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Saúl Litvinoff, R.I.P.

LSU Law Professor Saúl Litvinoff passed away yesterday. As noted in the LSU Law Center press release about this, Litvinoff was a true giant in the field of civil law scholarship.

Professor Emeritus and Boyd Professor of Law Saúl Litvinoff, whose impact on the legal traditions of Louisiana spanned more than 43 years, died earlier today. [click to continue…]

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Radical Patent Reform Is Not on the Way

My article “Radical Patent Reform Is Not on the Way” was published today (Oct. 1, 2009) in Mises Daily.

***

Hardly a day passes when we do not hear of one patent abuse or another.[1] Ridiculous patents are issued or filed and companies are enjoined from selling their products. Judgments are issued, and settlements reached, for billions of dollars. (See the Appendix for examples of ridiculous patents and outrageous judgments.) Not surprisingly, there is a growing demand for reform of our patent system.[2]

Whether their demands are modest or radical, the reformers share the belief that the patent system is broken; has gotten out of hand; and is not in sync with our fast-paced, high-tech, open-sourced, digitized world — in short, that it needs to be fixed.

FULL ARTICLE

[Mises crosspost]

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Tigers in Print

In the Fall 2009 issue of LSU Alumni Magazine, “Tigers in Print” section.

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KinsellaLaw re-launches…

After launching in 2002 as one of the first blawgs (see my July 23, 2003 post, Blawgs; also Blawgs: More Than Just Fluff, Corporate Counsel, March 2003;  Legal and Appellate Weblogs: What They Are, Why You Should Read Them, And Why You Should Consider Starting Your Own, Spring 2003), my blog went into substantial hibernation as I concentrated on my practice. Part of the reason was my increasingly-outdated web design.  I’ve now re-launched the blawg, with PJ Doland’s help, moving it from its 7-year old, now-outmoded PHP-based design to a modern, new WordPress design (using the Thesis theme–simple, plain, and elegant).

Stay tuned…

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From my post Book Recommendations: Private, International, and Common Law; Legal Theory on the Mises Blog:

A friend interested in law, legal theory, and possibly law school asked me for some recommendations for some good books (or articles, I suppose) that discuss private law systems, international law, the common law, etc.–with particular emphasis on explaining the common law’s or private law’s philosophical underpinnings.

I am drawing a blank on “the” book to read, since in my experience various interesting strands tend to be scattered across a wide array of books and articles; and moreover, most of the best stuff tends to be by mainstreamers or those with otherwise-flawed philosphical, political, or economic viewpoints. So you have to take what you can find here and there.

Here are some of my suggestions, most of which have a lot of implicit caveats:

[click to continue…]

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Plug (In) for a Buddy–contact management software

My friend Misty Khan has a good interview on Startup Houston about her company, Advena Artemis, and the launch of her software, HuntressPro. It’s an Outlook Add-in for sales contact management. It “provides contact management functionality such as call lists, referral source tracking and sales activity reporting”. Up to now she’s being doing customized versions of Huntress for customers, and is now releasing a downloadable software package with various optional plug-ins specific to various industries (e.g., for realtors). I know several customers of her earlier customized version in Houston and they all seem happy with it. (Competing products include ACT, etc., but Huntress has some advantages over it.) I’ve begun to experiment with it myself even though I’m not in sales, because it will be useful for some of the legal treatise editing work I do where I need to routinely contact or “touch” dozens of authors around the world for different phases of the publishing (initial contact; followup for due dates, etc.).

Still, though I’m finding a way to use it for my own non-sales need, HuntressPro is ideal for salespeople and sales teams who want to manage their follow-ups, contact information and sales activities directly from Outlook. It basically turns Outlook into a proper contact management software (what some people call “Customer Relationship Management,” or CRM). I highly recommend any sales professionals give this a gander.

If any of you know any salespeople or companies with sales forces that might benefit from this, feel free to pass this on. Check out the interview for more info.

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Hoffman Review of Rubins-Kinsella International Law Book

Latest review of my 2005 book International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, by Anne Hoffman, an international commercial and investment arbitration attorney with Python & Peter:

Book review

[by: Anne K. Hoffmann, Python & Peter; forthcoming in Arbitration International N° 3, 2007]

International Investment, Political Risk and Dispute Resolution – A Practitioner’s Guide by Noah Rubins and N. Stephan Kinsella. Published by Oceana Publications, a Division of Oxford University Press (2005), 769 pp. Price £90 [$155], ISBN 0-379-21522-5

The proliferation of arbitration proceedings conducted on the basis of BITs, and in particular the auspices of ICSID, naturally led to an increase of publications addressing this issue and the changing landscape of arbitration over the last years. Books dealing with this issue are often commentaries, basic introductions to the procedure of investment arbitration or reviews of investment awards.

The present book is different. It integrates the important issue of dispute resolution into the broader scope of international investment, explains the risks, in particular the political risk, associated with international investment and the legal framework of investment protection at large. It thus broadens the perspective of the reader and allows him to see beyond the everyday issues of the interpretation of the effect of an umbrella clause or the meaning of fair and equitable treatment in a BIT by placing these specific issues into a broader context and showing their interaction with others.
The book commences by analysing the role and effect of foreign direct investment on the global economy of the modern world. Thereafter, it is composed of three parts. Part I deals with the assessment and pre-investment management of political risk. Part II addresses the international law framework of investment protection and political risk and part III covers the issue of dispute resolution and political risk. Each of these three parts is subdivided into chapters and sub-chapters. When reading the first part, the reader, inter alia, is introduced to the various types of political risk and their measurement, is shown features which will help minimising the political risk, such as stabilisation and arbitration clauses as well as clauses guiding tribunals with regard to damages and interest rates. Lastly, he is familiarised with the various types of investment insurances existing. In part II, the authors explain the international law framework of investment protection and political risk, i.e. issues of international law in general, of state sovereignty, state responsibility and state immunity. The authors address the remedies for both states and investors under international law and their prerequisites before shedding some light on history and development of the customary international law of expropriation and investment protection, and thus those today often-used terms like indirect and creeping expropriation or national treatment. Finally, they deal with the substantive law of contemporary international investment protection. The lawyer who deals with investment arbitration will be familiar with this chapter as here – after introducing the network of modern bilateral and multilateral treaties – investment standards such as prohibition of expropriation without compensation, fair and equitable treatment, full protection and security, the umbrella clause, compensation methods etc. and their application are discussed. Lastly, in part III, the reader will be introduced to the jurisdictional particularities of investment arbitration, such as nationality requirements, exhaustion of local remedies or “forks in the road”, to the various arbitration rules relevant in this context as well as some of their prominent features. In the final chapters, the authors address the rather seldomly discussed topic of conciliation of investment disputes as well as the intervention of states in investment disputes. At the back, the book contains a variety of useful appendices, e.g. bilateral investment treaties of selected countries, an OPIC insurance contract, the Washington Convention as well as a compilation of online resources.

Thus, the first part of the book focuses mainly upon “practical” issues, namely on identifying political risk and reducing the chance that these risks will materialise. The second part addresses first general legal issues relevant to investments before focusing upon dispute resolution. It therefore is both a useful practical guide and competent source for newcomers and experienced practitioners alike in relation to international law and investment treaty arbitration where it explains general principles as well as concrete case law which has developed over the past years. Naturally, the book addresses the main cases which had an impact upon a certain issue, but will not discuss all cases decided in the context of investment arbitration – it is not a case commentary. Nevertheless, it contains vast footnotes which permit the interested reader to follow up on certain problems easily. At the same time, it explains to the practitioner less familiar with the running of an international arbitration proceeding the necessary steps from the notification of a dispute up to oral argument, including the difficult situation of the defaulting party – all of this with a view to the specificities of an ICSID arbitration and easier to access as other writings on this topic.

This book is not a lightweight and does not make for good bedtime-reading. Not being a classic law book, it is a guide which should find its place on the shelf of the person dealing with foreign investment who is interested to explore the various aspects of foreign investment and political risk in their broader context and with a particular emphasis on the legal aspects of this field. This will include, but not be limited to, the issue of dispute resolution. It is thereby well-suited for beginners in the area of investment arbitration attempting to find their way around a relatively new area of law as it covers the relevant issues comprehensively without getting lost in a degree of detail which will be the next step on the ladder of investment protection.

The authors described their goal as to write a guide which would “enable the investor to appreciate the risks associated with government interference in property rights, to minimize those risks and deal effectively with their consequences. But we also hope to promote understanding within host governments about investors’ expectations and concerns, to allow them to avoid conflict and maximize the benefits of foreign direct investment for their countries and constituencies.” The authors succeeded and thereby made a valuable contribution to exploring this topic.

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Yet another recent review/comment of my 2005 book International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, by Holly A. Lakatos, Director of Public Services, Chicago-Kent College of Law Library, from the March 1, 2006 Legal Information Alert. The blurb used by the publisher is:

An important resource for anyone who is trying to understand the uncertain balance between the needs of sovereign governments, the interests of investors, and international law constraints… This book is an excellent reference work and should be included in any library that claims to have a ‘good’ international business collection.

The full review is appended below (PDF version):

International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide. (Book review)

Publication: Legal Information Alert

Publication Date: 03/01/2006

Author: Lakatos, Holly A.

International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide. Noah Rubins & N. Stephan Kinsella. 2005. Oceana Publications, Inc. Hardcover. 769p. ISBN: 0-379-21522-5. $150.

[Note: This is an updated and expanded version of Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk, Paul Comeaux & N. Stephan Kinsella (Dobbs Ferry, New York: Oceana Publications, 1997), ISBN: 0-379-21371-0448.]

Today’s business lawyers need to have an awareness of political risk along with a firm foundation in international law in order to advise clients engaged in direct investments within developing nations. There is an uncertain balance among the needs of sovereign governments, the interests of investors, and international law constraints and anyone participating in such ventures must take this into consideration. International Investment, Political Risk, and Dispute Resolution is an important resource for anyone who is trying to understand that uncertain balance.

Divided into three parts, the authors of this guide provide methods by which attorneys may proactively minimize the exposure and effects of political risk at every step of the investment life cycle. They cover the issues from pre-investment management to the conciliation of investment disputes.

In part 1, the authors broadly divide political risk into seven different categories (expropriation, nationalization, and confiscation; regulatory interference; currency risk; civil disturbance; breach of state contracts; corruption; and trade restrictions) and discusses strategies for the “Assessment and Pre-investment Management of Political Risk.” Part 2 is intended to establish. “The International Framework of Investment Protection and Political Risk,” and here the authors trace the history and development of the customary international law of expropriation and investment protection. In part 3, they concentrate on “Dispute Resolution and Political Risk” and outline the arbitration procedure including how to establish arbitral jurisdiction.

The appendixes are substantial and include sample agreements, treaties, country risk reports, and a list of online resources. A Table of Authorities contains a valuable supplemental reading list of books and articles on the topic. Both the table of contents and the index are well thought-out and provide helpful access points to the information to be found in this book.

In the introduction, the authors claim that the book was written for a wide audience and that it will appeal to lawyers and non-lawyers alike. I cannot imagine any non-lawyer finding this book useful, especially since it does not contain a glossary. In addition, it is formatted as if it were a really, really long law review article with substantial footnotes on every page. Practicing attorneys, however, should find this guide accessible and easy to use. Law students will also find this guide useful as a supplement to any international business course.

The differences between the previous version and this one are substantial enough to warrant purchasing this new work. Though most of the same topics are covered, the new version covers them in much more depth. As an introduction to the topic, this book is an excellent reference work and should be included in any library that claims to have a “good” international business collection.

Holly A. Lakatos, Director of Public Services,
Illinois Institute of Technololgy,
Chicago-Kent College of Law Library

COPYRIGHT 2006 Alert Publications, Inc.

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Dissident Physics

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NSK Interview on Patents, by Taylor Conant

NSK Interview on Patents, by Taylor Conant

Update: link above is defunct; here is the original, from WayBackMachine:

APRIL 6, 2007

“Big Dig #3” – Patent Law

The following was an assignment, “Big Dig #3,” for a business journalism class. I researched the patent process and interviewed a patent attorney from Houston, Texas, Stephan Kinsella (his personal website is available here).

On November 28, 2006, the Supreme Court heard oral arguments in the KSR v. Teleflex patent case, a trial which could produce the most important ruling for patent law in forty years.

The case involves a dispute between KSR, a company which manufactures gas pedals that use an electronic signal rather than a mechanical cable to signal the engine, and Teleflex, a company which claims KSR has infringed a patent it was issued in 2001 for a similar technology. The dispute revolves around whether or not KSR’s system was an “obvious” integration of known technologies or not.

“The implications of this case to the patent system are huge. It could impact millions of U.S. patents currently in force and over 700,000 patent applications currently being examined by the PTO,” according to an interview conducted by PRNewswire.com of Robert Greene Sterne, a member of the counsel for KSR.

Patents, like trade secrets, trademarks and copyright, seek to protect “intellectual property,” or “IP.” Of the general IP category, only patents and trade secrets protect inventions.

According to Stephan Kinsella, a patent attorney from Houston, Texas, there are four criteria the United States Patent and Trademark Office (or PTO), use when judging whether or not an invention is patentable—statutory subject matter, utility, novelty and non-obviousness.

“Basically you can patent machines and processes that produce a useful result, so that’s the first one, and utility means it just has to do something useful,” says Kinsella.

So, based on the first two criteria, drugs are in (potentially make you healthier), while nuclear bombs and perpetual motion machines are out (nukes can only do harm or disutility, while perpetual motion machines are impossible according to the laws of thermodynamics).

“Novelty means it has to be new, and that’s usually pretty easy to overcome,” Kinsella continues. “But then you have to ask yourself if it’s an obvious difference or a non-obvious difference, and in most other parts of the world this is called the ‘inventive step.’”

So, by way of example, Kinsella says patenting the use of an LCD panel with a computer would not be a possibility because it is already obvious that you would use a display device with a computer, even though and LCD is new in comparison to a standard CRT monitor.

As the Supreme Court case shows, and as Mr. Kinsella emphasizes, obviousness – or lack thereof – is the central issue of patent law being debated these days. And the spread of the Internet and electronic goods will serve only to further complicate the patent system in that regard.

“About five years ago, Amazon got an injunction against Barnes and Noble to stop their one-click—they had a patent on clicking once on the basket to buy something as opposed to clicking twice,” says Kinsella, recounting a key moment in the growth of e-commerce. “It’s ridiculous, utterly ridiculous… Barnes and Noble is lagging behind now and I don’t know if that’s why, but it’s possible.”

According to Kinsella, there may even be a kind of populist revolt against the concept of IP by consumers who are increasingly frustrated by restrictions on the way they use their electronic media and information technologies.

“I believe there is a growing hostility towards IP in general, at least among Gen-X and the tech people,” Kinsella says, citing the examples of the RIAA, Disney and the recent Blackberry patent suit in which the company was forced to pay hundreds of millions of dollars to another company which claimed Blackberry had violated one of its patents. “There is an increasing fear a lot of small companies are in of patent infringement when they’re just trying to do business.”

That’s a concern worth taking seriously—after all, the patent system is predicated on the belief that the limited-monopolies granted by it incentivize creativity and create a net benefit for the economy. But if the arbitrariness of the patent system leads to exponentially-increasing costs, the economic usefulness of the system might need to be reexamined.

“If you really take seriously the idea that anyone who comes up with an idea has some property right in it, it either has to be definite or infinite. If it’s infinite, the human race probably would’ve died out a long time ago, because no one would be able to use the wheel, or fire or build a house without getting permission,” says Kinsella. “Therefore, the only way to make them work is to define their duration, but then you run into the problem of arbitrariness—twenty years for a patent, seventy-five years for a copyright, ten year renewable terms for trademarks.”

Until the time comes for Mr. Kinsella’s ideal system which only respects trade secrets and trademarks, he and others concerned with the patent system will just have to cheer on the right outcome in court cases such as KBR v. Teleflex. Depending on the way the ruling goes, that case could result in a striking down of current notions regarding “secondary conditions of non-obviousness,” which Kinsella views as currently helping to promote the arbitrariness of the patent system which is responsible for situations like the Amazon one-click patent.

According to the industry blog PatentlyO.com, Justice Scalia has already hinted that a conclusion in the case has been reached, saying, “I know how that one comes out, but I’m not going to tell you.”

Stephan Kinsella has his fingers crossed.

POSTED BY THE OWNER AT 2:43 PM 

1 COMMENTS:

cowbot said…
Well written. Thanks.I’ve written a refutation of ‘intellectual property’ based on austrian praxeological method here:

http://phreadom.blogspot.com/2008/05/intellectual-property-is-fiction.html

The very nature of reality indicates that the idea opens a path towards harm.

MAY 14, 2008 1:19:00 AM EST
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