Join the Genographic Project – National Geographic IBM Waitt Family Foundation

We urge everyone to join
The Genographic Project
(a research partnership of National Geographic and IBM,
supported by The Waitt Family Foundation (of “Gateway Computers“).

Dear Readers,

One of our main interests is the ancient history of mankind, especially in terms of the impact of that history – real or imagined – on current events. Consider the Middle East, for example, without that history. It would be a much different place than what we see today. Unfortunately, the inhabitants of that region of the Earth, and thus also the rest of the world, are all victims of events which took place thousands of years before us. And these historical events are selectively chosen and often inaccurately portrayed. After all, who were the Jews and Palestinians in 10000 BC, and who occupied Israel in 100000 BC? Potentially, the Holy Land is the cradle for all modern humanity, and if so, it belongs to everyone.

We live in a world marked internationally by hatred, violence, war and now the threat of nuclear war, all of which are senseless developments when one considers that all men and women on this planet are closely related genetically, differing from one another minimally.

Political history may separate men and nations, but genetic history unites them. Genetically seen, the difference between a Christian, Jew, Hindu, Buddhist or Muslim is small. The “big” difference exists primarily in the imaginations of men, but not in actual physical reality.

The only way to limit the senseless circle of international violence is to educate the masses about their true heritage and the close genetic relationship between all human beings. God did not create Christians, Jews, Hindus, Buddhists or Muslims. Rather, God created only human beings, with no religious affiliation. Religion is man’s invention, not God’s.

The National Geographic – in a joint project with IBM and the Waitt Family Foundation – is currently in the process of conducting The Genographic Project, “a landmark study of the human journey“. As written by the National Geographic about The Tree of Humanity:

We were born on the African savanna. Humanity is rooted there…. At some point we left our African cradle and colonized the world. Yet the saga of what must have been our greatest epic journeys has lain untold for ages. A new explorer, however, thinks it is possible to now tell that story….

One by one, the outlines of epic migrations are being sketched…. So a map is emerging, but it is a map with much terra incognita [unknown terrain]. To chart more accurately this formative stage of human history, we need to expand the pool of genetic samples available to science.

In other words, to tell the story of ancient human migration on our planet accurately, The Genographic Project needs more DNA data, your DNA data. As the National Geographic writes:

Public participation is critical to the project’s success. By purchasing a Genographic Project Public Participation Kit [the price of ca. $125 per kit is far below what labs generally charge for such a DNA analysis], you may discover something about your own genetic past as well. You have an ancient story encoded in your genes, too…. Your results … will indicate … the … genetic markers [your] ancestors bequeathed you thousands of years ago, which chart your remote ancestors’ migratory wanderings and indicate from which branch you hang on the global family tree. And if you choose to add your results to the research database, your profile will help fill out that greater tree, better articulating its profusion of twigs and branches.”

Hence, we urge everyone to join the National Geographic / IBM / Waitt Family Foundation Genographic Project. And urge your friends to join as well.

The Real "Original" Meaning of the US Constitution

This is definitely a book which US Supreme Court Justice Scalia and other Constitutional originalists should read very carefully. Perhaps things were “originally” somewhat different than many an originalist has thus far claimed.

Calvin H. Johnson, first a friend and fellow student at Stanford Law School, then a fellow colleague at Paul Weiss et al., and now Andrews & Kurth Centennial Professor of Law at The University of Texas School of Law, has written a most interesting book recently published by the Cambridge University Press as Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution:

Righteous Anger at the Wicked States is a history of why the U.S. Constitution was adopted. The most pressing need was to allow the federal government to tax to pay off the debts of the common defense. The Constitution went far beyond the immediate fiscal needs, however, to create a supreme, three-part national government The book argues that the Founders’ anger at the states for their recurring breaches of duty to the united cause explains both critical steps and the driving impetus for the revolution..”

H. Jefferson Powell, Professor of Law at Duke Law School writes:

It may seem hard to imagine that anything new could be said about the relative weights of federalism and nationalism in the formation of the Constitution. Calvin Johnson has defeated that expectation by writing an intellectually honest, incredibly erudite description of the Constitution as an intensely nationalist instrument, crafted almost from first to last for the express and understood purpose of a supreme and extremely powerful central government. Especially important is Johnson’s identification of Madison as in truth the architect of this nationalist Constitution and Madison’s subsequent endorsement of states rights as a turn away from constitutional original meaning. Johnson has put the historical ball back in the anti-nationalist court.”

Cal will maintain a discussion blog about the book and the subjects it covers at
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

NSL National Security Letters (administrative subpoenas of business records under the amended US Patriot Act)

On March 9, 2006, President Bush signed into law the USA PATRIOT Improvement and Reauthorization Act.

National Security Letters (NSL) under the US Patriot Act are legally interesting as broad grants of power to the government to issue administrative subpoenas for business records. What is the scope of the NSL power?

Charles Doyle has provided us with a legal background for this question in his March 17, 2006 article National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, Congressional Research Service (CRS) Report RL33320, Library of Congress (LOC), Washington D.C. An abridged version of that article is also available as CRS Report RS22406.

Doyle summarizes the amended and reauthorized US PATRIOT ACT with respect to the NSL as follows:

Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect.

The USA PATRIOT Improvement and Reauthorization Act (H.R. 3199), P.L. 109-177, and its companion P.L. 109-178, amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater Congressional oversight.

The text of the five provisions – section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)); sections 626 and 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u, 1681v); section 2709 of title 18 of the United States Code; and section 802 of the National Security Act (50 U.S.C. 436) – in their amended form have been appended.

This report is available abridged – without footnotes, appendices, and most of the citations to authority – as CRS Report RS22406, National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments, by Charles Doyle.

Doyle’s chart at page 15 of the original report and page 5 of the abridged report provides the following information in substance concerning the differences between the five NSL Sections of the amended and reauthorized US Patriot Act:

18 U.S.C. 2709 (applicable to communications providers and covering the identified customer’s name, address, length of service, and billing info, as relevant to an investigation to protect against international terrorism or espionage)

12 U.S.C. 3414 (applicable to financial institutions and covering identified customer financial records as sought for foreign counterintelligence purposes to protect against international terrorism or espionage)

15 U.S.C. 1681u (applicable to consumer credit agencies and covering identified consumer’s name, address, former address, place and former place of employment, and name and address of consumer’s banks, as sought for an investigation to protect against international terrorism or espionage)

15 U.S.C. 1681v (applicable to consumer credit agencies and covering all information relating to an identified consumer and necessary for the agency’s investigation, activities, or analysis)

50 U.S.C. 436 (applicable to financial institutions, consumer credit agencies, and travel agencies and covering all financial information relating to consenting, identified employee, as necessary to conduct a law enforcement investigation, counterintelligence inquiry or security determination).

The powers granted are broad and accompanied by a gag order (duty of non-disclosure), although the act as amended now expressly provides for judicial review and for limitations on the non-disclosure requirement.

Orin Kerr comments the amendments and NSL here (quoting Michael J. Woods) and here.

Two law journal presentations on the US Patriot Act and NSLs are found at the website pages of Harvard Law School (a Harvard Civil Rights-Civil Liberties Law Review article by Brooklyn Law Prof Susan H. Herman) and in an iBrief of the Duke Law School Law & Technology Review (by law student Christopher P. Raab.

Congressional Research Service CRS

CRS is the Congressional Research Service:

CRS is organized into five interdisciplinary research divisions: American Law; Domestic Social Policy; Foreign Affairs, Defense and Trade; Government and Finance; and Resources, Science and Industry.

The Knowledge Services Group provides research support services to CRS analysts and attorneys in providing authoritative and reliable information research and policy analysis to the Congress.

Within each division, CRS staff are organized into smaller sections, which focus on specific areas of public policy.

The work of the CRS research divisions is supported by six infrastructure offices: Congressional Affairs and Counselor to the Director; Finance and Administration; Legislative Information; Office of Research; Workforce Development; and Office of the Director, which includes the Office of Communications.”

CRS does not directly publish its own research.
However, CRS reports can be found at the websites of:
FAS (Federation of American Scientists)
US State Department
US Embassy in Italy
Open CRS (searchable)
North Texas University Libraries (searchable)

The White House – US President’s Website Offers News and Info

Persons interested in political, legal, social and economic issues might consider subscribing to one or more of the Newsletters offered at The White House.

We subscribe to the Weekly Review which appears on Fridays (see a sample text). More detailed accounts (videos etc.) of the subjects of that Newsletter are available at News about the US President’s activities.

Newsletters by e-mail are also available on Homeland Security, Economy & Jobs, Education, Compassion Agenda, War on Terrorism, Retirement Security, Health Care, and Conservation and Natural Resources.

Interesting for the legally-minded is the the page on President Signs USA PATRIOT Improvement and Reauthorization Act“, which refers to some of the Act’s provisions and effects.

A legal analysis of that Act is found at FAS.org.

Law Doings in Canada (and partially in the USA)

Globeandmail.com has an April 19, 2006 article by Beppi Crosariol covering some law doings in Canada (and also partially the USA) in an article titled “The buzz of cybergossip sites shakes up staid law world“. Interesting is the Canadian BuzzLaw site with the motto “Find out what’s buzzing in the legal community”.

Google Calendar Launched

Via digg
we see that the Google online calendar has launched.

Business Link in the UK

We ran across an interesting government site in the UK called Business Link offering practical support, information and advice for business through the following main menu items:

Starting up
Finance and grants
Taxes, returns & payroll
Employing people
Health, safety, premises
Exploit your ideas
IT & e-commerce
Sales and marketing
International trade
Grow your business
Buy or sell a business
Your type of business
– Regulations, licences and contacts specific to your business area

Business Contract Samples

We ran across a site called OneCLE.com which has a very large collection of
Sample Business Contracts from SEC Filings” covering the following areas
(number of contracts in parentheses):


* Asset Purchase Agreements (445)
* Bankruptcy Agreements (4)
* Business Separation Agreements (220)
* Bylaws (119)
* Change in Control Agreements (260)
* Code of Ethics (32)
* Collaboration Agreements (428)
* Construction Agreements (33)
* Consulting Agreements (368)
* Contribution Agreements (37)
* Corporate Governance Agreements (2)
* Credit Agreements (412)
* Debentures (26)
* Deferred Compensation Plans (54)
* Director Agreements (21)
* Dissolution Plans (1)
* Employee Stock Purchase Plans (78)
* Employment Agreements (4304)
* Equipment Leases (189)
* Escrow Agreements (27)
* Excess Benefit Plans (4)
* Exchange Agreements (55)
* Franchise Agreements (48)
* Funding Agreements (4)
* Guaranties (99)
* Incentive Plans (144)
* Incorporation Certificates (89)
* Indemnification Agreements (206)
* Indentures (74)
* Intercreditor Agreements (14)
* Joint Venture Agreements (144)
* Labor Agreements (12)
* Leases (329)
* Leases – California (780)
* Leases – Florida (36)
* Leases – Georgia (30)
* Leases – Illinois (39)
* Leases – Maryland (41)
* Leases – Massachusetts (86)
* Leases – Minnesota (25)
* Leases – Nevada (3)
* Leases – New Jersey (35)
* Leases – New York (97)
* Leases – Oregon (9)
* Leases – Pennsylvania (23)
* Leases – Texas (50)
* Leases – Utah (15)
* Leases – Virginia (32)
* Leases – Washington (80)
* License Agreements (1641)
* Limited Liability Company Agreements (48)
* Loan Agreements (656)
* MIneral, Coal, Oil and Gas Leases (22)
* Management Agreements (45)
* Manufacturing and Supply Agreements (515)
* Merger Agreements (305)
* Non-Competition/Non-Disclosure Agreements (137)
* Note Purchase Agreements (74)
* Operating Agreements (14)
* Participation Agreements (49)
* Partnership Agreements (38)
* Pledge Agreements (128)
* Project Finance Agreements (3)
* Promissory Notes (477)
* Proxy Agreements (6)
* Receivables Agreements (69)
* Registration Rights Agreements (238)
* Research and Development Agreements (227)
* Restricted Stock Agreements (137)
* Restructuring Agreements (11)
* Retirement Plans (29)
* Rights Agreements (31)
* Sales and Marketing Agreements (921)
* Security Agreements (202)
* Services Agreements (1640)
* Settlement Agreements (168)
* Severance Agreements (791)
* Severance Plans (22)
* Shareholder Agreements (119)
* Shareholders’ Rights Agreements (154)
* Sponsorship Agreements (4)
* Stock Option Agreements (362)
* Stock Option Plans (127)
* Stock Plans (60)
* Stock Purchase Agreements (802)
* Subordination Agreements (1)
* Tag-Along Agreements (3)
* Tax Agreements (51)
* Trust Agreements (10)
* Underwriting Agreements (25)
* Voting Agreements (61)
* Warrant Agreements (391)

The site is definitely useful as we, e.g., just used one of these contracts to resolve some translation questions arising in the translation of a business contract from German into English.

Document Assembly not Patentable in the UK – Three Cheers for the London High Court

Update: We received a comment to the original posting below which in all fairness we are posting at the top here to draw an equitable balance for our commentary:

Your readers may be interested to know that the software referred to in your article at http://www.lawpundit.com/blog/2006/04/document-assembly-not-patentable-in-uk.htm is the software underlying the patent applicant’s website at www.ukcorporator.co.uk.

__________

Three cheers for the London High Court, which, according to Out-Law.com, has denied a patent for document assembly.

As written by Out-Law News on April 5, 2006:

UK patents, like European patents, are only supposed to be granted for inventions which are capable of industrial application, which are new and which involve an inventive step. Schemes for performing mental acts, carrying out business methods and computer programs “as such” are among the exclusions from the scope of patentability.”

That paragraph should be sent to every judge and legislator in the United States so that they begin to appreciate what the difference is between a “real patent” and a “simple monopoly claim for an idea”.

Accordingly, in the case under review, “a patent application for an automated method of acquiring the documents necessary to incorporate a company” was refused as not being patentable.

Mr Justice Mann explained the new procedure recently implemented in the UK for patent examination which ought to be to mandatory reading for the United States Patent and Trademark Office and its staff. As Out-Law.com news summarizes:

Patents Office examiners now:
– “Identify what is the advance in the art that is said to be new and not obvious (and susceptible of industrial application),” and
– “Determine whether it is both new and not obvious (and susceptible of industrial application) under the description of an ‘invention’ in the sense of” the European Patent Convention, reflected in the UK by the Patents Act.”

The critical test in the UK, according to Mr Justice Mann is found in this reasoning:

The point of the invention is to arrive at the appropriate company with the appropriate incorporation documents on the basis of information supplied by the user. This act of applying the criteria to arrive at the correctly documented conclusion seems to me to be clearly a mental act. Without a computer a skilled individual would do the same thing in much the same way.

That last sentence should be the benchmark for initially determining whether something is patentable.

If a skilled individual would do the same thing in much the same way – and this is clear in such cases as Amazon’s one-click buying, MercExhange and eBay (instant buying), Eolas and Microsoft (instant application embedding) and NTP and RIM (instant e-mail messaging) – cases where it is clear that patents have not been stolen but rather where “other” skilled individuals have done a particular thing in much the same way as the patent claimant claimed in his patent application, then it is clear that the patent application tries to patent “a mental act” or “an idea”, which is not an “invention” and is therefore not patentable.

Neither an idea nor simply writing down that idea on a piece of paper or submitting that idea in a writing to the patent office should ever be regarded as an “invention”.

An invention, in our view, is a SPECIFIC incorporation of an idea into a SPECIFIC demonstrable product, and it is that product which should be patentable, and that product only. Any individual with the same idea but incorporating that idea into a different demonstrable product is NOT infringing the patent of someone incorporating that same idea into another demonstrable product. For example, a particular kind of mouse trap can be patented, but not the mouse trap idea per se. Indeed, a mouse trap which works by enclosing the mouse should only be patentable for one specific way to do this and not for all means by which a mouse can be “caught” in an enclosure. Even the broad general idea of a “door closing” on the mouse should not be patentable since that is obvious. Something has to be “invented” which is not obvious.

Put a different way, patents should not keep others from developing new inventions to achieve a particular objective. If the patent does that kind of limitation, then the patent granted is too broad, and should be revoked. A good example here is the EOLAS case where only the specific implementation of the idea, demonstrable in a product (EOLAS has no such demonstrable product), of embedding an application instantly into browser could be patentable. What the USPTO has done is to grant a patent which prohibits anyone else from instant embedding of applications into browsers, and that is government absurdity and stupidity at the highest level.

Somehow, American jurisprudence does not seem to “get it” on this very important point and we do wonder what the reason for that is. Perhaps it is the “get quick rich” US mentality? Just getting rich by having a good idea? Should that be enough? We think not. Society prospers primarily through the implementation of good ideas and not by the good ideas per se. Hence, it is also the actual implementers who should be primarily rewarded through the patent system and definitely NOT the patent trolls. Good ideas are and should be a “dime” a dozen, also in the eyes of patent examiners.

In the instant case, the patent applicant should of course be able to retain his copyright in his particular software, so that no one can steal that particular work. Nevertheless, the idea that companies can be incorporated online (by whatever method of juggling documents) has nothing to do with being an “invention” and of course there will be many websites down the road who offer this service in many different ways, and that is as it should be.

The best implementation of the idea will win in the end, and this will not necessarily be the person trying to patent a monopoly on that idea now. Ideas are not inventions.

New Law School Rankings

Leigh Jones of the National Law Journal at Law.com in an April 3, 2006 article titled “Harvard Law Takes a Hit in ‘U.S. News’ Rankings” reports that Stanford Law School has passed Harvard Law School in the new law school rankings by the U.S. News & World Report. Well, that overtaking actually happened already a long time ago, in our opinion. Moreover, we really do not understand how Yale Law School can be ranked above our alma mater, Stanford, but I guess that is what makes horse races. The people from U.S. News should visit Palo Alto and stay a while and then return to New Haven. It’s a lock.