,hl=en,siteUrl='http://0ldfox.blogspot.com/',authuser=0,security_token="v_SeT2Tv8vVdKRCcG9CCW-ZdIfQ:1429878696275"/> Old Fox KM Journal : November 2004

Wednesday, November 24, 2004

Maryland Law: Welcome To Maryland Law: "Tuesday, November 23, 2004
Welcome To Maryland Law

As a researcher in the Baltimore office of Shapiro Sher Guinot and Sandler, I'm constantly on the look out for new resources on the web relating to Maryland law. Currently, though, as far as I know, no one has created a blog specifically on this topic. I therefore decided to create this blog as a resource for those of us interested in staying up to date on newsworthy Maryland legal developments and new online tools useful to the Maryland legal coummunity. I intend this to be a collaborative project--one that we can all contribute to and benefit from. So, I welcome your postings!

posted by Trevor Rosen at 11:32 AM "

Monday, November 22, 2004

Old Newspapers

A tip from AALL PLL-SIS

Here is the list:

Past Times
(562) 499-1768
Historic Newspaper Archive
Bill Hirsch
Book Castle

There is also a wonderful source list, "Back Issue Magazines and Newspapers"

Magic Trick Store

Saturday, November 20, 2004

New format

We couldn't figure out how to fix the other template so we've got a new one. Thanks for the head's up. If there is anyone else out there visiting this page, please let me know if it doesn't work for you, if you care.

Meanwhile, here is a little test.

Heading two

Heading one

Heading three

heading four

heading five

Heading six

Is there a heading seven
or eight?
I didn't think so
stop it I can't stand it

Friday, November 19, 2004

Ah, Television

Our Hero, Dr. Stephen Connor: "Call all the hospitals. All the emergency rooms. Call all the police departments. Coroners. Everyone between here and Chicago."

Eva Rossi, the press liaison for a team of highly skilled doctors and scientists from the National Institutes of Health (NIH): "Okay." [then she picks up the telephone receiver]

10pm 2004-11-19 ALL NEW!
DR. CONNOR AND TEAM INVESTIGATE DEATHS OF ADULT FILM STARS -- When a porn star falls into a coma, Dr. Connor (Neal McDonough) and his team arrive in Los Angeles only to discover that two other adult film actresses have died -- and just as they begin to think that the source is a form of sexually transmitted disease, a squeaky-clean suburban mother falls ill and displays the same respiratory symptoms. But Dr. Durant's (Kelli Williams) research reveals another possibility that the women suffer from a toxic species of bacteria that can be traced to a common elective surgery. Christopher Gorham, Anna Belknap and Troy Winbush also star. TV-14

This warning from the Centers for Disease Control: AVOID BRAIN DAMAGE. DO NOT LISTEN TO THIS DRECK DIALOGUE.

If you want to watch this show, better do it quickly before the writers commit hari kari due to the total shame of producing this cartoon. This can be filed under both hackneyed cliche and sledge hammer all at the same time.

Kelli should have waited for the right movie or product endorsement deal. It ain't Pericles.

Next Kylie Inkarnation?

According to Digital Spy:
Digital Spy: Kylie Minogue to get jazzy: "Kylie Minogue to get jazzy
Friday, November 19 2004, 18:51 GMT -- by Daniel Saney

Kylie has confirmed rumours that she has recorded a few jazz tracks to release on an unsuspecting audience.

She told the Melbourne Sun-Herald: 'I don't think I would retire from pop. I honestly don't know. I'm not good at projecting the future. There are a lot more pressing matters in the meantime, but when I reach that stage, that's what inspires me: the unknown. What will I do? But I enjoyed (jazz) and it is the most unlikely thing for me to do, but when I did it, it was received really well. And because it's so unlikely, it worked.

'I had no intention of talking about it but they are done, just as demos. A lot of research has to go into recording any of those standards and in the process of doing that I felt really challenged, really inspired and,surprisingly, some songs I thought would suit me didn't and others I thought 'Hmm' worked really well.'

The change of direction is not to be permanent, but it is an avenue that she would like to explore. This not the first time Kylie has gone off on a musical tangent. She has gone from cheesy pop with the likes of 'Locomotion,' to her version of indie, collaborating with artists such as Nick Cave and Manic Street Preachers, to the recent brand of chart-topping floor-fillers such as Spinning Around, to, so it seems, jazz.

Kylie has yet another hits collection, Ultimate Kylie, coming out on Monday, followed by her new single, I Believe In You, on December 6th. "


While this blog template looks pretty good in Internet Explorer, I have reports that it doesn't work at all well on Firefox. The left side content boxes overlap and mess up content in the main column. I don't know what happens on Netscape, AOL or any other browsers.

I will have to figure out how to fix this template shortcoming, and--since the programming language used for this template is not known to me--this presents a problem, Houston.

Please let me know by comment below if you have any other browser and if there is a display problem. Meanwhile I must apologize, thank the person kind enough to notify me, and ask for pateience while I find and code a new template for this site.

Happy TurkeyDay.

It's Never Easy Being Cheesy

Refreshing: No pretense to art or edification from The Fast Food Rockers.

I LOVE CHRISTMAS is OUT NOW, available from ALL record retailers!
Thursday, 4th December
I Love Christmas - Track Listing CD1:

Seasonal single mix
Sing-a-long-a-Santa Karaoke Mix
Pre-Order from HMV.co.uk

Seasonal single mix
Fast Food Song (Festive Version)
Cheesy Album Medley
I Love Christmas - Video
Pre-Order from HMV.co.uk

Saturday, 15th November
Track By Track Review
Check out our track by track review of It's Never Easy Being Cheesy!

Monday, 3rd November
It's Never Easy...
If you're writing your Christmas lists don't forget to put the Fast Food Rockers Album on there. It's released on November 17th and called It's Never Easy Being Cheesy. Watch this space for more details!

Friday, 24th October
Check out our new Newsbites page for regular behind the scenes gossip on the Fast Food Rockers!

Wednesday, 1st October
Say Cheese - Out Monday
Don't forget, Say Cheese (Smile Please) is out this Monday, 6th October! CD1 at £1.99 includes a competition to go to Disneyland Paris as well as the following tracks:
'Parmesan' Pop Mix 3:40
Mag-C 'Mozzarella' Club Mix 5:56
Sing-A-Long-A-Cheese 3:40
Say Cheese! - Video 3:40

CD2 at £1.99 includes 4 giveaway picture cards of the band as well as the following tracks:
'Parmesan' Pop Mix 3:40
LMC Extended 'Fondue' Remix 5:59
Bonus Track:
Stompin' 3:45

Cassette at 99p includes the following tracks:
'Parmesan' Pop Mix 3:40
Sing-A-Long-A-Cheese 3:40

Tuesday, 30th September
Fast Food Rockers will be performing at G.A.Y. this Saturday at their SKOOL DISCO night. They are the only act booked and will perform a 3 song set - including the two singles FAST FOOD SONG and SAY CHEESE! together with an exclusive performance of STRUT YOUR FUNKY STUFF which will appear on the forthcoming album.
In keeping with the spirit of the night Fast Food Rockers will be wearing school uniform!

Tuesday, November 16, 2004

Nokia developing RFID-embedded phone

Ben Charny
CNET News.com
October 25, 2004, 08:45 GMT

Story URL: http://news.zdnet.co.uk/hardware/mobile/0,39020360,39171258,00.htm

Nokia is at work on a cellphone that uses microchips used to store product information and signal their location, the company announced on Sunday.

So-called radio frequency identification (RFID) is a favourite of warehouse operators and some retailers because of how easily product information stored on the chip can be transferred. Nokia said delivering product information to a mobile device using RFID can extend the technology "beyond the supply chain, and into customer service, merchandising, marketing and brand management".

Nokia director Gerhard Romen said that, for instance, retailers could put RFID-embedded "touch phone here" signs on store shelves to send a coupon to the phone, or put the same signs at checkout stands to instantly transfer personal information stored on the phone in order to complete a warranty.

At the CTIA Wireless I.T. & Entertainment trade show in San Francisco, Nokia was demonstrating an early prototype that was built in collaboration with VeriSign, which is proposing a central repository for RFID data that companies can use to relay information about inventory and deliveries to customers and suppliers. The prototype was based on Nokia's 5140 model, with an RFID reader contained in a shell that attached to the phone.

"It's still very early yet," Romen said on Sunday when asked when RFID phones may become commercially available.

One snag facing RFID is privacy concerns. Consumer advocates say the unchecked spread of the devices in libraries and elsewhere could spell disaster for privacy. They envision a future in which a network of hidden RFID readers track consumers' every move, their belongings and their reading habits, though most agree that such a scenario is largely impossible today for technical reasons.

Industry players and the US Federal Communications Commission are working to eliminate the obstacles to the promising technology. Power limitations and varying international regulations are among the challenges that threaten to slow RFID's mass adoption, the FCC said.

RFID's addition to Nokia phones is inevitable, to some industry veterans. During the past few years, cellphones have been tricked out with any number of different wireless antennas -- global positioning systems, Wi-Fi, infrared, Bluetooth and soon ultrawideband -- in order to increase handsets' usefulness.

Copyright © 2004 CNET Networks, Inc. All Rights Reserved.
ZDNET is a registered service mark of CNET Networks, Inc. ZDNET Logo is a service mark of CNET NETWORKS, Inc.

Monday, November 15, 2004

Polite, eccentric, aloof, patriotic free spirits

(Filed: 15/11/2004)

A Royal Society-sponsored worldwide survey has attempted to capture the essential characteristics of the British. Philip Johnston examines its findings.

Ten years ago John Major, the Conservative former prime minister, was derided for his vision of Britain in the new millennium. ''Fifty years from now,'' he said, ''Britain will still be the country of long shadows on county grounds, warm beer, invincible green suburbs, dog lovers and pool fillers and – as George Orwell said – 'old maids cycling to Holy Communion through the morning mist' . "

There was much jollity at Mr Major's expense. He was, said critics, really talking about England, not Britain, and, in any case, these sepia-tinted characteristics no longer existed. But his final sentence is rarely quoted: "Britain will survive unamendable in all essentials."

Has the concept of Britishness been redefined?

There has been debate over what those ''essentials'' are. But research conducted by Mori for the Royal Society for the encouragement of Arts, Manufactures and Commerce (RSA) suggests that there are quintessential British characteristics – readily identified both abroad and in this country – that have survived despite the huge cultural and political changes of the past 50 years.

If the British are wondering how they are seen abroad, they should rest assured that it is not as a weird collection of oddballs depicted on BBC's Little Britain or drunken yobs trashing a foreign resort but as a tolerant, polite, slightly reserved and proud people.

The research – conducted in Bombay, Chicago and Milan together with interviews among a focus group in King's Lynn, Norfolk – paints a picture of a surprisingly contented country that is admired overseas. Respondents, who also included foreign journalists working in Britain, held generally positive views of the United Kingdom and British people; in particular, most overseas participants in the research emphasised British humour as a defining characteristic.

Politeness was also agreed upon as typically British, though this was also considered by some to be a front for reserve and an ''uptight'' approach to social situations. There was a widely-held perception of the British as strongly individualistic and politically independent, a trait especially noticeable in the country's somewhat ambivalent relationship with the rest of the European Union, its unwillingness to join the euro and its stubborn insistence on continuing to drive on the left.

On the downside are the legacies of empire – notable among Indian respondents – particularly a patriotic ''arrogance'' that conveys a feeling of superiority in the eyes of those looking in.

Given that Britain – or the UK – is not a single nation, overseas respondents were well aware of its constituent parts, though few were able to say how Northern Ireland fitted into the mosaic, even if they were fully informed of its troubled history.

''England was generally seen as urban and Scotland was simply seen as countryside, with 'nice' people,'' say the researchers. ''There was little knowledge of Wales, though some pointed out that Catherine Zeta-Jones grew up there."

But despite these stereotypes, there was a general awareness of Britain's cultural diversity that tends to militate against broad generalisations. Where 50 years ago, there were certain shared characteristics that could typify the British, these have become less all-encompassing as a consequence of post-war immigration.

Nevertheless, politeness and tolerance remain touchstones of Britishness, even if they can be misconstrued. "British politeness may be taken a step too far, to the point that it becomes off-putting," say the researchers. One American correspondent said: ''It is especially noticeable among men, both physical – no hugging – but also a reluctance to express preference or emotion in normal discourse … They are a little more formal and a little slower to make friends.''

Another said: ''Sometimes there is an aloofness … and a sense of superiority which is hard to distinguish from pride.''

Some foreign correspondents living in London said they found it difficult to socialise with British people outside the workplace "as there could be a perception of 'old school ties' binding groups together''. However, since a similar suspicion was apparent among the British respondents themselves, this seems to be less a national characteristic than a reflection of the difficulties outsiders have fitting in anywhere.

The British sense of nationality and pride in political and cultural tradition were also seen as distinguishing features, though the Americans tended to see them as positive and patriotic, while those in Italy and India were less impressed, regarding such characteristics as haughty or isolationist. On the other hand, the British focus group did not consider themselves to be excessively patriotic when compared to the Americans – or at least, were less likely to be demonstrative about it other than at sporting occasions or during a crisis.

Indeed, the British rarely see themselves as British, judging by the views of respondents in King's Lynn. Perhaps unsurprisingly among an English group, they found it difficult to articulate what Britishness meant to them. ''This may reflect the complex nature of being British, and the contradictory nature of some of the values that underpin the British way of life, but it may also reflect the fact that many overseas views of Britain are likely to be based on stereotypes.''

So, in Britain itself has the concept of Britishness disappeared or simply been redefined?

There remains a Britain that prides itself on a history of continuous freedom, self-government and the rule of law; these are some of the ''unamendable essentials'' to which Mr Major referred and are among the strongest attractions to people wanting to settle here.

But much of the country familiar to Orwell has gone. It is both more European and American than 50 years ago. Warm beer is less likely to be ordered in the pub than continental lager. Coffee shops are everywhere, at least in London – though this is less an innovation than a return to the 18th century, when they were the meeting places for City traders. British food is no longer the joke of Europe and there is a more eclectic cuisine in London than in any other city in the world.

Yet the multi-culturalism that has brought this about is also a threat to the homogeneity of the British, if such a thing still exists. This feeds into the concerns of the ''traditional'' British, who now regularly identify immigration as the political issue that most worries them. This was true of the King's Lynn groups, whose members thought immigration, especially from eastern Europe, was the root cause of many of the country's social and economic problems.

Paul Crake, the programme director of the RSA, who has analysed the research, said the issue was less one of "nation-based xenophobia" than of a perception of being taken advantage of by people who abused the system. The respondents, for instance, had no problem with the large Chinese community in the area because they were ''hard-working''.

On the other hand, the tolerance that outsiders identified was particularly noticeable when it came to homosexuality, with most respondents saying people should be allowed to live their lives in their own way, an attitude more liberal than would have been apparent even 20 years ago.

One thing that emerges from this research is that if the British lacked self-confidence for much of the post-war period, labouring under the burden of being the "sick man" of Europe, that sense of inferiority is far less in evidence today. Market-orientated economic reforms, greater affluence and the cultural reach of the English language have also helped transform Britain's image abroad.

In Europe, there is grudging admiration for the way the British have sought to turn the EU away from its integrationist tendencies, even if the old Franco-German core remains intact and Britain is seen as too close to the Americans.

We may think our public services do not work properly; that there is too much crime and anti-social behaviour; that Britain is too diverse and complex to give expression to a common culture; and that some of the old certainties have gone. As Raymond Seitz, a former American ambassador in London, said, the British "seem to know mainly what they used to be".

But there are some ineradicable elements, well articulated by Bernard Crick, the head of the Government unit established to draw up a test of Britishness for new citizens. To him it represents ''an allegiance to institutions of parliamentary government and law, symbolised in the crown, that binds four national cultures together on partly historical and partly pragmatic grounds''.

© Copyright of Telegraph Group Limited 2004. Terms & Conditions of reading.
FrontPage magazine.com

Locating Legal Information on the Web: 2004

PDF Here.
Blogos: "The New Testament Hyper-concordance
This began as a programming exercise try some corpus linguistics techniques with the Open Scripture Information Standard, a recent XML standard for encoding Bible texts. I wanted to see what i could learn from more thoroughly connecting the words of Scripture together. You can jump right in and explore through the index: this article provides background about what, why, and how.

What's a 'hyper-concordance'?

The basic idea is to navigate the space of Scripture directly using words. Most Scripture websites have a search box where you enter a word to find verses that use that word. For example, searching the English Standard Version New Testament for the word 'pots' finds two verses, Mark 7:4 and Revelation 2:27 (you need to use the advanced search and select 'Exact matches only'). From the standpoint of connecting information, this provides a link from a single word to one or more verses of Scripture. "

Searching for Structure

By David M. Scott - November 2004 Issue, Posted Nov 12, 2004

All Content Copyright © 1998-2004 EContentmag.com - All Rights Reserved
No wonder Google pulled off its public stock offering: More than 70 million Americans use search engines weekly according to the Pew Internet & American Life Project—and Google is the most popular search engine by far. Search engines aren't just popular, they're indispensable; almost one-third of respondents said they couldn't live without Internet search engines. But as the volume of information on the Web continues to expand, even the casual once-a-week searcher can become frustrated with the keyword search results from general search engines like Google. The pros, schooled in Boolean search skills, might fare a bit better, but how about the business person who's not a super searcher? Many are looking for a better way. This isn't to say Google, Ask Jeeves, and MSN will disappear. I expect they'll continue to grow. Rather, for specialized business purposes, new tools are required, and business people are increasingly open to experimentation as new search tools emerge.

Into the mix comes a growing set of firms focused on specialized search. The VCs see a trend: Search engine companies are one area seeing millions of dollars in funding. Players putting their stamp on specialized searching for business include the Factiva/IBM WebFountain collaboration (relying on text mining to combine the precision of search with the serendipity of discovery), FAST (analyzing data using semantic orientations), and Intelliseek (a new and interesting way of looking at blogs).

I'd argue that an often overlooked area—aggregated Web directories for particular product niches—double as terrific specialized search engines, and I think we'll see many more directories, particularly in various B2B niches, pop up in the coming years. When companies like Amazon take a product category to the Web, they first create a useful taxonomy combined with structured data for each listing in the database. Books, ISBN numbers, authors, publication dates, and reviews all need to be amassed, collated, and added to structured databases for cross linking and searching. In the B2B world, ebuild is a popular directory for building professionals and architects to search a detailed taxonomy of more than 230,000 building products. If you want to find all the books by your favorite author or to match doorknobs for a home addition, Amazon and ebuild are much better places to look than general engines.

Although the technologies and approaches differ, next generation search companies do several things well. They take advantage of free Internet content as raw materials to keep content costs at zero. Because of their traffic volume, they also get suppliers (like Amazon's publisher partners and ebuild's suppliers) to contribute product specs. Each of the engines also adds detailed levels of structure to unstructured text, making it useful to a specialized field. For example, Eliyon surfaces information on business professionals from a database of over 20 million people in over a million companies, all mined from the public Internet. Interestingly, Eliyon now allows individuals to update their personal biographical profile in the database through a tool on its site. Another specialized B2B engine, DolphinSearch, focuses on litigation support for the legal community.
A helpful feature of specialized directories and engines is locating related information that can also be searched and browsed. Amazon's "Customers who shopped for this item also bought" feature, Eliyon's linking of people's names to the companies they've worked for in the past, and Shareholder.com's revelation of the industry analysts and major investors in company financial data are all examples of how specialized services aid in related searches.

Applying a mix of sophisticated text-mining techniques, natural language disambiguation algorithms, and artificial intelligence methodologies to the public Web and news databases creates remarkable sets of highly structured and useful documents in a unified format, ready to be searched. Increasingly, specialized engines also mine hidden parts of the Web. For example, Intelliseek adds a unique twist in its analysis of blogs. By combining the time-stamp data found in each individual post from nearly two million blogs, active discussions are located and analyzed with time as a coordinate. Factiva's Insight for Reputation powered by WebFountain uses the time component as well, making the discovery of emerging opportunities and threats visible.

I suspect specialized search engines will provide structure to all kinds of new and interesting data in the future. B2B publishers and other domain experts, with the power of their detailed content taxonomy, have an opportunity to launch directories to monetize their unique content for Web search. General search engines won't go away, but the specialists now form an interesting market to watch.

A bar code that barks

The New York Times > Health > Tiny Antennas to Keep Tabs on U.S. Drugs

Tiny Antennas to Keep Tabs on U.S. Drugs
The F.D.A. is expected to announce an agreement to put tiny radio antennas on the labels of medicine bottles to combat fraud.


"It's basically a bar code that barks."
ROBIN KOH, of the Massachusetts Institute of Technology, on a system to track wholesale drugs.

Saturday, November 13, 2004

WTO: Antigua correct, US wrong

The World Trade Organization has releases it's report outlining the arguments and evidence in the case finding that the US is improperly preventing or restricting or limiting Antigua and other licensed legal gambling venues from doing business competitively.

News US to appeal WTO ruling on internet gambling


The US is set to appeal a World Trade Organisation ruling that the hard line taken by the US on internet gambling is in breach of world trade rules, a spokesman for the US Trade Representative said yesterday.

The issue of internet gambling was brought before the WTO in June 2003 when the tiny Caribbean state of Antigua and Barbuda complained that US prohibitions against internet gambling were discriminatory and in breach of international trade agreements that require the US to allow foreign internet companies to offer their services to US citizens.

Friday, November 12, 2004

Cyber Cemetary

The CyberCemetery is a collaboration of the Government Printing Office and the University of North Texas Libraries, as part of the Federal Depository Library Program, to archive Web sites of defunct government agencies and commissions. The site is found at http://govinfo.library.unt.edu. Although keyword searching is not supported, sites are organized alphabetically as well as by category. Links take you to the Web sites as they last existed; the live links from the archived page are retained and can be navigated.

Stock Market -- Larry McMillan

Any thoughts that the bears might have been harboring about the effectiveness of this bullish market should be dashed by now. All of the major indices have either made new yearly highs or have broken out over major resistance. While there are some overbought conditions appearing, that is more or less normal for a new bullish phase, and we would recommend retaining this bullish outlook until actual sell signals occur -- not just overbought conditions.

$SPX is the leading index, and it has made new highs for the year. There is now support at various levels between 1045 and 1060. $OEX has not been as good a performer (too heavily weighted in MRK), but it too has performed well (figure 1). A clear-cut close above 560 would likely indicate that the index is ready to test its yearly highs in the 575 neighborhood. Meanwhile, QQQ and $NDX are already well on their way to challenging their own yearly highs (roughly 39 for QQQ and 1560 for $NDX).

The equity-only put-call ratios continue to be the most bullish indicators (figures 2 and 3). They are dropping rapidly, which is bullish. Moreover, neither one has reached the lower regions of its chart, where it might be considered "overbought." Hence these indicators will remain positive until they turn over and begin to rise something that is not likely at the current time.

Breadth has been strong all throughout this move that began just three weeks ago. As a result, breadth oscillators is deeply into overbought territory. That is not really a problem, though, as it is typical behavior for a new bull market.

Finally, volatility indices ($VIX and $VXO) are plunging towards new 8-year lows. The volatility "bulge" that had existed prior to the election is but a distant memory now. Low volatility readings are two-edged: one on hand, the market can be considered bullish as
long as $VIX is falling, but on the other hand, when $VIX is "too low," a market explosion lies on the horizon -- and since 2000, these explosions have tended to be on the downside (and at many other times in the past).

In summary, all indicators are on buy signals. Only $VIX and breadth are overbought, and that is not a major concern. It's unclear how far this market can run, but short-covering and "under-ownership" by mutual funds are major fuels for the bullish market now. What had
initially looked like it might be just a short-term move to the top of the trading range has now become a full-blown intermediate bull market and could easily carry into early next year (albeit I doubt at the current pace).

To receive the complete commentary plus reccomendations for only $29 visit here: http://www.optionstrategist.com/offers/strategist.htm

Note: Use the following link to view this week's charts: http://www.optionstrategist.com/products/advisories/hotline/charts.asp

Congressional Record -- daily edition to permanent edition

There may be very few libraries (if any) that have the Record with the
daily pagination back 24 years ago. To get the cite to the Bound edition
pages a little more information is required. By looking at the Daily Digest
of the bound edition for that date (for H pages look under House "Chamber
Action") one can usually determine the proper cite. For instance, if the
topic you want concerns the adoption of the conference report on S. 2475,
improving automobile fuel efficiency, than pages 28386-28388 are what you
need. There is no electronic version of the bound edition of the
Congressional Record. Lexis and Westlaw go back to 1985 (daily edition

Rick McKinney
Assistant Law Librarian
Federal Reserve Board
Washington, DC 20551

Friday, November 05, 2004

optionsXpress News

Spam Scam Lands 'Em in the Can

Computer-using Schadenfreudists rejoice! Today is your day.
Jeremy Jaynes of Raleigh, N.C., one of the Internet's top 10 spammers, according to watchdogs, was convicted in the first felony spam case -- just up the road from Fool HQ in Loudoun County, Va. He and his sister, Jessica DeGroot, were both found guilty by a jury that then recommended a jail term of nine years for Jaynes and a fine of $7,500 for DeGroot.

What's important here is the nature of the convictions: intentional spamming. Jaynes and DeGroot were convicted not for the alleged fraudulent nature of their millions of email solicitations -- Jaynes has amassed a reported fortune of $24 million hawking products like penny-stock pickers -- but for sending unsolicited junk and forging IP addresses to cover their tracks.

A defense attorney called the jail recommendation outrageous, claiming that conventional 'robbers and burglars don't get such a tough prison term.' Of course, he failed to point out that a gang of street thugs busting through windows to make off with TVs can't cost companies like Time Warner (NYSE: TWX), Microsoft (Nasdaq: MSFT), Apple (Nasdaq: AAPL), Yahoo! (Nasdaq: YHOO), and Google (Nasdaq: GOOG) millions of dollars per year in lost productivity and spam-reduction costs.

Jaynes is getting no worse than he deserves. If the defense wants an example of a really cruel and unusual sentence, how about tying Jaynes to a tree and letting a few dozen beleaguered Internet users have a little chat with him?

And while the Commonwealth of Virginia is said to be gearing up for more spam prosecutions, U.S. laws won't do much to stop the increasing flow of spam from foreign countries, like Nigeria's most famous export, the 419 scam. So enjoy this one while you can, folks. The fight against this billion-dollar nuisance is far from over.

For related Foolishness:

One guy makes the Nigerian scam pay off for him.
Can AOL save users from spam?
Or does Redmond have the answer?
Seth Jayson prefers his S.P.A.M. the old-fashioned way: roasted on a stick over a fire and eaten between layers of American cheese. At time of publication, he had no position in companies mentioned. View his stock holdings and Fool profile here.

About the Harry A. Blackmun Papers (Library of Congress, Manuscript Division): "About the Harry A. Blackmun Papers

Harry A. Blackmun was appointed to the Supreme Court in 1970 by Richard Nixon. In May 1997, Justice Blackmun gave his papers to the Library of Congress, where they joined the papers of thirty-eight other justices and chief justices in the Library of Congress. Because an individual's papers can best yield their riches when studied in conjunction with other related collections, Justice Blackmun's decision to place his papers in the Library of Congress should greatly facilitate historical research. At the time of the gift, Librarian of Congress James H. Billington stated, 'The papers of the justices are among our most treasured collections. Our holdings will be considerably enhanced by the Blackmun papers. We are honored that Justice Blackmun has placed his trust in the Library.'

The papers of Harry Andrew Blackmun (1908-1999), lawyer, judge, and associate justice of the United States Supreme Court, are housed in the Manuscript Division at the Library of Congress. The collection spans the years 1913-2001 with the bulk concentrated from 1959 to 1994. Although the papers chronicle almost every phase of Blackmun's judicial career, the bulk of the material highlights his service as a judge of the United States Court of Appeals for the Eighth Circuit, 1959-1970, and as an associate justice of the Supreme Court, 1970-1994. There are also a few items documenting Blackmun's early life as a student at Mechanic Arts High School in St. Paul, Minnesota, his undergraduate and law school studies at Harvard University, and his career as a lawyer in private practice and as resident counsel for the Mayo Clinic and Mayo Association. The Supreme Court File, 1970-1994, comprising over ninety-five percent of the collection, documents Blackmu"

Blackmun Papers

About the Harry A. Blackmun Papers (Library of Congress, Manuscript Division): "About the Harry A. Blackmun Papers

Harry A. Blackmun was appointed to the Supreme Court in 1970 by Richard Nixon. In May 1997, Justice Blackmun gave his papers to the Library of Congress, where they joined the papers of thirty-eight other justices and chief justices in the Library of Congress. Because an individual's papers can best yield their riches when studied in conjunction with other related collections, Justice Blackmun's decision to place his papers in the Library of Congress should greatly facilitate historical research. At the time of the gift, Librarian of Congress James H. Billington stated, 'The papers of the justices are among our most treasured collections. Our holdings will be considerably enhanced by the Blackmun papers. We are honored that Justice Blackmun has placed his trust in the Library.'

The papers of Harry Andrew Blackmun (1908-1999), lawyer, judge, and associate justice of the United States Supreme Court, are housed in the Manuscript Division at the Library of Congress. The collection spans the years 1913-2001 with the bulk concentrated from 1959 to 1994. Although the papers chronicle almost every phase of Blackmun's judicial career, the bulk of the material highlights his service as a judge of the United States Court of Appeals for the Eighth Circuit, 1959-1970, and as an associate justice of the Supreme Court, 1970-1994. There are also a few items documenting Blackmun's early life as a student at Mechanic Arts High School in St. Paul, Minnesota, his undergraduate and law school studies at Harvard University, and his career as a lawyer in private practice and as resident counsel for the Mayo Clinic and Mayo Association. The Supreme Court File, 1970-1994, comprising over ninety-five percent of the collection, documents Blackmun's twenty-four years of service as an associate justice.

The Blackmun Papers may be viewed in the Manuscript Reading Room at the Library of Congress. In anticipation of high research demand, selected materials from the collection have been digitized and made available at appointed computer workstations within the Library only. A detailed description of the Blackmun Papers is available in a finding aid prepared by the Manuscript Division and can be accessed from the Library’s web site at http://hdl.loc.gov/loc.mss/eadmss.ms003030.

Top Ten John Kerry Excuses

CBS | Late Show Top Ten Archive: November 03, 2004: "November 03, 2004

10. Voters were in a fever-induced haze because they couldn't get flu shots.
9. Floridians confused by shockingly unconfusing ballots.
8. Maybe it wasn't best idea to begin speeches with 'yo mama is so fat' jokes.
7. The endorsement from Osama Bin Laden didn't exactly help him.
6. 'Dude--it's the Curse of the Bambino.'
5. Should've campaigned more in New Mexico, less in regular Mexico.
4. Turns out voters think it's hot that Cheney has a lesbian daughter.
3. Thought America was ready for a lunatic first lady.
2. Voters seem to really like a weak economy and a badly-run war.
1. Was distracted by late night erotic phone calls from Bill O'Reilly."
Oxford and Cambridge Club - Home

Thursday, November 04, 2004


March 5, 2004


Friends for Decades, but Years on Court Left Them Strangers


ASHINGTON, March 4 — When Harry A. Blackmun was named to the Supreme Court, his mother warned that the appointment would change his relationship with Warren E. Burger, his friend since boyhood who had become chief justice the previous year.

Justice Blackmun, in an oral history, described his response: "Mother, it just can't. We've been friends for a long time."

" `Well, you wait and see,' " his mother replied.

"Of course, she knew Warren intimately," he told his interviewer, adding, "and she was wiser than I was."

For most of their lives, the two men from St. Paul had shared confidences, swapped advice and supported each other's ambitions. The dozens of letters that Justice Blackmun saved document a relationship of sometimes startling intimacy.

But, as his mother predicted, serving together on the nation's highest court did affect the friendship. In fact, their 16 years as Supreme Court colleagues left it shattered.

The private lives of Supreme Court justices are often hidden from public view. But Justice Blackmun's voluminous files, opened by the Library of Congress on Thursday, provide an inside look at the personal ties and tensions behind the bench.

During their last years on the court, it appears that Justice Blackmun and Chief Justice Burger barely spoke, communicating mostly through memos. Justice Blackmun's notes to himself, and his annotations on memos and draft opinions from the chief justice, show annoyance, even disdain. The best man at the Burgers' wedding six decades earlier, he did not attend Elvera Burger's funeral in 1994. By the end of their long lives, the two men had become strangers.

The sad dissolution of their friendship apparently had no single catalyst. Instead, Justice Blackmun's files, including a 1995 oral history, suggest that the rift resulted from a series of grievances, a clash of styles and a divergence of judicial philosophy.

Out of habit, perhaps, the two men continued sending birthday and anniversary greetings long after these had become ritualized reminders of a faded friendship. If they ever talked of what had been lost, Justice Blackmun left no record of it.

But he did hint at his feelings when Chief Justice Burger died in 1995. In a statement released by the court's public information office, he said, "His leaving instills a sensation of loneliness."

Long before the pair became known as the "Minnesota twins," a label Justice Blackmun greatly resented, they had grown up together, having met in kindergarten in St. Paul.

The finances of both families were meager. After graduating from high school in 1925, Mr. Burger sold insurance and took night classes, first at the University of Minnesota, then at the St. Paul College of Law. In 1931, he began practicing law and got involved in Republican politics.

Mr. Blackmun, meanwhile, won a scholarship to Harvard and worked at menial jobs to supplement his stipend. Harvard Law School came next, followed by a federal appeals court clerkship and law practice at a prominent Minneapolis firm.

'A Good Egg'

In one of the earliest letters in the collection, from 1929, Mr. Burger, then 21, adopts a paternalistic tone in advising "My Dear Harry" to go directly to law school rather than take time off to work and risk never continuing his education.

As he settled into his law practice during the 1930's, Mr. Blackmun briefly kept a journal, referring admiringly to Mr. Burger in the slang of the day. "He is a good egg," he wrote after noting that the Burgers were expecting a baby. On Thanksgiving Day in 1936, Mr. Blackmun recorded: "W.E.B. came over to hike a bit and let me unburden. He is a great scout."

With the two friends living in the same city for much of the next 20 years, their letter writing was suspended. In 1950, Mr. Blackmun left his law practice to become the resident general counsel at the Mayo Clinic in Rochester, Minn. Three years later, Mr. Burger left Minnesota to become an assistant attorney general in the Eisenhower administration.

Soon, Mr. Burger was appointed to the United States Court of Appeals for the District of Columbia Circuit. The transition to the life of a judge was not easy. The powerful D.C. Circuit was dominated by liberals, and his letters regularly described battles and voiced frustration as he often ended up on the losing side.

"We need a good visit, like two old Civil War gaffers," he wrote in early 1957. He said he wished he had "ordered my life so that I would be better qualified for this damned job. It takes some doing to do it right and I am not sure yet I have what it takes."

His letters to Mr. Blackmun over the years include many similar expressions of insecurity as the relationship between the men changed in subtle ways. Ambitious, volatile and sometimes emotionally needy, Judge Burger often reached out to his friend, seeking reassurance. Mr. Blackmun provided a sympathetic ear without joining in the debates that engaged Judge Burger or matching his invective.

Seeking relief from his court duties, Judge Burger tried in vain to persuade his friend to travel with him. "What do you say if Blackmun & Burger take off for a winter vacation — traveling light, i.e. without wives who so often abandon us?" he wrote in September 1958.

From December 1960: "What about a couple of weeks in the sun in Feb Mar or April? We need it!"

In April 1964, he lobbied for a trip to Palm Beach. As if in recognition that the elegant resort would strike his friend as too sybaritic, he offered an alternative in a postscript: "What about setting up a prison tour to Atlanta & somewhere else?"

By then, Mr. Blackmun, too, was a federal appeals court judge. He was named in 1959 to the United States Court of Appeals for the Eighth Circuit, which covers Minnesota and six other Midwestern states. Federal judges then earned about $30,000 a year, and with three daughters nearing college age, Judge Blackmun told Judge Burger that he was worried about money. "I deeply feel the need of a recess, even a short one, but I have yet to find out how one dares think of a Caribbean cruise on these lousy salaries," he wrote.

Judge Burger, already mentioned as a possible Supreme Court nominee, complained about the current justices in terms that were ever more shrill. "I'm getting so I don't read what these `phonies' on the S.Ct. write," he wrote in June 1961. "The horrible thing is that the Eisenhower appointees are doing most of the damage."

"Last Monday's effluvia of the Nine Great Minds is worse than most," Judge Burger wrote later. "As I watch this batch of mediocrities function I fear for the Republic. It would be hard to add up two total Supreme Court-caliber men out of the whole nine of them."

A Secret Hurt

The letters took a new tone in 1963, when Judge Burger, then 55, had some kind of an emotional crisis. The cause was unclear; the two men evidently had discussed the matter over the telephone.

"I do concede I ask too much of others," he wrote. "Not many are in this select club, but when they let me down I confess I am deeply, abnormally hurt & in these rare cases — or as to these few persons — it must, in the context, be a secret hurt."

He added: "I have my small private club of those who have never disappointed or let me down. Obviously you are one of the Charter members and in good standing even in your momentary `aberration' of refusing to join me in Holland. There are few to whom we `romantic idealists' can open up. You, too, are a `romantic idealist' with oak clusters!"

Judge Blackmun gently reassured him. "Of course, you are a romantic idealist and perhaps an incurable one and you always have been. You and I both are," he wrote. "We all have our frailties but you should never, never be concerned about yours. You have the corresponding strength which makes the presence of both features attractive and desirable."

Ever encouraging, he wrote after Lyndon Johnson's 1965 inauguration that Judge Burger should be president; his friend returned the compliment. Two years later, Judge Burger, complaining again about liberal judges, prompted a rare expression of political sentiment from his friend.

Naming Supreme Court Justices William O. Douglas and William J. Brennan Jr., along with the D.C. Circuit liberals, Judge Blackmun said, "They will smother the country, otherwise, and, in fact, seem to do pretty well along this line as it is."

Within three years, both men themselves were on the Supreme Court. The white-maned Burger, well-connected in Washington, was named to lead the court. The lesser-known Blackmun — considered an uncontroversial Midwestern conservative — soon followed.

On Oct. 12, 1970, Chief Justice Burger marked the beginning of Justice Blackmun's first term with a handwritten note:

"When we had those dreams of `doing it together' neither of us ever dreamed it would be this way or in this place. It was the practice we wanted.

"This is the first `real day' here and it is a baptism of fire few new Justices have experienced. For me it is the beginning of a great career for you — an association which, whatever the decisions, will be a source of constant strength to the Court, the country, and the C.J."

Justice Blackmun struggled that term, agonizing over decisions and laboring over opinions. When he proposed to describe a racial discrimination case in which he cast the deciding vote as "perhaps the most excruciatingly difficult case of the present term," the chief justice offered some strong advice.

"I am always uncomfortable — and I think most readers are — with our speaking too much of the difficulties of close cases," Chief Justice Burger said.

The camaraderie between the two continued through the mid-1970's. In the memos he circulated within the court, Justice Blackmun addressed his old friend as "Chief." But letters to "Dear Warren" still went to the Burger home in Arlington, Va. Justice Burger sent birthday greetings in November 1974 with the notation: "I'd hate to think about being here if we weren't both here."

"These have been great years," the chief justice wrote in June 1976 to mark the sixth anniversary of Justice Blackmun's arrival. "I'm glad you've been here. And anyway, there is no peace and quiet & if we must be in the storms & turmoil, it's more fun to be in the Big Storms! Many more."

From Friend to Adversary

But soon, the friendship was in peril. By June 1978, court relations were badly frayed. The chief justice's increasingly imperious management style and indecision about cases irritated his colleagues. Some grumbled privately that he lacked intellectual heft.

Earlier that spring, Justice Blackmun protested to the chief justice that he was not assigning him enough opinions to write. In a note, he said the few assignments "makes me feel somewhat humiliated not only personally, but publicly."

Justice Blackmun's clerks were writing comments on the chief justice's work in a disrespectful tone that could only have reflected signals from their boss. "Needless to say, I think the chief's comments on this case are ridiculous," one clerk noted on a memorandum from the chief justice in 1977.

Justice Blackmun's own notations were equally cutting. "A regular law review article!" he wrote sarcastically about comments the chief justice made about a draft opinion in 1978.

His notes of the chief justice's comments at one post-argument conference in 1979 began: "Talk talk." He marked a draft majority opinion that Burger circulated that year in a case concerning civil commitment to mental hospitals with a grade of "C-minus" and the comment "The expert in psych!"

He gave interviews to Scott Armstrong, co-author of "The Brethren," a 1979 best-seller about tensions inside the Burger court. Justice Blackmun's files disclose that he also authorized his clerks to talk to Mr. Armstrong.

His assessment of Chief Justice Burger's leadership is revealed by a note to himself from 1980: "The C.J. cannot control the conference," he wrote, using the justices' collective term for themselves.

Justice Blackmun's papers for that year include no personal correspondence between the two. While birthday and anniversary notes resumed after that, the files contain mainly press clippings about the chief justice, many unflattering.

Justice Blackmun wrote the court's 1977 decision that permitted lawyers to advertise, and he was clearly rankled by the chief justice's frequent denunciation of the practice as "sheer shysterism." He kept clippings of a Burger speech on the subject, and of a Washington Post editorial that criticized the speech.

In one landmark case, Justice Blackmun's files disclose, the chief justice had an extraordinary lapse: he not only did not vote, but failed to assign an opinion at all, necessitating a previously unexplained reargument the next term.

The case was Immigration and Naturalization Service v. Chadha, in which the court was asked to decide the constitutionality of the legislative veto. The device, attached over the preceding 50 years to some 200 federal statutes, enabled Congress to block an executive branch action by a vote of one or both houses, without the need to present a bill for the president's signature.

Chief Justice Burger's judicial instincts told him that this arrangement violated the constitutional separation of powers, as the opinion he eventually wrote the next year declared. But faced with the implications of striking down parts of 200 federal laws, he froze. His efforts to put off the issue provoked his colleagues, with Justice Blackmun perhaps the harshest critic. "We are here to decide cases," he wrote to Chief Justice Burger.

Perhaps deliberately echoing the chief justice's instruction to him years earlier, Justice Blackmun objected to Chief Justice Burger's description of the case in the proposed majority opinion as "sensitive and difficult." He threatened to write a concurring opinion describing the behind-the-scenes struggle over the case until the chief justice dropped the language.

There is no indication that the two exchanged personal notes when Chief Justice Burger retired in June 1986. The last reference to him was recorded in a "chronology of significant events" that Justice Blackmun maintained for each term. For June 25, 1995, the entry read: "W.E.B. dies."

A Visible Disappointment

That chronology probably offers as good an explanation of any about what happened, from Justice Blackmun's point of view, to kill the friendship. In the briefest of brush strokes, he depicts a pompous, self-important man who trampled on others' prerogatives.

"I place three cases for discussion, C.J. preempts all," one 1980 entry reads. After the presidential election that year, Blackmun recorded: "Reagan-Bush call on the Ct. C.J. takes over as usual in a big way." With the inauguration approaching, "C.J. `instructs' on proper inauguration wear. I say business suit w overcoat & robe." He added that Justice Byron R. White proposed a Pittsburgh Steelers cap `with earmuffs.' "

Soon after that, he recorded a slight to Associate Justice William H. Rehnquist, when the chief justice took over swearing in the White House staff. "W.H.R. tells me transition team had asked him to swear in W.H. staff Wed. a.m. He said he was on the bench the a.m. but could come after 3 p.m. They called back to say C.J. had preempted! He said he is furious."

If these complaints appear petty, their cumulative impact, like water dripping on stone, clearly eroded layers of affection built up over a lifetime.

Certainly the two diverged in their judicial views: in Justice Blackmun's first four years on the court, he voted with Chief Justice Burger 87.5 percent of the time in closely divided cases, but only 32.4 percent in the chief justice's last four years. But justices often maintain friendships across ideological lines. Mutually unrealistic expectations, perhaps, were more to blame for the rupture than differences over legal doctrine. While serving their country at the height of their careers, the two old friends painfully discovered that each was no longer the man he once had been.

Justice Blackmun suggested this in a brief memoir he left in his files. It was a brief tribute he wrote the year after Chief Justice Burger's death at the request of the law review of the William Mitchell College of Law, as the chief justice's alma mater had been renamed.

"I do not know what he expected, but surely he could not have anticipated that I would be an ideological clone," Justice Blackmun wrote. "He knew me better than that. But when disagreement came, his disappointment was evident and not concealed."

He then recounted his mother's prediction that the friendship would suffer, and concluded: "Warren Burger is gone now. He has put in his seventeen years of service and made his record. Evaluators will find it good, for he has contributed to the cause of justice in this country and to its dispensation. That is a large `plus' that the rest of us will be hard put to match.

"Eighty years is not only a lifetime. It is a particularly long lifetime. I was privileged to have shared most of it with him."

Research assistance for this article was provided by Francis J. Lorson.

Tuesday, November 02, 2004


The Revolution Will Be Posted

Published: November 2, 2004

Every four years, by journalistic if not political tradition, the presidential election must be accompanied by a "revolution." So what transformed politics this time around? The rise of the Web log, or blog. The commentary of bloggers - individuals or groups posting daily, hourly or second-by-second observations of and opinions on the campaign on their own Web sites - helped shape the 2004 race. The Op-Ed page asked bloggers from all points on the political spectrum to say what they thought was the most important event or moment of the campaign that, we hope, comes to an end today.
. . .

Ethical Limits for Patentability

Tuesday, November 2, 2004
ISSN 1535-5284

Intellectual Property
Ethical Limits for Patentability
Need to Be Defined, Professor Says

Today's "patent first, ask questions later" system has leaves no room for an inquiry into the morality of an issued patent, a law professor said Oct. 29 at Howard University School of Law's Second Annual Institute of Intellectual Property and Social Justice in Washington, D.C.
It should not be the job of patent examiners to define the limits of patentability for such morally controversial subject matter as cloned mammals and stem cells, she maintained.

The U.S. patent system lacks a dependable system of statutory and regulatory constraints to block ethically dubious patents before they issue, according to Margo Bagley, associate professor at Emory University School of Law, Atlanta. However, the issuance of patents on inventions in biotechnology and medicine inevitably prompts moral arguments, she noted, pointing the following:

- Patenting transgenic animals devalues life itself;
- Locking up certain medical processes with patents deprives patients of life-saving treatments;

- Allowing patents on human cloning presents the notion ownership of human organisms;

- Stem cell patents may issue even if the technology involves the destruction of a human embryo; and

- Patents proposed on human/animal mixes, or "chimeras," would degrade the human species.

Issue Brewing for Over Two Decades

Public controversy about the patenting of living things (other than plants) erupted almost 25 years ago with the Supreme Court's landmark decision in Diamond v. Chakrabarty, 447 U.S. 303, 206 USPQ 193 (1980) . That ruling overturned the PTO's refusal to grant a patent on an oil-eating bacterium used to control oil spills.
The debate picked up again in 1987 when the Board of Patent Appeals and Interferences decided Ex Parte Allen, which found claims directed to polyploid oysters to be statutory subject matter. See 2 USPQ2d 1425 (BPAI 1987). Shortly thereafter, then-PTO Commissioner Donald Quigg issued a notice that non-naturally occurring, non-human multicellular living organisms (including animals) are patentable subject matter under Section 101 of Title 35. See 1077 OG 24 (April 21, 1987). However, the Quigg notice included the following passage:

A claim directed to or including within its scope a human being will not be considered to be patentable subject matter under 35 USC 101. The grant of a limited, but exclusive property right in a human being is prohibited by the Constitution. Accordingly, it is suggested that any claim directed to a non-plant multicellular organism which would include a human being within its scope include the limitation "non-human" to avoid this ground of rejection.
In 1988, the PTO issued a patent on a transgenic mouse that was engineered to be susceptible to cancer, and that was followed by numerous congressional hearings and proposals for a moratorium on such patents. The position of the PTO in general was that its responsibility was to determine patentability under the statute, and that the public policy issues concerning the social acceptability of certain inventions were the province of other parts of the government.
A set of three mouse patents was issued in 1993, but the calls for moratoriums and the broader ethical debate over patents on life forms subsided until the PTO in 1998 issued a media advisory explaining that the public policy and morality aspects of the requirement that patentable inventions be "useful" under 35 USC 101 will, under certain circumstances, prevent a patent from issuing on inventions directed to human/non-human chimera.

The PTO statement was prompted by news reports about a patent application claiming a technique for combining human and animal embryo cells to produce a single animal-human embryo, or chimera. The patent applicant did not intend to produce such hybrids, but filed the application to reignite debate about the ethics of genetic engineering and the patenting of life forms. The PTO ultimately disallowed the application, finding no patentable subject matter under 35 U.S.C. §101 because the invention "embraced" a human being.

In 2002, the Center for Technology Assessment charged that a patent (6,211,429) issued in 2001 to the University of Missouri provided a technique for cloning human "embryos, fetuses and children." While the '429 patent was aimed principally at the production of transgenic pigs for organ transplantation, it included a more general claim directed at "a method for producing a cloned mammal." which the CTA said could include humans.

Attempting to rein in further expansions of patentable subject matter, President Bush in January signed into law a consolidated appropriations bill (H.R. 2673, Pub. L. No. 108-199) that contained a restriction against human patents. That language--dubbed the "Weldon Amendment" after its sponsor Rep. David Weldon (R-Fla.)--provides: "None of the funds appropriated or otherwise made available ... may be used to issue patents on claims directed to or encompassing a human organism." A similar rider appears in the pending 2005 appropriations legislation.

However, the PTO last August issued a patent (6,781,030) on methods for cloning mammals, including humans. The PTO later insisted that legislative language accompanying the Weldon amendment made clear that the '030 patent did not violate the constraints of that measure.

Other Countries More Restrictive

Bagley noted that the patent systems of other major developed countries include morality-based patent restrictions. The European Patent Office, for instance, declined in 1992 to issue a patent on Harvard University's transgenic "oncomouse" as morally offensive under the principle of the "ordre publique," Bagley noted. The Canadian Supreme Court followed suit in 2002, striking down a ruling that required that country's patent commissioner to issue a patent on the oncomouse.
A 1998 European Union directive contains an explicit exclusion from patentability for chimeras, Bagley noted, adding that the multinational TRIPS accord specifically allows morality based patent exclusions.

Who Should Decide?

Some might ask why it matters whether patents issue in potentially troubling technologies, since the research in those fields will go on nonetheless, Bagley observed. However, the principal purpose of patents is to promote research and innovation, she stressed, adding that research and patents are interrelated in that regard.
While the "patent first and ask questions later" policy has been with us for a long time, there once were morality requirements that precluded patents on devices that were used for gambling, deception, and fraud, Bagley said, pointing to an 1817 Supreme Court case.

Today, there are no such inquiries at the examination level, however, she said. She noted that the Federal Circuit in 1999 reversed a ruling that invalidated for lack of utility the patent on a juice dispenser that deceptively concealed the fact the beverage was mixed from a powder (185 F. 3d 1364, 51 USPQ2d 1700 (Fed. Cir. 1999). The court there declined to follow two early 20th century cases which found deceptive inventions unpatentable.

In Bagley's view, there are serious societal implications when patents issue on immoral or deceptive inventions. Yet under today's system, an applicant is entitled to a patent unless the examiner finds a reason to reject it, she noted.

With the presumption so decidedly in favor of the applicant, Bagley suggested, it is applicants (and scientists) who effectively determine what gets patented.

There are various options for reallocating that role, Bagley said, but each has its shortcomings. A statute-based morality restriction would be too rigid because concepts of morality are not static, she suggested.

Preferable, Bagley said, might be a more intermediate approach at the PTO level, including an additional assessment period for some patents, and the type of post-grant patent opposition system currently being contemplated.

Bagley would also like to see the resurrection of a deliberative body, like the now defunct Office of Technology Assessment, that would evaluate patents independent of the PTO process.

As for the Weldon amendment, Bagley said, "I applaud the effort," but there are definite drawbacks with that approach, including the following:

- The statutory proscription doesn't define "human;"

- The amendment is an appropriations measure that does not amend the patent statute or give any basis for rejection of immoral patents; it is only a one-year prohibition against funding the issuance of such patents; and

- The PTO's recent defense of the August mammal cloning patent demonstrates that the Weldon prohibitions do not forbid such process patents.

If the Weldon amendment is not renewed in future appropriations bills, Bagley cautioned, the PTO might be free under today's law to issue a patent for a cloned human fetus. In her view, it might be better for Congress to act first to clarify the limits of patentable subject matter, instead of leaving to a patent examiner the option of issuing such a patent.

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ISSN 1535-5284
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