law enforcement agencies and regulatory bodies don't take kindly to false or misleading information, the U.S. Patent and Trademark Office allows pie-in-the-sky claims when it comes to the potential uses of a particular patent....

The Patent and Trademark Office (PTO) and the courts explicitly permit made-up experiments and fictional data in patents.

Indeed, contemporary patent laws and court decisions have created a windfall world for patent holders, as patent grants have gone far beyond the protections imagined for inventors and their discoveries by the American Founders.

The US Constitution provides:

"Article I Section 8. Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Well, let us ask, what in our modern era is now a patentable "discovery"?

As written at Legal Aggregate:

"(This article was first published in Science on June 14, 2019.) Although it may surprise scientists, one can receive a patent in many jurisdictions without implementing an invention in practice and demonstrating that it works as expected. Instead, inventors applying for patents are allowed to include predicted experimental methods and results, known as prophetic examples, […]"

The American Association for the Advancement of Science (AAAS) Eureka Alert! News Release of June 13, 2019 titled Clarifying the fictional science of prophetic patents: Labels needed? writes:

"In a Policy Forum, Janet Freilich and Lisa Larrimore Ouellette highlight the common practice of including "prophetic" examples in patents - particularly in the fields of chemistry and biology, where patents routinely describe the outcomes of experiments that have not been conducted - and suggest labels in patents, to better call out such examples." [emphasis added by Law Pundit]

We quote Freilich & Ouellette in USPTO should require prophetic examples to be clearly labeled to avoid confusion as posted June 18, 2019 by Lisa Larrimore Ouellette to Written Description:

"Prophetic examples may be familiar to patent drafters, but scientists and engineers who learn about them generally describe them as bizarre, and even some patent scholars are unfamiliar with the practice."

Our opinion is that it is high time in patent law -- and it has been high time for decades -- to reduce the granting of patents to discoveries actually made and implemented and not to the patenting of ideas or future expected results, which has always been forbidden by law in principle. Prophetic examples are ideas, not discoveries, and should play zero role in the granting of patents.

Monday, June 10, 2019

The Donald Trump Presidency: Expectations and Results in Our Age of Disruption in a Rapidly Changing World

The current President of the United States, Donald John Trump, is not everyone’s cup of tea. That is in the nature of the business of politics. Every leader in every nation has adherents and detractors.

Since we are non-partisan, owe allegiance to no political party, and are center-oriented in our politics, we support every elected President of the United States of America -- as the nation's head man. Our assessment of a President thus turns on general results, not on selected political issues. We agree on some things and disagree on others. How can it be otherwise?

In our view, President Donald J. Trump is a wheeler-dealer type by personality and background -- a very much results-oriented man of "expediency", a word well defined in this context at Google's dictionary entry for expediency:
"the quality of being convenient and practical despite possibly being improper or immoral; convenience.
"an act of political expediency"
We expect such behavior from Trump, and we are seldom disappointed. But we do not judge Trump by his "acts" of expediency. Only results count for us.

Accordingly, we ask: Does it make sense to make our political or other expectations a standard of judgment about what is happening in political, legal, social, religious or economic spheres?

Is the fulfillment of expectations what MAKES a President successful or not? Our expectations? How many "expected" the current economic boom under Trump? Is expectation relevant to an assessment of results?

"Expectations" may not be the best determinant of "happiness" regarding daily political or other events, because then a great deal of unavoidable "disappointment" is pre-programmed. Indeed, many mainstream journalists spend a lot of time complaining that their expectations have been dashed. But that is not the true bottom line for evaluating events at the Presidential level.

If we expect something and it is not fulfilled -- and our happiness depends upon expectation fulfillment -- we are disappointed and unhappy. Many expectations stay unfulfilled, so that this is a recipe for unhappiness and disappointment.

If our expectations are fulfilled -- how frequently does that happen? be honest with yourself -- we are “happy”. Our happiness then depends on expectation fulfillment --  "Just like I imagined it!" Again, just how often does that happen?

We thus unnecessarily put our happiness at the mercy of events over which we often have little control to make things meet our expectations. So, why do it?

Why should we make expectations a factor?

Expectation fulfillment is generally a short-term matter that quickly fades into the background when long-term matters are at issue. Daily political discussion TODAY is filled with opinions about largely ephemeral events that TOMORROW correspond to the statement, "There is nothing as old as yesterday's news".

Let us look, for example, at Trump's predecessor. Consider the question of "How did President Barack Obama's Presidency over two terms correspond with (y)our expectations?" Frankly, not many people know a quick answer, because many political expectations are not a long-term thing.

President Obama's Presidency should thus be judged not by short-term political expectations and their fulfillment or non-fulfillment, but rather by what was accomplished or not accomplished, long-term, during Obama's administration.

One example of achievement is Obamacare, which has neither been repealed nor replaced by the Republicans, in spite of nearly 10 years of trying. The necessary Congressional majorities have simply not been found among the nation's elected representatives. How does that mesh with (y)our expectations? It all depends, does it not? Is Obamacare working? Is that the standard of judgment? Polls show that about 51% of Americans currently approve of Obamacare. As a result, it has become a virtual political non-issue -- why aggravate the majority of voters? In the meantime, other issues have risen to the surface. The world is a sea of problems. How are they being solved?

In the long run, Donald Trump's tenure as President of the United States should similarly be judged by his achievements, and not by whether his actions correspond to our preconceptions and expectations, where we could be wrong.

Much of mainstream media has still to learn that lesson. To their credit, even the arch-liberal Guardian in the United Kingdom already admits to some achievements by the Trump administration as they write in How Trump has changed America in two years:
""This is the greatest economy in the history of our country," Donald Trump told reporters last year. Two years into his presidency he has plenty to brag about but also some big problems. Many of his own making.

Unemployment is close to levels unseen since the first moon landing. It ticked up last month but even that rise came as more workers came off the sidelines and started looking for work. So far about 5m jobs have been created under Trump.

It is pretty dubious to claim presidents "create" jobs but they all take the credit when things are good; unsurprisingly Trump is no exception. The current recovery clearly began under the previous president, Barack Obama. Even with the unarguably impressive improvements under Trump, he has a way to go before he can fulfil his promise of being "the greatest jobs president that God ever created"."
We must thus view preconceived expectations with a grain of salt. On the one hand, the "left" expected Trump's demise long ago. The predominantly left-oriented mainstream news media and strongly negative crystal ball opinion columnists failed miserably in predicting the future of the Trump administration, so much so, that not only is Trump's demise unlikely, but Trump's re-election is as likely it was for his predecessors, given current poll results.

Similarly, the "right" establishment may have expected Trump to ultimately follow their line of thinking. But Trump in fact does what HE wants, if he can. So, he is no friend of the G.O.P. establishment. Rather, by most counts, Trumpism is winning and not establishment Republican factions. See the article by Perry Bacon Jr. at FiveThirtyEight at The Five Wings of the Republican Party.

Political developments worldwide, especially "populism" -- which is a powerful force at the root of Trump's ascendancy to the Presidency -- can surely be better understood if we recognize that the world has a need to adjust its political expectations to conform to the present realities of our planet and its inhabitants.

The establishment in many areas of activity has failed to do this, and so we should not be surprised that populists like Trump are surfacing, and are favoring different solutions than have been tried previously by political mainstreamers.

Politics is not the only area of human activity in need of substantial reform and modernization. Trump says it is time to "drain the swamp". Figuratively, it means that things have to be "shaken", in the sense that Aristotle told us that "even the trees must be shaken by the wind to grow".

Without pressure to do otherwise, humankind gets lazy and stagnates into various kinds of decadence, everywhere apparent.

The Trump political situation can be compared with the problems of modernity confronting establishment Archaeology and related disciplines such as Oriental viz. Biblical Studies, which remain stubbornly backward (of course, in part by the retrograde nature of their study), and out-of-date, because they are not sufficiently pushed from outside to get out of their cozy rut.

The "history industry" is dominated by academics who continue doing what they have always done, story-booking how they think the past was, based on often tenuous authority-based rather than evidence-based "opinions", as presented, e.g. in conclusory documentary films, as if no alternative "stories" existed and as if all questions had been resolved, which is by no means the case.

Hence, the history industry has gotten many things wrong historically viz. pre-historically. The entire field of ancient studies, historical and prehistorical, is marked by what we view to be a glaring absence of analytical critical thinking and the lack of sober consideration of alternative explanatory solutions.

What are needed in the historical disciplines are disruptive people and ideas to "shake" the establishment out of its slumber.

Even in modern technology and media, We Live in an Age of Disruption. Just imagine then how rusty things are in the other "older" arts and sciences.

In a similar vein, Trump is a political disruptive "shaker" in politics.

Trump needs to be disruptive in a technologically-dominated digital age, where many things need to be changed per se and indeed must be changed due to the advance of expanded knowledge in our modern era.

Representative democracy has also lagged behind the times via inconceivable "government shutdowns" or, as in the UK, through people taking direct voter control of the political process, by Brexit referendum. If governments were properly doing their job, such political excesses would be unnecessary.

The U.S. Congress, e.g., has been hopelessly ineffectual in recent years, trying to play President rather than doing their proper legislative role, and has in the eyes of the populace deservedly suffered great losses of face as an institution.

Nevertheless, U.S. Senators and Members of the House of Representatives persist on being mired in a locked-in partisan yesterday, often basking in their own personal glories, rather than doing their jobs effectively. The voters elect representatives to pass legislation for the good of their constituents. Witch-hunting, on the other hand, is a power not based anywhere in the Constitution.

In any case, it is not expectations,
but results down the road
that reveal the successes and failures of policy.

Right now, Trumpism is winning….
like it or not.
Just look at the economy.

The rest remains to be seen.

Saturday, June 08, 2019

Stanford and Michigan Lead Division I Learfield IMG NACDA College Directors’ Cup June 6, 2019 Standings for the 2018-2019 Athletic Season

As a Stanford Law School graduate together with his better half holding a degree from the University of Michigan, we are pleased to see the newly posted  Division I Learfield IMG College Directors’ Cup Standings (National Assocation of Collegiate Directors of Athletics - NACDA) where Stanford University and the University of Michigan lead the pack.

As noted at NACDA.com:

"Trophy Presentation for the 2018-19 Learfield IMG College Directors' Cup winners will take place in conjunction with the 2019 NACDA Convention on Wednesday, June 12 at the World Center Marriott Resort in Orlando, Florida during the Directors' Cup Awards Luncheon."

Thursday, June 06, 2019

Native America: Ancient Migration Between Siberia and North America Based on New DNA Data Analysis: From the Arctic to the U.S. Southwest

The United States of America (USA) and the nation-states of North America, Central America, and South America are all countries whose populations trace their origins back to migrants, or if one prefers, immigrants viz. emigrants. That is a paradoxical issue of fact in our own present migrant-issue-dominated era.

Here is how it all began....

Smithsonian Magazine has an article by Brian Handwerk titled "Ancient DNA Reveals Complex Story of Human Migration Between Siberia and North America: Two studies greatly increase the amount of information we have about the peoples who first populated North America—from the Arctic to the Southwest U.S."

Attached to the link by the Smithsonian:
Read more: https://www.smithsonianmag.com/science-nature/ancient-dna-reveals-complex-story-human-migration-between-siberia-and-north-america-180972356/#mdMUGpRtvgehwOZ1.99
Give the gift of Smithsonian magazine for only $12! http://bit.ly/1cGUiGv
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Tuesday, June 04, 2019

A Coming G.O.P. Apocalypse is Foretold by David Brooks, Scrying Into His Orbuculum at The New York Times

David Brooks at the New York Times writes marvelous fact-based articles, but can nevertheless go astray in his political conclusions, based on the facts that he himself so cogently presents. Take politics, demographics and the generation gap as an example.

Using a crystal ball here is difficult because our political, social, economic and legal world is variegated and complex. Events do not follow clear rules of simple logic. Otherwise, any bright analytical thinker could make our current world understandable to us -- and -- could easily also foretell the political future.

Alas, it is not so.
The world of diversity, as Brooks writes, is approaching. But no one really knows how it will manifest itself politically in the future.
After all, as an example, who could predict the coming of the era of Trump?

In his most recent article, Brooks, scrying into his orbuculum, foretells a Coming G.O.P. Apocalypse -- basing that conclusion on very clear demographic data.

It is a nice article, foretelling the political future in an increasingly developing Age of Diversity. Such diversity is everywhere apparent, which arguably bides ill for the Republican Party of the United States of America. So where is the hitch?

I am here reminded of the old adage, whose origin is apparently unknown, that "many young people find it difficult to believe that they will ever have enough sex and that they will ultimately vote Republican, but such is the case".

As "younger generations" get older, their possibilities, responsibilities (especially responsibilities !), financial status, ideas, alliances and voting behavior may tend to change to suit their standing in life. Personal retention of and the sustainable security of what one "has" and "has achieved" will become ever more important.

Consider, for example, that the wealth of the world is "inherited" by new generations, on average, about every 33 years (our estimate of the era of a generation, borrowing from Sir Isaac Newton's Chronology).

This passing on of real and personal property from one generation to the next arguably has a massive impact politically on many of the inheritors.

We would suggest that "haves" invariably vote like "haves" (i.e. people of property and means) down the road of life, whereas the "have nots" vote like "have nots" who have less to secure, unless they are pulling rank on groups they view to be even more lower-ranked socially, economically and/or politically.

In the space of generations, inheritance and the passage of wealth surely change the politics of the political parties to which one swears allegiance, putting the pressure of change on political party platforms. We see this process in action today -- around the world -- as "populism" becomes the prevailing force of political change and restructure. The world is adjusting to substantial changes in its social, legal, economic, political and territorial infrastructure.

The mainstream "establishment" G.O.P may, as Brooks writes, indeed face difficult times in the future due to the powerful vector of voter demographics, but the present-day somewhat laid back Democratic Party also has problems, as its heroes, leaders and Presidential candidates are relatively on in years.

Ruth Bader Ginsburg, who enjoys unsurpassed cult status among her liberal admirers, was born in 1933. Congressional House of Representatives Speaker Nancy Pelosi was born in 1940. Politically "independent" former Senator and Presidential candidate Bernie Sanders was born in 1941. Former U.S. Vice-President and Presidential candidate Joe Biden was born in 1942. Only former President Barack Obama, born in 1961, falls to any degree out of the "oldie" mold. Perennial contender and former Secretary of State Hillary Clinton, born in 1947, is at the beginning of her 70's but remains a potential "enabler".

We have nothing against AGE per se, being a 1946 birth ourselves, but finding the voice of the future for the Democratic Party and for the voting populace among these unquestionably experienced but "other-generation" role models is difficult, given a generation gap electorate and the party's young base age-wise.

Indeed, the Democrats currently function as the virtual "status quo" party, riding on a platform of the (liberal) "good old days" and championing the doing of what the Dems have always done, while ignoring the trend of the times, which requires new faces and new solutions to mankind's many problems.

U.S. President Donald Trump, although born in 1946 (as were also Presidents Bill Clinton and George W. Bush) is by contrast in his political actions functioning like a "young-thinking" revolutionary who DEMANDS the "CHANGE" that Barack Obama envisioned, but struggled to achieve. Indeed, there is no doubt that Trump is in fact achieving change on a massive scale, regardless of whether one is for the direction that change is taking, or against it. CHANGE is happening.

Accordingly, there will always be separate political camps for liberals and conservatives, but the face of the corresponding political parties as such, have recently changed and will continue to change, due to the demands of our increasingly technological era.

As a consequence, American political parties will likely become more like the political parties in Germany, where the German conservative party of Angela Merkel would be seen by many in America as having socialist tendencies. It just depends on how one defines these things.

One example here is the young public in the USA who were very favorable to German Chancellor Angela Merkel and her virtually "liberal" keynote speech at the recently held Harvard University commencement. The labels of liberal or conservative are simply not helpful in this context in trying to understand the political allegiances, social problems and controversial world matters at issue.

In other words, we believe that the entire political spectrum will shift overall in the future, whereby political views based on the individual age of the voters will continue to be highly differentiated -- with the older-becoming citizens tending increasingly to favor political platforms on major issues that reflect their own personal standing in life, as also the lives of their families.

The major political parties may not prevail under their present names, who knows, but the split of societies into two major political camps will prevail. So our opinion.

Hat tip to CaryGEE.

Monday, June 03, 2019

The Beginnings of Human Social Organization in the Group Exchange of Small Talk Information: A Positive Look at Mainstream News Media as the Gossip Experts ala Yuval Noah Harari

We have been very critical of mainstream news media in our past postings, especially in their choice and treatment of "news" items, many of which we would put into the category of "small talk" or "gossip", an interactive form of communication that some say accounts for as much as 75% of daily human speech.

We quote Horst Müller in Spektrum der Wissenschaft 10/1998, page 108 in "Klatsch und Tratsch. Wie der Mensch zur Sprache fand.", a book review of  Sebastian Vogel's translation of Robin Dunbar's Grooming, Gossip and the Evolution of Language.:
"Nach Dunbar handeln etwa 75 Prozent des täglichen Gesprächs-aufkommens eines Menschen von "Klatsch und Tratsch", also Inhalten, die sich im wesentlichen mit der sozialen Interaktion von echten oder vermeintlichen Gruppenmitgliedern beschäftigen."
 Translation of that phrase by Google Translate:
"According to Dunbar, about 75 percent of a person's daily conversations are about 'gossip,' [viz. "small talk"] meaning content that essentially deals with the social interaction of real or supposed group members." [text in brackets added by LawPundit]
Up to now, we have been of the opinion that the mass of humans prefers also to read banal "blah blah" material. Indeed, we still think that to be the case, but there may be a reason for humankind's preferences.

We have been reconsidering the matter in view of a very interesting journalistic piece by Peter Reinhart, deputy editor-in-chief of the Trierischer Volksfreund titled "Der Anfang von allem" in German.

Reinart's remarks in the Volksfround Forum focus on the presumed beginnings of complex human social organization. Such beginnings are arguably found in interactive communication via the group exchange of information, especially news of the general "goings-on" of fellow humanity, i.e. who is doing what, where, and with whom.  In short, the banal "news" of everyday life. This can be in the form of daily conversation, and, of course, via written material.

Reinhart writes that people are most interested in the doings of other people, especially those not too close to home and in higher social strata, i.e. "out there" in the bigger world. That interest has to do with survival optimization. Knowing "what is doing" is essential knowledge.

The focus is essentially on what has traditionally been called "gossip" (German "Klatsch und Tratsch") and "small talk", an information exchange that in earlier days took place on e.g. the market square, and, according to Reinhart, is an active form of communication that is at the root of modern societal organization in all of its forms. This is definitely a hypothesis worth thinking about.

Reinhart writes at  the Volksfreund Forum as excerpted below (one can translate the quoted text into English or another language of choice at Google Translate):
"Nichts interessiert den Menschen so sehr wie der Mensch. Was der nette Nachbar treibt, ist und bleibt privat. Öffentlich verhandelt werden von alters her die Heldentaten der Reichen, Schönen und Berühmten, ihr Leben, ihr Sterben. Die Irrungen und Wirrungen, die Höhenflüge und Abstürze, die Eskapaden und Skandale. Geld. Macht. Sex.
Nachrichten aus der Abteilung Klatsch und Tratsch. Die einen mögen sie, die anderen mögen sie nicht. Aber wir brauchen sie, erstaunlich genug, alle. Wie kommt’s?

Rückblende, vor siebzigtausend Jahren: Der Homo sapiens ist ein Herdentier und die Kooperation in der Gruppe entscheidend für das Überleben und die Fortpflanzung, sagt der bestsellernde Universalhistoriker Yuval Noah Harari. Dazu reicht es nicht aus, zu wissen, wo sich Löwen und Büffel aufhalten. Es ist viel wichtiger zu wissen, wer in der Gruppe wen nicht leiden kann, wer mit wem schläft, wer ehrlich ist und wer andere beklaut. [link added by LawPundit]

Mit Hilfe von verlässlichen Informationen über zuverlässige Mitmenschen konnten die Sapiens ihre Gruppen stark erweitern, enger miteinander zusammenarbeiten und komplexere Formen der Zusammenarbeit entwickeln, bis hin zu modernen Staaten."
Is Harari right in his fundamental hypothesis? Was interactive "small talk" group communication a significant factor in the evolution of human society and is it integral to developing modern complex forms of interaction and cooperation?

We are still thinking about it.