The Supreme Court's new opinion KSR Int'l Co. v. Teleflex Inc. on the "obviousness" inquiry under §103 of the Patent Act has IP bloggers hopping. Michael Barclay calls KSR "the most important patent case of the last 20 years, and perhaps since the passage of the 1952 Patent Act."  Dennis Crouch is not so moved, stating that "the opinion appears to simply refine the particulars of how prior-art can be combined and when a 'combined patent' will be seen as obvious."

David French calls the opinion an "anti-patent initiative by the US Supreme Court," and Mike Madison offers examples from the opinion where "Justice Kennedy, writing for the Court, may have let his pen run away from him," but Joe Miller loves this sentence from the Court's opinion: "A person of ordinary skill is also a person of ordinary creativity, not an automaton."

For my money, the most interesting part of the opinion is the section in which the Court discusses the effect of the obviousness inquiry on innovation:

The obviousness analysis cannot be confined by a formalistic conception ofthe words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

The bloggers seem to agree that KSR could lead to more patents being rejected by the PTO and more existing patents being declared invalid. Is this a good thing?

Permalink | Intellectual Property | Comments (2) | TrackBack (0) | Bookmark

This YouTube clip of Yoram Bauman, the Stand-up Economist is hilarious.  My favorite line:  "Microeconomists are people who are wrong about specific things, and macroeconomists are people who are wrong about things in general."  (On his homepage, Bauman admits paraphrasing this from P.J. O'Rourke.)  I think he's been doing this bit for years now, but it's new to me.

Permalink | Economics | Comments (0) | TrackBack (0) | Bookmark

The NYT yesterday reported that a number of Christians with problems getting a handle on their spending were turning to support from their local churches.  Although the article seems to report on this as a new development, which would fit into the story arc of the past few months of sub-prime lending and financial distress, faith-based budgeting has been around a long time.  The article mentions one such program, developed by Crown Ministries, but that program has been around for quite awhile.  I first heard of friends involved with that program almost ten years ago.  My friends had J.D.s and MBAs and found a lot of value in the program, although the article suggests that the programs are good for lower and middle incomes.  At least with the Crown Ministries program, part of the value is in instilling discipline -- making a detailed budget and inventory, writing down all purchases, and even committing not to miss a weekly session of the lengthy program.

One aspect of these programs that is different from professional credit services (besides fees, etc.) is the emphasis on tithing, which the NYT reporter seemed to say was misguided because those funds could pay down debt sooner.  However, the reporter fails to understand that having a goal of tithing more can be a motivator to pay off credit cards.  As one interviewee noted, she had begun to think of a large credit card balance as "just the way of life."  Paying off credit cards to have a good credit report may be too abstract, and paying off balances in order to afford something else, even something more permanent like a car or house may seem like part of a cycle.  The financial burden of the extra interest payment may not resonate with spenders not particularly well-versed in financial literacy.  However, being given a spiritual goal may be motivating to some.

Granted, these programs may be gaining in popularity as credit card debt goes on the rise;still, I thought it odd that these programs were described as new oddities by the NYT.

Permalink | Finance | Comments (1) | TrackBack (0) | Bookmark

When my third-grader came home and told us she was reading The Westing Game, I was thrilled.  I loved that book, although I think I read it in sixth grade not too long after it was published.  I decided to re-read the book, and it was just as good now as it was then.  What I did not remember, and I'm sure did not pay attention to at the time, was the setting.  The book is set in (or around) Milwaukee!  So, add The Westing Game to the short list of books, TV shows and movies set in Milwaukee.

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From Thomas McGraw's new book, Prophet of Innovation: Joseph Schumpeter and Creative Destruction:

[Schumpeter] and his friend Felix Somary had a long discussion with Max Weber, whose work Schumpeter much admired. Their meeting took place in a coffeehouse just across from the University of Vienna, where Weber had recently become a professor. Soon the conversation turned to the Russian Revolution, and Schumpeter said that as last Marxism would have a practical test. Weber replied that the result was likely to be catastrophic, because the Bolsheviks were so brutal. "That may well be," Schumpeter said, " but it would be a good laboratory to test our theories."

"A laboratory heaped with human corpses!" said Weber.

"Every anatomy classroom is the same thing," replied Schumpeter.

As the conversation went on, Somary recalled, "Weber became more vehement and raised his voice, as Schumpeter for his part became more sarcastic and lowered his. All around us the cafe customers stopped their card games and listened eagerly, until the point when Weber sprang to his feet and rushed out into the Ringstrasse, crying 'This is intolerable!'" Meanwhile, "Schumpeter, who had remained behind with me, only smiled and said, 'How can someone carry on like that in a coffeehouse!'"

This anecdote was intended to illustrate Schumpeter's "lack of tact and discretion," though Schumpeter hardly seems oblivious to the effect of his words. My guess is that the whole point of Schumpeter's outrageous remarks was to irritate Weber. I wonder why people so enjoy pushing someone's buttons like that. Without that impulse, many blogs wouldn't exist.

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After returning from an overnight camp with my sons, I collapsed on the couch this afternoon. (Literally. My back hurt so much, even after sleeping on an air mattress, that I couldn't walk.) I have never watched the NFL Draft, but I was curious to see where BYU quarterback John Beck would be drafted. Well, the program could not have been less exciting, but Miami nabbed Beck early in the second round. (Told ya.)

The only suspense involved Brady Quinn, who suffered a lot of embarrassment today. But he handled it with an immense amount of class, and ultimately got a good result from a personal standpoint. He gets to play for his childhood favorite team, and he has Joe Thomas to block for him! Anyway, I never watch professional football, but he made me a Brady Quinn fan today.

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AALS SECTION ON BUSINESS ASSOCIATIONS
Call for Papers
JANUARY 2008 ANNUAL MEETING

The AALS Section on Business Associations will meet during the AALS Annual Meeting in New York City, from 2:00 pm – 5:00 pm on Thursday, January 3, 2008.

The topic for this year’s session is "Corporate Law in Global Markets." The globalization of markets for capital, products, and managers has cast a bright spotlight on domestic legal regimes, including U.S. corporate governance laws. In the first half of the session, a roundtable discussion among scholars from the U.S. and Europe will explore the international competition of corporate governance laws.

The second half of the session will feature paper presentations based on submissions made in response to this Call for Papers. While possible topics include regulatory competition, the Executive Committee of the Section encourages submissions on other aspects of comparative corporate governance; the implications of reincorporation of U.S. corporations; the regulation of multinational corporations; inter-jurisdictional litigation and enforcement; the role of stock exchanges; and the like.

If you are interested in presenting a paper, please submit a summary of no more than three double-spaced pages (e-mail preferred) before Friday, August 17, 2007. In addition to the summary, you may also submit a complete draft of your paper. Direct your submission to:

Professor D. Gordon Smith
dgsmith@gmail.com

Prior to May 31, 2007
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706

After May 31, 2007
J. Reuben Clark Law School
Brigham Young University
P.O. Box 28000
Provo, UT  84602

Papers will be selected after review by members of the Executive Committee of the Section on Business Associations, including:

Richard Booth (Maryland/Villanova)
William Bratton (Georgetown)
Eric Chiappinelli (Seattle)
John Coates (Harvard)
Deborah DeMott (Duke, past Chair)
Therese Maynard (Loyola)
Marlene O’Connor (Stetson)
Frank Partnoy (San Diego, Chair-elect)
Larry Ribstein (Illinois)
David Skeel (Penn)
Gordon Smith (Wisconsin/BYU, Chair)
Guhan Subramanian (Harvard)
Cynthia Williams (Illinois)

Authors of accepted papers will be notified by Friday, September 28, 2007. Please feel to free pass this Call for Papers along to any colleagues who may be interested.

Permalink | Legal Scholarship | Comments (0) | TrackBack (0) | Bookmark

While Leandra Lederman was here blogging about Second Life, I meant to chime in about a new craze that might be under the radar for those readers without elementary school-age children:  Webkinz.  The phenomenon begins by buying what seems like a benign stuffed animal that is almost indistinguishable from a beanie baby to the uninformed.  In Champaign, the going price is $9.99, although due to shortages, the eBay price seems to be about $20.  But the stuffed animal is no ordinary stuffed animal; the tag on the animal is encased in plastic and when opened, reveals a secret code.  With this secret code you can log on to www.webkinz.com and register your new pet.  (The first year of play is free, then you pay a fee to continue.  As my husband pointed out, if the fee is more than $10, we'll just buy another pet.)  Then, you can begin creating a virtual home for your pet, buying furniture, even adding on to the one room that each pet starts life with.  You must also feed your pet, take him to the doctor, bathe him, and do other things to keep his "health" monitors 100%.

When you run out of your original allotment of Kinzcash, you can earn more.   

You can do a "job" every 8 hours.  My kids' favorite job to do is a matching game where the context is you work in a shoe store and must match all the shoes within a given amount of time.  You can also play games in the "arcade" to win Kinzcash.  Some of the games are just knock-offs of other video games:  there is a game very similar to Nintendo's Bust-a-Move, for example.  However, the games that give the most points have some educational value.  The quiz games, which might ask math problems or science questions, can earn players a lot of Kinzcash.  Another game, which is cross between Scrabble and Boggle, is also good for racking up the Kinzcash.  With the cash, you can keep your pet fed, decorate his pad, and buy him toys.

So, what's the big deal?  Well, of course there's the group that says that computer use at early ages is bad because kids don't use their imaginations or play outside and run around.  See this article.  But that's a parenting issue.  Most forms of entertainment are addictive, and this is one is too.  (I've been known to play a little Quizzy's Word Search by myself just to "get Luke some Kinzcash.")  So, you set limits.  Big deal.  However, there's another criticism that I have heard and that is that kids are being formed into little consumers by pretending to earn money and spend money.  My colleague Bob Lawless (after we introduced his kids to the Webkinz craze) asked me if there were payday lenders in Webkinz.  Actually, there's sort of a pawn shop!  Kids can sell their unused purchases back to the W Store for 1/2 the purchase price.  I think it teaches good lessons, though.  My seven-year-old daughter learned pretty quickly that being able to sell things back for 1/2 price wasn't a good enough deal and so she chooses her purchases more carefully.  My five-year-old son, on the other hand, spends every dollar he has.  His pet's room looks like Tom Hank's apartment in Big, only with more kids' stuff.  But he's learning that he has to save for things he really wants and that he can't let his monkey starve.  These seem like better lessons to learn in a virtual world than in a real one to me.

The only aspect of Webkinz that concerns me at all is that there is the potential for interaction with other users.  There is "tournament" play where kids can play against each other.  We've banned that just because you never know who is a kid and who isn't.  Also, if you have a friend with a Webkinz account and you know that kid's login name, then you can send each other virtual gifts or let your pets go visit each other.  We do let our kids visit with other friends we know in the real world (like the Lawless children).  We were glad to know that the letters they send to each other are pre-written and un-editable, so someone couldn't send your child an inappropriate letter.  (I'm sure there are people who know how to override that, but hopefully we are strict enough about our "friends list" that this poses no problem.)

As far as I can tell, there is no secondary market in Kinzcash and I can't see why one would be created.  All Kinzcash can do for you is to allow you to buy virtual decorations and consumables.  Kinzcash cannot alter the level of play or take you to new levels.  Your Webkinz experience is unaltered by how much Kinzcash you have saved.

Permalink | Popular Culture | Comments (4) | TrackBack (0) | Bookmark

According to Eric Wilson (NYT), "Nature is so in." And:

Nature — or the appearance of embracing nature — is chic these days. Judging by the direction of fashion and home décor and of-the-moment restaurants and shops, you might mistake Manhattan for Montana. The raw concrete floors and white walls of 1990s minimalism have been swept away. In their place, new boutiques and cafes in the city’s glossier neighborhoods resemble overdesigned hunting lodges — dark and moody, with uneven floorboards to trip over and, almost inevitably, a set of antlers hanging from the rafters.

It appears that I really missed an opportunity during my recent house-hunting trip to Utah. When we realized that homes near BYU were priced at a premium, we decided to explore some options further from campus. On one of those trips, my son looked out the window and sighed, "antlers." He had spotted a rack mounted over a garage door.

Not that there's anything wrong with antlers. It's just that I spent most of my childhood with antlers-mounting people (read: my family) in rural Wisconsin, and I run with a different crowd now.

So I told the real estate agent that we could head back toward the campus -- not that Provo and Orem are antler-free -- but she had made appointments at several houses. And doggone it, we were going to see those houses. Well, the first house after the antler sighting featured a large buck's head in the entry way. By the time we stopped laughing about that, we were walking down to the basement, which was organized around a taxidermied bear cub.

So ended our Mapleton adventure.

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My daughter returned home from BYU today, just in time to miss the protests. For reasons too many to explain here, we ended up flying her from SLC to Midway in Chicago, which meant that I spent most of the day on the road. I really hate driving in Chicago, even if it's only on the fringes.

By the way, about those protests, how lame is Steven Greenstreet for mocking the students for not being confrontational enough? Very.

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The "ouster" of Klaus Kleinfeld as CEO of Siemens is a big corporate governance story, even though it doesn't register so vibrantly in the US. Kleinfeld was not formally terminated. He left after learning that shareholder representatives on the supervisory board were searching for his replacement. As our readers surely know, Siemens is attempting to move beyond a series of scandals, and even though Kleinfeld has not been directly implicated in any criminal activity, his presence was an obstacle to a fresh start for the company.

In the reports of the events that I have been reading, one of the central characters in the drama is Josef Ackermann, chief executive of Deutsche Bank AG, which is a large shareholder of Siemens. Ackermann is a member of the supervisory board, which has 20 members, half of whom are elected by Siemens' employees. According to the W$J, "Labor representatives on the board had said in recent days they were still undecided on whether to support Mr. Kleinfeld when his contract came up for renewal yesterday."

So this looks like a classic block shareholder story, in which Deutsche Bank monitors the top managers of the company and intervenes in a moment of crisis. Would the same underlying facts have the same result in the US? Well, that's hard to say, but my guess is that Kleinfeld stays if Siemens is a US company. Cf. HP (Mark Hurd) and Apple (Steve Jobs).

Permalink | Corporate Governance| Europe | Comments (0) | TrackBack (0) | Bookmark

Most blogs have several widgets. Some bloggers are widget crazy. We at Conglomerate are very discriminating in our use of widgets, but I found this survey of the Top 50 widgets from Lijit quite interesting ...

By far the most popular category of widgets is analytics (about two-thirds of blogs have at least one analytics widget), and Google is the leader by a mile. Some surprises (to me):

• Only 22% of blogs have Sitemeter. That widget seems ubiquitous among the blogs on my reading list.
• MyBlogLog appears on almost 15% of blogs, but it seems not to have hit the law professor blogs, yet.
• Truth Laid Bear looks to be on less than 4% of blogs. There was a time when everyone had the Ecosystem widget, it seemed. We took it off a long time ago.
• The Twitter widget appears on as many blogs as the Amazon Associates widget.
• I have never heard of about half of those widgets.

HT Brad Feld.

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Hillary Clinton wants to take another shot at fixing health care in the United States, which reminded me of my recent dinner with the CEO of a major hospital. Addressing a group of mostly liberal Democrats around the table, the CEO said, "many of you think you want universal health care, but the cost of universal health care is a cost you are unwilling to pay: access and innovation."

Hillary returned to the theme when asked whether Wal-Mart were a good thing or a bad thing for America. Hillary said Wal-Mart is a "mixed blessing." Low costs are great, but Wal-Mart needs to be a leader in providing health care. This reminded me of Arthur Leff's great statement about the doctrine of unconscionability embodying "our incoherent hearts' desires."

Permalink | Politics | Comments (2) | TrackBack (0) | Bookmark

Suja Thomas (Cincinnati) now has a series of papers defending the role of the jury.  (See "Why Summary Judgment is Unconstitutional.")  Her latest, "The PSLRA's Seventh Amendment Problem," discusses whether the heightened pleading requirements effectively harm the right to a jury.  This paper should be interesting to those of us who may be familiar with the PSLRA, but not with that whole trial or constitution thingy.

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I'm a little tardy in posting this, but Barbara Black, Director of the Corporate Law Center at the University of Cincinnati College of Law has issued the following Call for Papers on a very interesting topic.  Proposals are due May 31, 2007:

The Dysfunctional Board: Causes and Cures

March 14, 2008

Hewlett-Packard presents a cautionary tale of the damage caused by distrust and dissension within the boardroom. In fall 2006, Hewlett-Packard became embroiled in a headline-grabbing scandal and disgrace when the media reported that the board had authorized the use of possibly illegal tactics to determine the source of boardroom leaks. In the resulting publicity, the underlying problem – the breach of the directors’ obligation to maintain the confidentiality of corporate information – was often overlooked. More recently, Dow Chemical announced that it had fired two senior executives, one of whom is a director, for allegedly engaging in unauthorized talks to sell the company. In another well-publicized “civil war,” in 2005 Morgan Stanley replaced its CEO and substantially reshaped its board of directors. What confluence of events can cause governance at highly-regarded corporations to go awry? This symposium will explore the causes of dysfunctional boards and attempt to formulate some possible cures.

This is a call for papers. If you are interested in presenting a paper on any aspect of this topic, please submit a proposal to Barbara Black, Charles Hartsock Professor of Law and Director, Corporate Law Center, University of Cincinnati College of Law. Submissions should be no more than 5 single-spaced pages and should be sent by e-mail by May 31 to: barbara.black@uc.edu. Presenters will be reimbursed for reasonable travel expenses to attend the conference, and papers will be published in the symposium issue of the University of Cincinnati Law Review.

Confirmed Speakers: Lissa Lamkin Broome, Professor of Law, University of North Carolina School of Law Lawrence A. Cunningham, Academic Dean, Libby Scholar and Professor of Law & Business, Boston College Law School Tamar Frankel, Professor and Michaels Faculty Research Scholar, Boston University School of Law Kimberly D. Krawiec, Professor, University of North Carolina School of Law

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