The Life of the Law Takes a New Path : Power and the Nature and Development of Human Laws and Institutions

Dear Readers,

As of this posting, our blawg, the newly formed The Life of the Law at WordPress.com, will take a different path than its predecessor, LawPundit, which we are continuing as a regularly updated blog on law focused primarily on current legal developments and issues.

The Life of the Law, on the other hand, will focus on the broader historical and philosophical aspects of law in an interdisciplinary context. As a blog The Life of the Law takes its name from a famous paragraph at the outset of a book on the common law by Oliver Wendell Holmes, Jr. which reads as follows:

The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” – THE COMMON LAW, Oliver Wendell Holmes, Jr., p. 1 (1881) [emphasis added]

The name of this blog at its origin had nothing to do with a book by Laura Nader titled The life of the law: anthropological projects which we found later online, and which is given the following overview at Google Books:

“Laura Nader, an instrumental figure in the development of the field of legal anthropology, investigates an issue of vital importance for our time: the role of the law in the struggle for social and economic justice. In this book she gives an overview of the history of legal anthropology and at the same time urges anthropologists, lawyers, and activists to recognize the centrality of law in social change. Nader traces the evolution of the plaintiff’s role in the United States in the second half of the twentieth century and passionately argues that the atrophy of the plaintiff’s power during this period represents a profound challenge to justice and democracy.”

We have sympathy for Nader’s interdisciplinary approach, but we have problems with her view of what she calls the anthropology of law.

We look to the historical nature and development of human laws and institutions, which — by their very nature — have always favored those in power and always will. The laws of nature favor the strong over the weak and the laws of man do no less, if only because laws themselves are made by those in power, regardless of their political or otherwise affiliation and regardless of the proclaimed objectives. Those in power always exert their power to actively promulgate THEIR views and THEIR desires, whatever they may be. Such actions can of course benefit third parties and  be of a benevolent nature – but their motivation is always self-interest on the part of the holder of power.

We see this particularly in the realm of religion, where preservation and furtherance of the ruling dogma always has a higher priority than the achievement of any concrete human benefit.

A case in point is the accountability of the Roman Catholic clergy to temporal laws of the State for serious crimes. Scandals involving criminal activities by the clergy fill current news, and this reflects an ancient — even today not fully resolved — battle between the powers of the Church and the State.

More than 800 years ago, there was a monumental battle between King Henry II of England and Thomas Beckett, Archbishop of Canterbury, on just this point, as Henry II insisted that clergymen guilty of serious crimes be tried by State courts and receive just punishments, whereas Beckett insisted that ecclesiastical servants remain under ecclesiastical jurisdiction, where penalties were often minimal – as they still are today, if the Church is allowed “to try their own”. These battles take place over “power” and are not battles over “justice”, even if the churches claim that their organizations serve “benevolent” human interests. So too does government serve the interests of the public, from its point of view. There is in fact no such thing as “benevolent power”. Rather, as in the American system of political and governmental checks and balances among the legislative, judicial and executive branches, the only reality is that “power  corrupts” and “absolute power corrupts absolutely”, so that effective checks and balances are ESSENTIAL to any modern nation-state or its political equivalent.

The worst case here is represented by the religions that merge Religion with the State. This merging of Church and State always marks the end of the rule of law in its civilized sense and invariably presages barbaric inhuman rule by religious bodies — unchecked by modern concepts of legal rights, where the primary legal justification is that the “religious end” — whatever its objective — allegedly excuses — indeed, justifies — any means employed to reach that objective, regardless of the terrible inhuman harms inflicted.

That kind of alleged religion is actually the “absence” of religion in the sense of a belief which is beneficial to humanity. That objective is perverted by the idol of the dogma: It is simple idolatry of an invisible, purportedly existing idol, an idol whose existence can not be proven.

This idolatry – when collectivized – manifests human power in society in its worst form, leading to the total dehumanization of social and family systems, and leading to a society where members of such a society are viewed as no more than fungible tools of the ruling elite and the ruling dogma.

Religion is not the only such worship of  idols. This idolatry is also visible in such atheistic systems as North Korea, where not the Religion merges into the State, but where the State merges into and supplants Religion, making the State theory the system of belief.

A similar development can be seen in the rule of Cuba, where “time” – in the sense of social progress – virtually stopped with the Cuban Revolution and became the servant of the Communist dogma of the ruling oligarchy, who adopted Marxism-Leninism more as a protest against capitalist imperialism than as an embracement of Marxist-Leninist ideals.

Communistic Marxism-Leninism has ultimately collapsed nearly everywhere — and its days are also counted in countries like North Korea or Cuba. This false idol failed and is now rightly gone in Russia and Eastern Europe. Indeed, the fate of this idol is sealed because the preservation and furtherance of the prevailing dogma — i.e. the anthropological idol – becomes the leading motivation of political existence, and as such, disregards economic realities and runs contrary to human benefit, technological progress and social improvement.

Even in capitalism, we see the same phenomenon in action in opposing the introduction of national health reform in the United States, which has been opposed by its opponents primarily on dogmatic, pseudo-libertarian and capitalistic grounds, rather than on the question of what is best for the health of all American citizens in the long run.

As regards existing power systems in politics in general, it is foolish to expect such power structures to admit wrongs and to see the error of their ways. Rather, a principle also applicable to science raises its head, as written by Max Planck, Wissenschaftliche Selbstbiographie, 5. Auflage bei Johann Ambrosius Barth, Leipzig 1970, (1.Auflage 1948), l.c.p.16,1:

“Eine neue wissenschaftliche Wahrheit pflegt sich nicht in der Weise durchzusetzen, daß ihre Gegner überzeugt werden und sich als belehrt erklären, sondern vielmehr dadurch, daß die Gegner allmählich aussterben und daß die heranwachsende Generation von vornherein mit der Wahrheit vertraut gemacht ist. ” (A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.) – The English translation is from The Structure of Scientific Revolutions, Thomas Kuhn (1962), p. 151)

Law too is affected in much the same manner as above in resisting sensible change at every crossroads. In law — which is by nature conservative — this is done by applying the principle of stare decisis and in following previous precedents. What has been done before is usually determinative for what is done now and what is to be done in the future. This makes any kind of substantial legal reform very difficult because existing laws or precedential court decisions do not simply die out. Rather, for real legal progress to occur, laws must be actively changed and precedents must be overturned, which occurs very seldom, and then often at great cost.

At any time in this process, the established opponents are always present in great numbers and resist change at every opportunity. That is why the process of change and resistance to change mark every step of human development on this planet.

Please change your records for LawPundit. The LawPundit blog is now running at blogspot.com at the following address http://lawpundit.blogspot.com/ and has the following RSS feed http://feeds.feedburner.com/blogspot/kUbm

Please change your records for LawPundit.
The LawPundit blog is now running at blogspot.com at the following address
http://lawpundit.blogspot.com/
and has the following RSS feed
http://feeds.feedburner.com/blogspot/kUbm

Since we do not trust Google’s “Blogger team”, who already deleted our lawpunditblog.blogspot.com mirror of LawPundit, we are keeping our pre–transfer archive of LawPundit at “The Life of the Law” at WordPress, but that blog will develop a life of its own in coming postings. That archive covers only postings made prior to the forced migration of the LawPundit blog due to Google Blogger’s abandonment of FTP blog publishing. We can at this time make no guarantee that LawPundit will continue at lawpundit.blogspot.com.

Please note: Upon transfer of LawPundit to the now deleted lawpunditblog.blogspot.com (deleted by Blogger), the Google Blogger team erroneously put up 30-second time-delayed redirects on each archive page at lawpundit.com, so that after viewing a lawpundit.com archive posting, there is an automatic redirect to a now non-existent lawpunditblog.blogspot.com. We can no nothing about this immediately since we have no quick FTP way of changing the HTML code of each of more than 1500 individual postings.

Law Translators and Professional Language Translation : A Call to Resist Discount Rates

Legal or other language translation is by nature a competitively rough business where competent translators are very poorly paid to begin with, so that the following posting is of value to professional translators in the field:

Are you a professional translator? If so, do NOT lower your translation rates! « Marcela Jenney’s Blog

“Clients are asking for discounts, and translators are honoring their requests more and more every day. When you provide a discount on your services, you are giving permission to others to think your services are not worth much. And, unfortunately, this trend is adversely affecting the entire translation and localization industry.”

Read the full story here.

Today is the Birthday of Former U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., Born on March 8, 1841 in Boston

Via the Britannica Facebook feed for today March, 8, 2010, we are informed that the great judge Oliver Wendell Holmes, Jr., also known as “The Great Dissenter” was:

“born March 8, 1841, Boston died March 6, 1935, Washington, D.C.

Oliver Wendell Holmes, Jr. [Credit: Encyclopædia Britannica, Inc.] Justice of the United States Supreme Court, U.S. legal historian and philosopher who advocated judicial restraint. He stated the concept of “clear and present danger” as the only basis for limiting free speech.”

Read the rest at the Britannica Online
.

__________

The Wikipedia has some paragraphs which contain some of the better known of Holmes’ famous quotes:

“According to Holmes, ‘men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite….’

As a justice of US Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in the judicial process.

According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics.

He writes: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics….”

Holmes, also insisted on the separation of ‘ought’ and ‘is’ which are obstacles in understanding the realities of the law. As an ethical sceptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of ‘bad man’ who cares only from material consequences of the courts’ decisions, and not from the point of view of good man, who find his reasons for conduct “in the vaguer sanctions of his conscience”….

EDGE: "Europe, Where the Idea of Competition in the Internet Space Appears to Focus on Litigation, Legislation, Regulation, and Criminalization"

Does Europe especially need to reconsider their approach to the Internet? EDGE would say yes:

Edge: TIME TO START TAKING THE INTERNET SERIOUSLY By David Gelernter: “Introduction: Our Algorithmic Culture” by John Brockman:

“Edge was in Munich in January for DLD 2010 and an Edge/DLD event entitled ‘Informavore’ — a discussion featuring Frank Schirrmacher, Editor of the Feuilleton and Co-Publisher of Frankfurter Allgemeine Zeitung, Andrian Kreye, Feuilleton Editor of Sueddeutsche Zeitung, Munich; and Yale computer science visionary David Gelernter, who, in his 1991 book Mirror Worlds presented what’s now called ‘cloud computing.’

The intent of the panel was to discuss — for the benefit of a German audience — the import of the recent Frank Schirrmacher interview on Edge entitled ‘The Age of the Informavore.’ David Gelernter, who predicted the Web, and who first presented the idea of ‘the cloud’, was the scientist on the panel along with Schirrmacher and Kreye, Feuilleton editors of the two leading German national newspapers, both distinguished intellectuals….

Take a look at the photos from the recent Edge annual dinner and you will find the people who are re-writing global culture, and also changing your business, and, your head. What do Evan Williams (Twitter), Larry Page (Google), Tim Berners-Lee (World Wide Web Consortium), Sergey Brin (Google), Bill Joy (Sun), Salar Kamangar (Google), Keith Coleman (Google Gmail), Marissa Mayer (Google), Lori Park (Google), W. Daniel Hillis (Applied Minds), Nathan Myhrvold (Intellectual Ventures), Dave Morin (formerly Facebook), Michael Tchao (Apple iPad), Tony Fadell (Apple/iPod), Jeff Skoll (formerly eBay), Chad Hurley (YouTube), Bill Gates (Microsoft), Jeff Bezos (Amazon) have in common? All are software engineers or scientists.

So what’s the point? It’s a culture. Call it the algorithmic culture. To get it, you need to be part of it, you need to come out of it. Otherwise, you spend the rest of your life dancing to the tune of other people’s code. Just look at Europe where the idea of competition in the Internet space appears to focus on litigation, legislation, regulation, and criminalization. [emphasis added]

Read the whole thing here.

Hat tip to the Encyclopaedia Britannica at Facebook.

Mobile Patent Lawsuits Increasing Dramatically

Nick Bilton at the New York Times Bits Blog discusses the Explosion of Mobile Patent Lawsuits in the last year, writing inter alia:

“On Tuesday when I spoke with Eric Von Hippel, a professor of technological innovation at M.I.T.’s Sloan School of Management. He pointed out that patent lawsuits had turned particularly unpleasant lately as a result of companies that only buy and sell patents.”

Read the whole thing here.

Hat tip to TechDirt.

This was all foreseeable years ago and we wrote about it. Now, you have a gigantic – then avoidable – problem at your doorstep which is no longer avoidable.

Paranoid on Privacy: Legitimate Law Enforcement Data Retention in the European Union Dealt an Extreme Blow by Germany’s Constitutional Court

EU DATA RETENTION for LAW ENFORCEMENT PURPOSES

The European Union EU Data Retention Directive, Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC requires telecommunications data storage by EU Member States for law enforcement and anti-terrorism purposes. Each EU Member State is required by the Directive to enact legislation in accordance with the Directive. Article 4 on Access to Data provides in addition that privacy safeguards are to be adopted:

“Member States shall adopt measures to ensure that data retained in accordance with this Directive are provided only to the competent national authorities in specific cases and in accordance with national law. The procedures to be followed and the conditions to be fulfilled in order to gain access to retained data in accordance with necessity and proportionality requirements shall be defined by each Member State in its national law, subject to the relevant provisions of European Union law or public international law, and in particular the ECHR as interpreted by the European Court of Human Rights.”

Germany implemented that Directive in the “Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG“, effective January 1, 2008.

On March 2, 2010, the Federal Constitutional Court of Germany ruled that German law unconstitutional, essentially on the grounds of “vagueness” and ordered the destruction of all data thus far retained – an extreme decision without seeming practical necessity.

A nice summary of the court decision is found at the Privacy and Information Security Law Blog by Hunton and Williams LLP.

The Spiegel Online International in Defending Privacy: German High Court Limits Phone and E-Mail Data Storage writes (March 3, 2010):

Germany’s highest court has rejected a controversial law requiring data on telephone calls and e-mail traffic to be stored for six months for possible use by law enforcement. Data stored so far must be deleted immediately, and strict controls must be put in place before the law can come into force again.”

Lance Whitney at CNET’s Politics and Law in German court rules against data retention policy writes:

“The German court found that the law, as implemented, went beyond the intent of the original directive and has ordered all customer data to be removed immediately. The new ruling suspends the directive but doesn’t knock it down permanently. The German court indicated that tighter controls would be needed to ensure the security of the data as well as a clear intention and control over what the data would be used for.”

The German Federal Constitutional Court decision follows a similar line of provincial thinking found in the article German Minister Warns Against the Power of Internet Giants, as written by Spiegel Online International:

“German Consumer Protection Minister Ilse Aigner has launched an attack on the Internet economy, warning that the likes of Google, Microsoft and Apple store vast amounts of personal information on Web users that can be used for financial gain, and can hurt people’s chances of getting jobs or bank loans.”

In a comparably paranoid vein, there is also pressure in Germany and in the EU on Google’s Street View. As reported in CNET’s Does Google Street View see a future in Europe:

“Faced with European Union demands that Google reduce the time it stores its Street View images from 12 months to 6 months, Google Chief Technology Advocate Michael Jones said this week that the company may choose not to map any new photos in Europe unless an agreement on data retention can be reached. Jones, who is also Google’s former chief technologist of Google Maps, Google Earth, and Local Search, made his comments in an interview with Bloomberg News at the Cebit Technology Fair in Germany.”

People’s aversion to Google’s Street View must be one of the most puzzling developments ever, as we find Street View to be one of the greatest features in geographic mapping ever devised, adding a new cartographic dimension to our planet of incalculable value.

The conception that data storage of valid cartographic material GENERALLY violates rights of privacy is simply absurd in all but the most exceptional cases (we leave room open for such a possibility since exceptions always – validly – surface.)

Someone will ALWAYS have this data stored somewhere, but if the data controllers limit it, YOU and I won’t have it, be sure of that, and only someone ELSE will have it. I am not sure how putting cartographic data into the power of unknown data controllers increases my privacy, whereas I do know for sure that limits on Street View greatly limit my world.

Maybe I want to be able to see and show to others – online – the street where I grew up without having to fly there half-way around the world. Or maybe I want to be able to examine thoroughly a future vacation locale or a possible real estate purchase, like a home, without finding that a hotel is next to an oil refinery, or that the home is directly on a highway. Or maybe I want to check out local amenities and circumstances, like schools, shopping, dining, sports, recreation, etc., for a future change of residence or for a visit. There are many, many legitimate uses to Google Street View. I am at a loss to understand how the privacy of anyone is wrongfully infringed by showing the world as that world actually is – in its entirety – presuming of course that what is shown can be seen from public property and shows nothing that a normal passer-by could not see. That is why people who want greater privacy than is normal build hedges around their houses. Well, let them. But do not deny Street View to those of us who want to have it and who find it a welcome addition to the “real world”.

German Nationals Forming a UK Company

German Nationals Forming a UK Company

Forming a private limited company in the UK is a simple process and has a low set up cost. If you are intending to trade in the UK, it appears to your customers and suppliers as though they are dealing with a UK based entity.

As the shareholder and/or director of the company you can remain ordinarily resident in Germany. There are no residency requirements for the first subscribers, subsequent shareholders or directors of an English private limited company and directors and secretaries of private limited companies are not required to have any particular qualifications.

A private limited company can be formed with one director (who must be at least 16 years old) and one shareholder and there is no minimum or maximum share capital requirement (public companies do have capital requirements).

UK companies are required to have a registered office in the UK to act as a contact point for the people that the company deals with and to which official notifications can be sent. However, it is relatively cheap and painless to engage a registered office service provider to give you a UK address and to forward post to you. You can even use this address as the service address for directors and the residential address of the directors can remain private.

There are certain minimum maintenance requirements for a UK private company. It must file an annual return to Companies House setting out the current directors, secretary (if it has one) and its current capital and shareholder position, although this is a fairly simple task. The company will have to keep accounts based on requirements prescribed by UK legislation and to file these with Companies House (although the extent of the filing is relaxed for small companies). The company has to keep certain registers such as directors, secretary, shareholders and charges. These registers must be available for inspection at its registered office.

Finally it is possible for the company to be incorporated and registered in the UK but to be resident for tax purposes in Germany under the relevant double tax treaty. You should seek specific advice on this from a tax adviser if this is your aim.

You may need an apostille certificate if you need to present the company’s UK documents in Germany or other country that recognises the Hague Convention. This will usually avoid a German authority questioning the authenticity of the UK documents. Again this can be arranged at fairly minimal cost if you find it necessary.

In summary, forming a company in the UK is a painless, low cost process. There are also no residence requirements for the officers or shareholders of the company, and there is no minimum share capital requirement.

Jamie Hunt, Legal Clarity Ltd

The information provided in this article is intended as a general guide only. It is not exhaustive or tailored to your individual circumstances.

So Where’s Your Originalism Now, Justice Scalia? – Law Blog – WSJ

Car and Driver and Professor Bainbridge write that The Problem is the Driver, not the Pedal

Professor Bainbridge writes that The Problem is the Driver, not the Pedal and quotes Car and Driver:

“Every man, woman, and child in the U.S. has approximately a one-in-8000 chance of perishing in a car accident every year. Over a decade, that’s about one in 800. “

If the driver is the problem and that will mostly be the case, perhaps it is time that everyone, including car manufacturers pay increasing attention to safety rather than to speed and acceleration in their design of the world’s motor vehicles.

Supreme Court lets stand order to remove Ten Commandments monument / The Christian Science Monitor – CSMonitor.com

Supreme Court lets stand order to remove Ten Commandments monument / The Christian Science Monitor – CSMonitor.com

“The US Supreme Court declined on Monday to take up a dispute over the placement of a Ten Commandments monument on the lawn outside a county courthouse in Oklahoma.

The justices dismissed the case in a one-line order without comment.

The action lets stand a ruling by a federal appeals court and clears the way for the display to be removed from public property….

A panel of the Tenth US Circuit Court of Appeals … ruled that the display was an endorsement of religion and thus violated the First Amendment’s prohibition on excessive church-state entanglement. “

The case is clear as a matter of law. If people would put up a monument which listed the Bill of Rights of the U.S. Constitution, for example, that would be fine, but putting up religious rules on state property – from any religion – is a violation of the Constitutional requirement that Church and State be separate. See Separation of church and state in the United States.

Don’t Worry About the U.S. Economy, It is in the Right Hands: The Talents of the Jews and Jewish Contributions to the World

So, you worry about the U.S. economy? I don’t. The Obama Administration has seen to it that the best economic brains available – are available. Obama is a smart man. His economic team is very heavy on Jewish members.

The Tel Aviv Cluster by David Brooks at the New York Times focuses on some facts about the Jews that should be repeated regularly by mainstream media to its readers, rather than concentrating on political problems in the Middle East that are to a large part an indirect result of past failings by the West itself in permitting the Holocaust to happen and in not putting down their foot against totalitarianism when they should have done so, rather than waiting for the catastrophe of WWII to happen. We may, today, be in a similar situation.

Brooks states those facts about the Jews as follows:

“Jews are a famously accomplished group. They make up 0.2 percent of the world population, but 54 percent of the world chess champions, 27 percent of the Nobel physics laureates and 31 percent of the medicine laureates.

Jews make up 2 percent of the U.S. population, but 21 percent of the Ivy League student bodies, 26 percent of the Kennedy Center honorees, 37 percent of the Academy Award-winning directors, 38 percent of those on a recent Business Week list of leading philanthropists, 51 percent of the Pulitzer Prize winners for nonfiction….

The most resourceful Israelis are going into technology and commerce, not politics. This has had a desultory effect on the nation’s public life, but an invigorating one on its economy.

Tel Aviv has become one of the world’s foremost entrepreneurial hot spots. Israel has more high-tech start-ups per capita than any other nation on earth, by far. It leads the world in civilian research-and-development spending per capita. It ranks second behind the U.S. in the number of companies listed on the Nasdaq. Israel, with seven million people, attracts as much venture capital as France and Germany combined.”

I have often stated that half of anti-Semitism is rooted in ignorance, and the other half in envy, and that is still my opinion today. A man of equal intellect would tend to view the Jews as equals. I myself am not Jewish, but if other peoples on our planet had equal talents, the world would be a much more civilized place.

Where are the Graphic Images for U.S. Patent 7669123 ? Why is the Technology of Image Viewing at the USPTO Stuck in the Stone Age ?

If you have tried to view the USPTO online graphic images for U.S. Patent 7669123 without success, you most likely do not have a graphic viewer that can display TIFF files using ITU T.6 or CCITT Group 4 (G4) compression. Who does have such software? Practically no one.

One institution of domestic government that is sorely in need of implementation of the U.S. President Barack Obama campaign promise of “change” is the United States Patent and Trademark Office (USPTO) – an inexcusably antiquated operation that has literally been left in the proverbial dust of foreseeable innovation by the fast pace of the modern digital era.

To show just how backward the USPTO is, they are still unable to unify a patent into ONE document – even if split into multiple modules in the case of larger documents, preferring rather to stick to a hopelessly outdated format that keeps the text of the patent separate from the images that accompany the patent, making the viewing of patents an enormously outdated chore for anyone involved in the patent business. We face the same problem at Yahoo Groups too, as Yahoo is another outfit populated by Rip-Van-Winkles. The USPTO argument that their way is the “patent standard” around the world by no means exculpates the patent offices for this glitch but rather proves that those patent offices are all about 20 years behind the times.

Worse, in what amounts to a technological scandal, the special TIFF format used by the USPTO is not geared to normal state-of-the-art graphic viewing programs used by everyone – that would be too simple, so that the average user is forced to buy programs to view the special USPTO patent graphic format – there being only one, very poor, free viewing program (AlternaTIFF) and one cripple-ware program (interneTIFF) that did not install on our system at all. Are patents really “of, by and for the people”? Nah. Only for the select few.

Brian, commenting at Nipper’s The Invent Blog writes:

“I can’t understand why the USPTO uses a tiff format rather than a pdf format. I’ve gotten to where I rarely ever view images on the USPTO website anymore. Instead I either pull up the patent on Google’s patent search site or download the pdf from somewhere like pat2pdf.org.”

The user interface of AlternaTIFF is confined and cramped for some reason known only to its programmers to the left side of 1/3 of our 22-inch screen in a non-legible size and any sensible use of those images in magnification mode is an insult to digital intelligence.

Both of the aforementioned TIFF viewer programs are listed by the USPTO as having been tested on IE and Netscape, a browser discontinued two years ago, and AlternaTIFF has been tested on Opera. Someone might inform the USPTO that Mozilla Firefox is the second most popular browser in the world today and is regarded by many savvy observers to be the best browser available, used especially by the tech community in great numbers. That there are dozens of other browsers out there (Chrome, anyone?) using standard graphic programs and viewers with great success is a piece of information that someone should pass on to the USPTO as well. That an institution in America responsible for patents is itself a Model-T Ford as far as tech status is concerned merely verifies the incompetence that seems to run rampant in the top echelons of this institution.

As the USPTO itself writes:

“PTO’s full-page images, nearly four terabytes overall, are stored and delivered at full 300 dots per inch (d.p.i.) resolution in an image file format called “TIFF,” using CCITT Group 4 compression…. Unfortunately, due to the volume of the image data, available funding, and other technical considerations, PTO cannot convert these images to a format more popular on the Web either permanently or by converting on-the-fly as they are delivered. [ – comment by LawPundit: excuses, excuses. The USPTO is YEARS behind the times.]

As a result, you must install and use a browser plug-in…. An alternative method is to use third-party software or services to view these images either directly or after conversion to another format….

The plug-in you use cannot be just any TIFF image plug-in. It must be able to specifically display TIFF files using ITU T.6 or CCITT Group 4 (G4) compression.

The only free, unlimited time TIFF plug-ins offering full-size, unimpeded patent viewing and printing unimpeded by any advertising on Windows® x86 PCs of which we are aware are:

* AlternaTIFF: http://www.alternatiff.com/ (tested: IE, Netscape, Opera)
* interneTIFF: http://www.internetiff.com/ (tested: IE, Netscape)

For the Apple Macintosh®, Apple’s freely distributed Quicktime version 4.1 or later works with our images for pre-Safari Macintosh, but does not provide direct printing capability…. [LawPundit: Gee, our Quicktime is currently in version 7.]

For Linux®, a plug-in called “Plugger” works nicely with Netscape Communicator®….

PTO cannot and will not provide direct user support for TIFF image display or printing beyond the provision of hyperlinks to known suitable free TIFF browser plug-ins….

Full-page images can be accessed from each patent’s full-text display by clicking on the [Images] button at the top of the patent full-text display page. If you have a properly installed G4 TIFF image viewer or plug-in, this will bring up the full-page image of the first page of the patent along with navigation buttons for retrieving the other pages of the document. These buttons include buttons for the identifiable sections of each patent: Front Page, Drawings, Specifications, Claims, Certificates of Correction (if any), and Reexaminations (if any). [LawPundit comment: The forward and back arrows in the menu of AlternaTIFF do not to function in the version we got to run on our PC – you have to use the column menu left. A software interface out of the Stone Age.]

* Patent images must be retrieved from the database one page at a time. This is necessary since patents can be as long as 5,000 pages, and the resources required to allow downloading such “jumbo” patents are not available. Users employing third-party software which downloads multiple pages of a patent at once may find this practice subjects them to denial of access to the databases if they exceed PTO’s maximum allowable activity levels. [LawPundit, commenting while falling over laughing. A denial of access for using newer technology? Unbelievable. One page at a time for patents as long as 5000 pages? And these people claim to have the competence to issue patents? Not in our book.]

* Successful printing of patent images is entirely dependent on the user’s browser and image viewer software. PTO does not provide support for printing problems. We will suggest, however, based on our experience, that with most image viewers, images may best be printed using the plug-in’s print button rather than the browser’s print function.” [LawPundit comment: Based on what we see, the USPTO should not be giving anybody ANY advice, but should rather be opening their ears TO TAKE ADVICE from the literally millions of people on this planet who appear to be more savvy about these things than they are.]

If you, as a normal web user, now download AlternaTIFF, you can view patent images only after you have installed the program as an add-on in your browser. Then you can look at the images that accompany U.S. Patent 7669123 – one at a time of course – and in a format that will make your hair stand on end.

Do we need the USPTO? Not the one that presently exists.

Should the Patent System Be Totally Revamped? Yes, Of Course. Constitutions (and their provisions) are Like Restaurants : Here Today, Gone Tomorrow

Should the world patent laws be changed in their foundation? Should we stop issuing patents for methods and for software? You better believe it.

In this regard, a posting by Mike Dorf is instructive. Our fundamental laws CAN be changed:

At Dorf on Law: Constitutions and Restaurants

Mike Dorf writes:

“[I]ssues of constitutional law are never fully settled, because they are always open to the possibility of re-examination.”

Is that true? And why is that important? Who says that it is desirable that an issue of constitutional law be fully settled? And if not fully settled, is the “possibility of re-examination” the actual reason for this uncertainty, or is the actual reason to be found in the adaptive purpose of constitutions – in their role as the foundations of government – and thus in their need to adjust their mandates to changing times. A good example here would be the U.S. Constitution and the constitutional extension of the right to vote to minorities and to women. Humans drive social change and man’s laws merely adjust to and reflect that change.

Further, Dorf writes:

“As Tom Ginsburg et al report in a recent paper, the average lifespan of a national constitution is 17 years. Constitutions, it seems, are like restaurants: Most new ones fail.”

Is there anything wrong with that argument? Is the average lifespan of constitutions really so short, or is the problem here that governments, especially in developing countries, are short-lived? Can a constitution really fail, or is the actual failure involved one of human application of constitutional dictates? Or is the failure of constitutions in fact to be traced to their failure to keep up with the times?

To what degree has the U.S. Constitution, for example, become out of date? especially on the example of its patent provision? Maybe we should strike that clause entirely as having very little relevance to the way that the economy of the modern world is or should be run.

Facebook Awarded a Patent on Social Network News Feeds : The USPTO is NUTS

CNN says it best:

“”Can I start screaming loudly about patent reform now?” tweeted Matt Galligan….”

IP Watchdog writes about the cause of the screaming which is that:

Facebook Gets US Patent on Social Network News Feeds | Patents & Patent Law

A patent on a “dynamic news feed”?

Yes, and your great-grandmother wears kryptonite green and lemon yellow polka dot Nikes with pink soles.

If there ever was proof that the entire busines of patents is just a scam of nearly criminal proportions, this is it.

Here is a sample of the invention in Patent No. 7,669,123, linked here from IP Watchdog:


Is the world mad? This patent madness MUST STOP.