"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Sunday, August 13, 2017

The European Court of Justice Rules Torrent Site Pirate Bay Infringes Copyrights

We are a bit late on this important intellectual property court case decision in Europe, as the European Court of Justice has ruled that torrent site Pirate Bay infringes copyrights.

The case will probably harken the end of provider sites that knowingly enable media pirating by torrent streaming or otherwise.

See The Guardian at
https://www.theguardian.com/technology/2017/jun/15/pirate-bay-european-court-of-justice-rules-infringing-copyright-torrent-sites

Monday, August 07, 2017

Preseason College Football Ratings & Rankings NCAA Division I FBS 2017-2018 by SportPundit

Preseason College Football Ratings & Rankings NCAA Division I FBS 2017-2018 by SportPundit

Our preseason college football ratings and rankings for the 130 teams now in NCAA Division I FBS 2017-2018 are based primarily on our final college football rankings for the 2016-2017 college football season, as made after the completion of the bowl games and playoff games.

Past seasons show that position changes in team rankings from one season to the next are not that great on average, although there are always exceptions, and that keeps it interesting.

Our system is based on net average yards per play stats, which we calibrate primarily by adjusting for schedule difficulty. Other adjustments can also be made (*=adjustment). We take the cumulative yards per play stat data from cfbstats.com or college and university football athletic pages online, as linked below for each team.

Caveat emptor (Buyer beware): We make this material available in good fun out of interest for the sport of college football. Please do not rely on our material to place bets or wagers of any kind. No one knows the exact outcome of a game or a season before it is played and that is what makes it so interesting. We disclaim any and all liability for the consequences of anyone relying in any way upon our postings, analysis, links or reasoning -- for which we make no warranty of accuracy. May the best team win.

Preseason College Football Rankings FBS 2017-2018 by SportPundit
Column 1Column 2Column 3Column 4Column 5Column 6Column 7Column 8
Preseason RANKING 2017-2018 by Sport Pundit TEAM
Name
NAYPPA= net average yards per play advantage offense over defense, 2016-2017, stats from cfbstats.com (our calculation) yards per play offense via cfbstats.
com

2016-
2017
yards
per play
defense
via cfbstats.
com

2016-
2017
2016-2017
Schedule difficulty based on Massey Ratings, Sagarin,
& our ratings of average rank of opponents
x 3 / 100 is deducted from NAYPPA (*=adjusted)
Won-loss record (W-L) for the past 2016-2017 season - with 0.2 rating points deducted
per loss)
Post-Bowl 2016
-2017 Team Rating
by
Sport Pundit
1Alabama2.56.473.9940***14-1+1.1
2Clemson1.66.194.6310***14-1+1.1
3Ohio State1.76.024.3620*11-2+0.7
4Michigan1.65.854.2120*10-3+0.4
5USC1.06.405.380***10-3+0.4
6Washington2.26.834.6150*12-2+0.3
7Penn State1.56.505.0420*11-3+0.3
8Wisconsin0.55.454.920***11-3+0.3
9LSU 2.06.714.7630*8-4+0.3
10Oklahoma1.77.545.8535*11-2+0.3
11Louisville2.57.214.6955*9-4+0.0
12Florida State1.2 6.455.2720*10-3+0.0
13Stanford0.45.775.350***10-3-0.2
14Auburn1.16.135.0710**8-5-0.2
15Florida0.55.194.660***9-4-0.3
16Tennessee0.66.445.8420*9-4-0.8
17Washington State0.16.116.040***8-5-0.9
18Pittsburgh0.76.715.9820*8-5-0.9
19Texas A&M0.86.375.5525*8-5-0.9
20Virginia Tech0.75.734.9925*10-4-0.9
21North Carolina1.36.645.3740*8-5-0.9
22Miami (Florida)1.76.434.7560***9-4-0.9
23Oklahoma State0.86.735.9340*10-3-1.0
24Georgia Tech0.86.535.7640*9-4-1.2
25West Virginia0.96.425.5650*10-3-1.2
26Kansas State0.05.745.7715***9-4-1.2
27Iowa0.15.205.1110***8-5-1.2
28Colorado0.75.544.8735*10-4-1.2
29San Diego State1.66.484.9080*11-3-1.4
30Houston0.55.324.8040*9-4-1.5
31South Florida1.37.175.8280**11-2-1.5
32Georgia0.25.445.2625*8-5-1.5
33Western Michigan0.86.665.8270*13-1-1.5
34Northwestern-0.15.265.4010*7-6-1.6
35North Carolina State0.65.755.1335*7-6-1.6
36Western Kentucky 2.57.655.20120*11-3-1.7
37Temple1.45.994.6480*10-4-1.8
38Utah0.25.785.5640*9-4-1.8
39Arkansas-0.76.036.750***7-6-1.8
40Mississippi0.06.166.1815***5-7-1.8
41Boise State1.66.845.2095***10-3-1.9
42BYU-0.15.435.5235***9-4-1.9
43UCLA0.65.434.8630*4-8-1.9
44TCU0.66.085.5140*6-7 -2.0
45Indiana0.55.595.0940*6-7-2.0
46Michigan State0.15.645.5310*3-9-2.0
47Tulsa0.76.155.4770*10-3-2.0
48Appalachian State 1.16.134.9985*10-3-2.0
49Toledo1.47.205.8190*9-4-2.1
50Nebraska-0.25.365.5340*9-4-2.2
51California-0.85.956.710*5-7-2.2
52Notre Dame0.76.075.4045*4-8-2.2
53Minnesota0.45.244.8260*9-4-2.2
54Texas0.35.905.6340*5-7-2.3
55Oregon0.26.616.4130**4-8-2.3
56Kentucky0.26.266.0845*7-6-2.3
57Mississippi State-0.26.076.2435*6-7-2.3
58 Memphis0.56.255.7765*8-5-2.4
59South Carolina-0.55.155.6215*6-7-2.4
60Louisiana Tech1.77.515.79105*9-5-2.4
61Texas Tech-0.56.527.0520*5-7-2.5
62Baylor 0.76.135.4365*7-6 -2.5
63Air Force0.26.025.7970*10-3-2.5
64Troy0.75.725.0585*10-3-2.5
65Navy0.56.826.3465*9-5-2.5
66Boston College-0.74.425.0925*7-6-2.6
67Wake Forest-0.84.575.3320*7-6-2.6
68Wyoming-0.56.056.5930*8-6-2.6
69Colorado State0.66.686.1170*7-6-2.7
70Arkansas State0.45.374.9970*8-5-2.7
71UCF-0.14.684.7840*6-7-2.7
72Oregon State-0.25.525.7630*4-8-2.7
73Iowa State-0.1 5.915.9730*3-9-2.8
74Missouri0.36.346.0750*4-8-2.8
75 Vanderbilt-0.75.195.9025*6-7-2.8
76Maryland-0.15.615.6745*6-7-2.8
77Arizona0.06.086.1035**3-9-2.9
78Miami (Ohio)0.45.675.2470*6-7-3.1
79Northern Illinois0.15.865.7960*5-7-3.1
80Idaho (last season at FBS level) -0.65.616.2460***9-4-3.2
81New Mexico0.66.856.29100*9-4-3.2
82Illinois-0.25.325.5440*3-9-3.2
83SMU-0.55.496.0045*5-7-3.2
84Ohio0.35.475.1380*8-6-3.3
85Old Dominion1.06.415.41120*10-3-3.2
86Arizona State-1.95.217.070*5-7-3.3
87Duke-1.15.156.2920*4-8-3.3
88Middle Tennessee1.56.925.47130*8-5-3.4
89Syracuse-1.55.456.9110**4-8-3.4
90Eastern Michigan 0.15.925.8475*7-6-3.4
91Utah State0.55.695.2370*3-9-3.4
92Virginia-1.54.866.330**2-10-3.5
93Army (West Point)0.85.895.09110*8-5-3.5
94Central Michigan0.15.805.7480*6-7-3.7
95East Carolina-0.56.006.4550*3-9-3.8
96Purdue-1.15.116.2230*3-9-3.8
97Akron-0.15.996.0580*5-7-3.8
98South Alabama 0.15.735.6385*6-7-3.9
99Cincinnati-0.15.285.3475*4-8-3.9
100Southern Miss0.36.015.71100*7-6-3.9
101UNLV0.15.955.8785*4-8-4.0
102Ball State-0.75.646.3855*4-8-4.0
103Tulane-0.54.835.3655*4-8-4.0
104Georgia State 0.45.314.9185*3-9-4.0
105UTSA -0.35.385.6975*6-7-4.0
106Hawaii-0.45.996.3875*7-7-4.0
107Georgia Southern-0.75.245.9465*5-7-4.0
108Bowling Green-1.25.136.3240***4-8-4.0
109Rice-2.35.167.43***3-9-4.1
110Rutgers-2.24.136.350**2-10-4.2
111Kent State-0.44.855.2165*3-9-4.2
112Kansas-1.14.966.0440*2-10-4.3
113San Jose State-1.15.336.4855*4-8-4.3
114Louisiana Lafayette -0.35.005.3085*6-7-4.3
115Nevada-1.15.536.6360*5-7-4.3
116UMass-0.85.336.1355*2-10-4.4
117UTEP-0.16.026.1290**4-8-4.4
118New Mexico State (final season in the Sun Belt Conference)-1.15.446.5655*3-9-4.5
119North Texas -1.05.086.0765***5-8-4.5
120UConn-0.94.815.7260*3-9-4.5
121Buffalo-0.85.165.9265*2-10-4.7
122Florida International FIU-0.95.436.3475*4-8-4.7
123Charlotte -1.14.926.0365*4-8-4.7
124Marshall-1.35.046.3555*3-9-4.7
125Louisiana Monroe-1.55.116.6560*4-8-4.9
126Florida Atlantic FAU-1.25.706.9165*3-9-4.9
127Fresno State-1.04.685.7255*1-11-4.9
128Texas State-1.94.316.19***2-10-4.9
129Coastal Carolina (bowl eligible only starting the 2018 season)0.85.85.1175*10-2-4.9
130UAB -(Blazers back starting this season after a 2-year absence)------------

Monday, July 31, 2017

What Happens When Congress Tries to Play President and Conduct Foreign Policy

What happens when the "locally-elected" representatives of the U.S. Congress try to break out of their provincial hamlets and -- Walter-Mitty-like -- attempt to enter the big stage of international affairs to play President and to conduct foreign policy?

The immediate result, as we see from news reports, is the quick souring of world politics on an unprecedented scale, even among allied nations. See the BBC News piece at Russia's Putin orders 755 US diplomatic staff to be cut.

Nothing the Trump administration may have done wrong in the last six months compares in stupidity with this inexcusable Congressional overreaching of its Constitutional legislative powers, which are normally subject to the doctrine of the "separation of powers" that marks the executive, judicial and legislative branches.

Without ANY probative evidence that the Russian government actually interfered in the past U.S. Presidential election, Congress has usurped the President's  Constitutional duties and has decided to go ahead with stiff retaliatory sanctions against Russia anyway -- usurping thereby the foreign policy sphere of the President -- and even threatening U.S. allies in THEIR economic relations with Russia if they do not toe the U.S. Congressional line.

Normally, the President makes foreign policy, not locally-elected foreign-policy-clueless local State representatives.

No sane nation conducts foreign policy through parliaments... and for good reason not. So, what now? Another Act of Congress in retaliation ... etc. etc.? Surely the people in Congress jest!

This Congressional usurpation is all the more difficult to understand given the widespread ignorance among voters and their locally-elected State representatives about all things foreign.

In the USA generally, try finding any news beyond even greatly limited local happenings on your local TV channels or radio stations. The rest of the world is mostly invisible somewhere "out there".

As one U.S. cashier in the dark fields of the republic said to a customer (true story): "Y'all talk funny. Where ya from?" Answer: "London". Reply: " Is that near England?"

That and similar knowledge gaps are not a good information basis for foreign affairs. And that is why parliaments are not responsible for foreign policy.

Sunday, July 30, 2017

Eight Rules for Life and Law Happiness

Lana BirBrair @HarvardLaw comments on a lecture by the Bruce Bromley Professor of Law John Manning in the "Last Lectures" series -- To be happy lawyers (and human beings), eight rules for law students to live by.

Useful! and well worth a read.

Saturday, July 15, 2017

From Scrolls to Wax Tablets to the Codex to the Book to the Modern Digital Tablet

Look at the image below. Look familiar?

The paged "codex" was the forerunner of the modern "book",
which developed from the use of "wax tablets" in ancient days,
ultimately replacing the more ancient "scrolls".

Given the contemporary phenomenon of the digital tablet or notebook viz. laptop, many a disciple of modern hardware and "tablet patents" or similar would be surprised to discover that the "wax tablet" with stylus was already popular in Ancient Greece, as shown in the image below, dating the folding wax tablet to at least 500 B.C.

What is new under the Sun?



Staatliche Museen Berlin, Preußischer Kulturbesitz, Antikensammlung F 2285

For more, see DelanceyPlace.com
and its excerpt from
Mark Kurlansky Paper: Paging Through History



Friday, July 14, 2017

Stanford Law School Faculty Take On Recent Key U.S. Supreme Court Decisions

"Stanford Law School faculty members offer commentary on key SCOTUS decisions from the 2016 term (most issued in spring 2017), offering critical analysis."

U.S. Supreme Court Justice Anthony Kennedy and the Age at which Judges Should Step Down From the Bench

Should judges serve for a life tenure or should they step down at e.g. age 80?

Nonagenarian Carl Reiner, age 95, in his New York Times piece titled Justice Kennedy, Don’t Retire, urges U.S. Supreme Court Justice Anthony Kennedy, who turns 81 on July 23, and who is reportedly considering retirement,
to stick with it.

Contrarily, Debra Cassens Weiss at the ABA Journal reports on the opinion of Judge Posner, age 78, who suggests that judges should step down at age 80.
See 'No need for octogenarians' on the bench, including those on the Supreme Court, Posner says.

Hat tip to CaryGEE.


Saturday, July 08, 2017

U.S. Supreme Court Chief Justice Roberts Places Experience Above Success for Students

What a marvelous read about U.S. Supreme Court Chief Justice Roberts this is!

If you have ever doubted that Chief Justice Roberts lacks wisdom, think again!

Read Debra Cassens Weiss at the ABA Journal in Chief Justice Roberts tells students he hopes they will experience challenges rather than success.

It is an interesting commentary on how we obtain wisdom through experience.

Peter Robert Haje in Memoriam - A Brilliant Mind, A "Born" Lawyer, A Great Guy

Peter Robert Haje in Memoriam
- A Brilliant Mind, A "Born" Lawyer, A Great Guy

Peter (Pete) Robert Haje, age 82, born July 31, 1934, passed away on July 2, 2017 in New York City. See the New York Times obituary.

The photograph below was taken in New York City in the year 1995 at the Helmsley Palace (recently renamed Lotte New York Palace). When built, it was the tallest hotel in New York City.

Peter Haje at the time of the photograph was Executive Vice President and General Counsel of Time Warner Inc.

Peter Haje is in the middle of the photograph below (copyright Andis Kaulins), flanked by Andis Kaulins and Michael Rohrdrommel, who were on their way from Germany to California to meet with Sam Tramiel of Atari to try to negotiate a contract for distribution in Germany of the Atari Jaguar, a home video game console. One must recall, coincidentally, that Jack Tramiel had purchased the Atari consumer division of Atari, Inc. from Warner Communications.


Peter had invited us for a friendly lunchtime chat at the Helmsley Palace after we had visited him in the executive offices at Time Warner headquarters in Rockefeller Center.

Peter had been a mentor to Andis Kaulins, the LawPundit, during the LawPundit's tenure as an associate at Paul, Weiss, Rifkind, Wharton & Garrison, and "Pete" remained a dear friend for many years, even after the LawPundit moved to Europe and to other disciplines and projects.

As written in the title of this posting, the LawPundit regarded Peter Haje to be a brilliant mind, a "born" lawyer, and a great guy.
 
Thank you, Peter, for having been an important part of my life.

Rest in peace.

Sunday, July 02, 2017

Patent Trolls, Venue Shopping and the U.S. Supreme Court's Landmark Decision in TC Heartland v. Kraft Foods Group Brands

At the ABA Journal Supreme Court Report, Mark Walsh gives us a nice analysis of the very important patent case
TC Heartland v. Kraft Foods Group Brands
in Supreme Court makes venue shopping harder for patent trolls.

We already posted at LawPundit in May about the decision of the Supreme Court of the United States (SCOTUS) on the case in question in
U.S. Supreme Court Unanimously Reverses Long-Standing Lax Federal Circuit Patent Venue Rule.

Walsh refers to Stanford Law School intellectual property expert Professor Mark A. Lemley, who calls the Heartland decision SCOTUS's "most important patent ruling" since the Supreme's 2014 decision in the patent eligibility case of Alice Corp. v. CLS Bank International ("what is patentable subject matter").

Take a look at Supreme Court Reins In Patent Venue by Dennis Crouch at Patently O for an interesting United States map of patent venues prior to
TC Heartland LLC v. Kraft Foods Group Brands LLC. Change was necessary!


Friday, June 30, 2017

Fed Up With Google Search and Standard Browsers? How About Yahoo Search and Ecosia? What About Maxthon MX5 or the Pale Moon Browser YOUR WAY

Power corrupts and absolute power corrupts absolutely.

We have grown frustrated with newer Google Search algorithms which seem to produce more and more first page search results that we do not want and which appear geared to the lowest common denominator of interest, or perhaps to ad money, we do not know.

To our surprise -- in fact, thinking recently that the demise of Yahoo was imminent -- we have now run several subjective, personal and non-disclosable search tests with various search engines and have found to our amazement that Yahoo Search currently appears to deliver what we subjectively call "better" viz. "more relevant" search results in numerous cases -- at least for the topics in which we have an interest....

You may of course not share that view.

However, we are switching away from Google Search as perhaps having hit its peak and now possibly finding itself sliding downhill in terms of performance.

Also the "green" search engine Ecosia, "Plant trees while you search the web", appears to be quite good in returning useful search results -- results that appear similar to Yahoo Search, so we are going to give Ecosia some search action in the future. Try it out.

Fed up with the increasingly invasive practices of the standard browsers, we have also just tried out Maxthon MX5 as an alternative fast, secure and ad-free browser.

It looks good.

We nevertheless remain fans of the Pale Moon browser which bills itself as "Your browser, Your way". Pale Moon was forked some years ago from Firefox and retains the original genius of Mozilla Firefox, which was that the USER -- not the programmers -- should decide how the browser was to function, a laudable goal long lost at Mozilla Firefox.

Pale Moon has numerous features that we need, such as the ability to place TABS below the URL line and just above the pages we are viewing. What WE are doing has FIRST PRIORITY on OUR screen, not what other people are doing. Our interest is online research the way WE want it, and not speed surfing, or similar....

Thursday, June 29, 2017

Stanford University Wins 23rd Straight NCAA Division I Learfield Directors' Cup as the Top Collegiate Athletic Program

Stanford University has won the NCAA Division I Learfield Directors' Cup
(see final 2016-2017 standings)
as the top collegiate athletic program for an incredible 23rd straight year, a record of excellence which remains as amazing as the record amazingly is.

In Division I, Ohio State finished 2nd, Florida 3rd, USC 4th, North Carolina 5th, Michigan 6th, Texas 7th, Penn State 8th, Oregon 9th and Kentucky 10th, just edging out UCLA 11th and Texas A&M 12th (the 12th Man!).

Grand Valley State of Allendale, Michigan won the NCAA Division II title for the third straight year, Williams College of Williamstown, Massachusetts won the NCAA Division III title for the fourth straight year, while Lindsey Wilson College of Columbia, Kentucky won the NAIA title.

Saturday, June 24, 2017

The DF-Models.com "Drive-Fly" 9300 SkyWatcher Pocket Racer Camera Drone with Controller and WIFI via VS FPV App

This not an ad, just our report about a pocket-size camera mini-drone of the new generation.

At Mueller.de in Germany for a reduced price of €69.99 we just acquired the DF-Models.com "Drive-Fly" 9300 SkyWatcher Pocket Racer Camera Drone with Controller (+ WIFI smartphone control via the VS FPV Android app (Google Play)).

See https://shop.mueller.de/spielwaren/alle-kategorien/verkehr-action/drive-fly-skywatcher-pocket-racer-wifi-rtf-fpv-2159710

The SkyWatcher Pocket Racer quadrocopter can be ordered online but must be picked up at a Mueller.de general market store of choice (toy department). For us, it was a shopping deal for obtaining at a bargain price one of the new generation of camera "mini-drones".

For comparison, the SkyWatcher Pocket Racer is listed by a shop in Amazon.de at a price of ca. €108 (plus free delivery).

Here are the specs via online material in the original German as well as our edited version of the Google translation:

"Drive & Fly - SkyWatcher Pocket Racer - WiFi - RTF - FPV
  • Klappbarer „Selfie-Copter“, steuerbar per Controller oder Smartphone.
  • Videos oder Fotos können per WiFi-Übertragung auf das Smartphone gespeichert werden.
  • Automatische Start-/ Landefunktion und Höhenstabilisierung.
  • 2,4 GHz Controller, Flugzeit ca. 8 Minuten, 100 % RTF Akkus und Zubehör inklusive (Es wird kein weiteres Zubehör benötigt!).
  • Arme eingeklappt Hosentaschenformat 135 x 66 x 31 mm
Lieferumfang:
  • SkyWatcher Pocket Racer - RTF
  • Flugakku 3,7 Volt – 500mAh
  • Fernsteuerung inkl. Akku
  • USB Lader (2)
  • Ersatzrotorblätter (4)
  • Anleitung
  • Window-Box
Technische Daten:
  • Antrieb: 4x brushed Motor
  • Länge: 135 mm
  • Breite: 66 mm
  • Höhe: 31 mm
  • Kamera mit FPV WiFi Modul"

English translation via Google translate (edited by us):

"Drive & Fly - SkyWatcher Pocket Racer - WiFi - RTF - FPV
  • Foldable "Selfie-Copter", controllable via controller or smartphone.
  • Videos or photos can be saved to the smartphone via WiFi transmission.
  • Automatic start / land function and altitude stabilization.
  • 2.4 GHz controller, flight time approx. 8 minutes, 100% RTF batteries and accessories included (No additional accessories needed!). Folded state, pants pocket format 135 x 66 x 31 mm
Delivery includes:
  • SkyWatcher Pocket Racer - RTF
  • Flight battery 3.7V - 500mAh
  • Remote control including battery
  • USB charger (2)
  • Spare rotor blades (4)
  • manual
  • Window box
Technical specifications:
  • Drive: 4x brushed motor
  • Length: 135 mm
  • Width: 66 mm
  • Height: 31 mm
  • Camera with FPV WiFi module"
Thus far, in our opinion, this beats the competition as regards quality and price. However, we make no statements or guarantees about drone performance or suitability to purpose.

Caveat emptor. Buyer beware.

After all, this is a toy.... but nevertheless potentially dangerous, especially to children (and adults!) of all ages, due to freely open, otherwise unprotected fast-spinning rotor blades as well as the use of lithium batteries. You have to read the manual (!), follow its instructions and know what you are doing!!

Wednesday, June 21, 2017

Trump Administration Apprenticeship Initiative Reminds of Germany's Fabulously Successful Apprentice Programs

Germany's apprentice programs are fabulously successful. The Trump Administration's apprenticeship initiative makes great sense given the example of the German model. See the report at Forbes. This is one way the Trump Administration is surely moving America forward.

Friday, June 16, 2017

Gender-Based Citizenship Rule in the Immigration and Nationality Act of 1952 Unanimously Declared Unconstitutional by the U.S. Supreme Court as a Denial of Equality Under the Law

This unanimous U.S. Supreme Court decision (8-0) in an opinion written by Justice Ruth Bader Ginsburg, an expert on gender equality law, is a sign of the political, legal and social contemporary times. The decision is also a matter of clear judicial logic and decisionmaking regarding the issue presented,
which was
the constitutionality of the different treatment of citizenship of children born overseas, based on whether the unwed parent was the father or the mother.

SCOTUS ruled that Congress must enact a law treating both genders equally as regards the citizenship of children born overseas to unwed parents.

See the reports e.g. at:




Debra Cassens Weiss at the ABA Journal in
SCOTUS strikes down citizenship law because of different treatment based on parent's gender

Lydia Wheeler at The Hill in
Supreme Court strikes down gender-based citizenship law

Lawrence Hurley at Reuters in
Supreme Court invalidates gender inequality in citizenship law

As written by the Associated Press and as published at the New York times in
Justices Strike Down Gender Differences in Citizenship Law
about the Justice Ginsburg opinion in the case:

"Ginsburg said the law was based on flawed and outdated assumptions about men and women that pervaded the country's citizenship laws: "In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child."

For close to a half century, she [Ginsburg] said, the court "has viewed with suspicion laws that rely on overbroad generalizations about the different talents, capacities or preferences of males and females." Ginsburg said the gender line Congress drew "is incompatible with the Constitution's guarantee of the equal protection of the laws to all persons.""




Thursday, June 15, 2017

Freedom of Sexual Choice as a Driving Force of the Growth of Human Civilization

We dare say that ornithologist Richard Prum's take on the role of sexual choice in the development of various animal species as well as the growth of human civilization may tell us more about the state of the present violently confused world than the most learned political, legal, social, economic, or religious treatises. Source: http://m.spiegel.de/international/ornithologist-richard-prum-on-duck-sex-and-human-evolution-a-1151217.html#ref=nl-international

Is Brexit Now Gone Before it Really Started?

Is Brexit now gone before it ever really started?
Some people think so.
See the Spiegel.

Tuesday, June 13, 2017

Stanford Law School Number One Says ATL

Above the Law:

"We’ve made a list that tells you that Stanford Law School is the best school."

...but the list is by declaration not "woke", so do look up the alternative definition of "woke" online....

... in the spirit that "research" is the soul of learning....

Thursday, June 08, 2017

U.S. Supreme Court Rules on First Sale and Patent Exhaustion Doctrines

We previously posted at Law Pundit about Impression Products, Inc. v. Lexmark International, Inc.: U.S. Supreme Court Oral Arguments: First Sale and the Patent Exhaustion Doctrine

and

First Sale and the Patent Exhaustion Doctrine in the Resale and Use of Printer Ink Cartridges

The (virtually) unanimous 8-0, 7-1 May 30, 2017 decision of the U.S. Supreme Court in a landmark opinion written by Chief Justice Roberts holds that the patent exhaustion doctrine applies to all products sold, domestically and abroad (Ginsburg dissenting on the latter), and that patents can thus not be used to circumvent the first sale doctrine.

Our previous analysis was thus once again proven correct, as it has been for many years in predicting U.S. Supreme Court reversals of what we have regarded to be clearly erroneous Federal Circuit Court decisions in the patent sphere.

For a detailed analysis of this eminently important patent case, see Patently-O: Impression v. Lexmark: Patent Rights Exhausted by Sale, Domestic or Abroad.

The "international" patent rule voiced here by the Supreme Court follows the same general and inexorable legal logic applied regarding the limitation on copyrights expressed in Kirtsaeng v. Wiley, 568 U.S. 519, 133 S. Ct. 1351 (2013).

Sunday, May 28, 2017

This is GOVERNMENT?

Andrew Klavan on the ongoing investigations of our otherwise government do-nothings.
https://m.youtube.com/watch?time_continue=87&v=6F0Hv9TUrfs

Tuesday, May 23, 2017

U.S. Supreme Court Unanimously Reverses Long-Standing Lax Federal Circuit Patent Venue Rule

The U.S. Supreme Court continues its -- clearly necessary -- reshaping of a patent law landscape that long ago passed the limits of common sense.

Justices rein in Federal Circuit’s lax rules on patent venue
is the headline at SCOTUSblog in an article by Ronald Mann
regarding the May 22, 2017 U.S. Supreme Court reversal
of the  Federal Circuit's long-standing lax rule on patent venue,
a clearly impossible rule which had for many years led patent holders
to engage in widespread and undesirable patent forum shopping
in the nation's courts.

Justice Clarence Thomas wrote the opinion for a unanimous 8-0 Court
(Justice Gorsuch did not participate since he joined the Court
after oral argument on the case had already been held). 

See a summary of the holding at TC Heartland LLC v. Kraft Foods Group Brands LLC.

Monday, May 22, 2017

Net Neutrality in Danger

Updated on 22 May, 2017

As political centrists -- swing voters who decide elections -- our non-partisan views sometimes find us siding with Republicans, sometimes with Democrats, sometimes with Independents, and sometimes with none of these.

For example, we find the controversy over Trump and the Russians to be an unnecessary, deplorable media-created tempest in a teapot about nothing of consequence, as Trump rightly says, a politically-motivated witch hunt.

By contrast, however, we are very much on the other side of the political fence as concerns the Trump-administration's apparent decision -- a stupid one in our view -- to try to topple Net Neutrality.

Greedy institutions and people are trying to torpedo the existing long-standing standard of Net Neutrality -- which benefits us all -- and instead to bring to the World Wide Web the same flawed system of discriminatory privilege that marks the cable television industry.

See in this regard TechCrunch at

"An open letter to everyone who uses the internet"

at these links

https://t.co/iqLj7Bg0Cz
https://t.co/TyFOYzZ8uH
https://twitter.com/TechCrunch/status/865409965271404544

Share that TechCrunch post with more networks via http://ow.ly/L5ux100G7KK

Sunday, May 14, 2017

Salvador Sobral Wins First Ever Eurovision Song Contest Crown for Portugal in the World's Most Popular Live Non-Sports Entertainment Show

As reported at The Portugal News Online, Portugal's largest circulation English language newspaper,

Portugal's Salvador Sobral won the 2017 Eurovision Song Contest in Kiev with the song Amar pelos dois ("Loving for the two of us"), written by his sister Louisa Sobral.

The annual competition was televised live and also You-Tube streamed to hundreds of millions of viewers across the globe as the world's reigning most popular live non-sports entertainment show. Bulgaria came in second, Moldova third, our personal favorite Belgium fourth, and Sweden fifth.

It was Portugal's first ever win since entering the Eurovision Song Contest competition in 1964.

In 1956, the first year of the contest, there were seven participating countries -- in 2017 there were 42 participants. As written at the Wikipedia under Eurovision_Song_Contest:

"In the 1950s, as a war-torn Europe rebuilt itself, the European Broadcasting Union (EBU)—based in Switzerland—set up an ad hoc committee to search for ways of bringing together the countries of the EBU around a "light entertainment programme". At a committee meeting held in Monaco in January 1955 with Marcel Bezençon of the Swiss television as chairman, the committee conceived the idea (initially proposed by Sergio Pugliese of the Italian television RAI) of an international song contest where countries would participate in one television programme to be transmitted simultaneously to all countries of the union. The competition was based upon the existing Sanremo Music Festival held in Italy and was seen as a technological experiment in live television, as in those days it was a very ambitious project to join many countries together in a wide-area international network. Satellite television did not exist, and the Eurovision Network comprised a terrestrial microwave network. The concept, then known as "Eurovision Grand Prix", was approved by the EBU General Assembly in a meeting held in Rome on 19 October 1955, and it was decided that the first contest would take place in spring 1956 in Lugano, Switzerland. The name "Eurovision" was first used in relation to the EBU's network by British journalist George Campey in the London Evening Standard in 1951."

The Eurovision Song Contest has many supporters and viewers but also detractors, the latter of whom seem to expect a perfection of competition that is simply not realistic.

The Eurovision Song Contest may not be perfect -- surely everyone can agree on that point -- but it beats alternative forms of competition among nations -- need we mention wars -- by a long shot. Given a choice, we take ... MUSIC!


Saturday, May 13, 2017

Blanche ("Ellie Delvaux") -- Sings "City Lights" for Belgium in the May 13, 2017 Eurovision Song Contest Final - We Find It the Best Song This Year, But Can Blanche Win?

Our own personal favorite in the Eurovision 2017 Song Contest Final on May 13, 2017 in Kiev is the unique, world-class song "City Lights" as sung by Ellie Delvaux -- going here as "Blanche" -- for Belgium. "City Lights" is a listener's playlist delight. Do yourself a favor and listen to it twice .... it grows on you.

We find it to be the best song in the competition, but can Blanche win enough votes to win, as it will be hard to overcome traditional Eurovision Song Contest powerhouses from past years such as Sweden, which has won six times, lastly in 2012 and 2015, and goes into this final with one of the semifinal winners from the same semifinal in which Belgium was 4th place.

However, since "City Lights" is a song that grows on you, it should be more competitive in the final voting as voters will have had a chance to get familiar with the song in the interim -- which can only increase its chances of winning.

There are other fine entries in the competition as well of course, such as favorites from Italy, Portugal, Bulgaria and the United Kingdom, but we always look for a song with that extra "something". This year, "City Lights" has that "something" for us.

Saturday, May 06, 2017

Stemming Museum Attendance Decline and Bringing the World of Artifacts and Exhibits of the Past into the Modern Era

Events of the present are just as integrally tied to the past, as the future is tied to the here and now.

But getting people interested in the world of yesterday is much more difficult than motivating them to look to the future, even though both are equally important to an appreciation of human life on Earth.

It is therefore of considerable concern that museum attendance in the USA in the digital age, especially among young people, has been declining strongly over the last decades. Young people particularly are losing their connection to their human heritage.

Efforts are underway at various institutions to stem that tide. After all, to know where you are, and to successfully arrive at where you are going, it is advisable to know where you have been.

The Verge in an article by Nikki Erlick at 20,000-year-old artifacts, 21st century technology reports that "Museums are turning to virtual reality, apps, and interactive experiences to keep tech-savvy visitors engaged."

Take a look.

Friday, May 05, 2017

LawPundit is Approaching One Million Visitors viz. "Hits"

LawPundit is approaching one million visitors viz. "Hits".
It looks likely that we will have to get a new web counter
to permit us to go beyond our six-place present one.

Thursday, May 04, 2017

New EU European Union GDPR General Data Protection Regulation Goes Into Effect in Two Weeks on May 18, 2017

The new, stricter European Union (EU) General Data Protection Regulation (GDPR) goes Into effect in two weeks on May 18, 2017 as Germany, for example, rewrites its own new Federal Data Protection Act as a result.

See for example the reports at Out-Law.com at New German data protection laws passed by Bundestag as part of GDPR preparations, as business organizations e.g. will in the future be required to appoint a "data protection officer".

Saturday, April 29, 2017

Revised Decipherment of the Cerutti Mastodon Bone of California, USA

We have revised our initial decipherment of the Cerutti Mastodon Bone -- not by changing any of our illustrative markings or identified cupmarks, but differently interpreting those cupmarks and lines, putting Virgo and Leo higher up in the image, and in the lower part of the image adding Hydra, Corvus, Crux, the Large Magellanic Cloud, Carina, Vela and Canopus in Puppis.

We also now identify a bird and its corresponding cupmarks in the upper left as Cygnus and below it a triangular form as Aquila.

Below is the resulting NEW REVISED decipherment, which we have labelled "May, 2017" to keep it separate from the previous "April, 2017" decipherment, even though both are separated by only one day at the end of April. Usually, we do not publish decipherments immediately, knowing that revisions may be necessary, but here we wanted to get the work out quickly.

We have also corrected the spelling of Cerutti, which is not two R's and one T but rather vice versa....






Thursday, April 27, 2017

The Cerutti Mastodon Bone of California, USA as Astronomy ca. 6000-4000 B.C. perhaps by People of Haplogroup X (mtDNA)

Please Note: The sky map decipherment below was revised in part by Andis Kaulins two days later at http://lawpundit.blogspot.com/2017/04/revised-decipherment-of-cerutti.html, adding more star identifications and changing the position of Virgo and Leo to be higher up above the underworld of stars.
_______________

Archaeology and related professions suffer from their tendency to opt for a self-serving myopic assessment of the available evidence, too often without sober consultation of what "science" might call "good common sense".

When we take the evidence of genetic studies into account, then mankind migrated out of Africa no earlier than about 60000 B.C. according to the Map of Human Migration, National Geographic. Note that we reject and do not use the confusing and allegedly "politically correct" BCE and BPE labels, which are artificial ill-constructed academic notations with little practical value.

ANYONE, no matter what their academic credentials, suggesting the discovery of prehistoric human or human-like locations and/or artifacts outside of Africa that fall far much earlier than that date of 60000 B.C. -- when faced with the genetic evidence -- is likely to have made a colossal dating error in setting the chronology. That may be the case for the Cerutti Mastodon bone.

We have pointed out the above wisdom repeatedly over the years, most recently in our posting Bruniquel Cave "Ring" Construction in France Represents a Sky Map, But it is Not 176000 Years Old and Likely Not Constructed by Neanderthals.

We now are confronted with a report in the New York Times headlined Humans Lived in North America 130,000 Years Ago, Study Claims, reporting on a study -- published in the purportedly reputable peer-reviewed science journal Nature -- whose editors and reviewers need to start to do their homework -- titled A 130,000-year-old archaeological site in southern California, USA.

We are not going to go into any assessment of the radiometric procedures used in dating the Bone from the Cerutti Mastodon (CM) site in question, because it is not necessary, as there is no proof that the carvers of the bone broke the bone into pieces, as the writers of the article allege.

Rather, an old broken mastodon bone from an earlier age was arguably found and carved at some later time -- indeed, based on our dating below, probably carved by the still mysterious, but surely then seafaring people of Haplogroup X (mtDNA), who spread their astronomy in the New World at that time.

The New York Times article by Carl Zimmer writes:

"The bold and fiercely disputed claim, published in the journal Nature, is based on a study of mastodon bones discovered near San Diego.....

Some experts were intrigued by the research, but many archaeologists strongly criticized it, saying the evidence didn’t come close to supporting such a profound conclusion."

The key to this mastodon bone is not only the correct interpretation of the carved wavy lines, but also a host of other carvings and cupmarks on the bone. We can explain the wavy lines, as a bonus of our decipherment.

Anyone who thinks that he has seen all the carving on the mastodon bone when he or she has merely noted the wavy lines on it -- the easy part -- is greatly mistaken. We are reminded of Albert Einstein's famous phrase, that "I have little patience with scientists who take a board of wood, look for its thinnest part, and drill a great number of holes where drilling is easy."

There are numerous things carved on the bone, and we present simple and interpreted illustrations below of the lines and cupmarks made on the bone, all of which -- in our decipherment -- are astronomical in nature -- i.e. they represent "stargazing" in ancient times, we estimate ca. 6000 to 4000 B.C. with the stars near the Autumn Equinox to the left of the bone illustration as seen below and the stars near to the Spring Equinox to the right of the bone, as one is looking at the bone and as presented in the illustrations below. The Summer Solstice is then at the stars of Virgo (the main middle figure)

The head of Leo is to the right and can be viewed as either a human head or the head of a cat-like or dog-like creature. Behind that to the left is the head of human female with the wavy lines surely representing the watery underworld toward the southern stars of Centaurus, Lupus etc.

Marked at the left are the stars of Sagittarius and Scorpio, both near the galactic centre, as marked by heads of the deceased, since the ancients believed the souls of the deceased returned there. See my many postings on Avebury Henge and Stonehenge in the last year for an explanation.

Groupings of stars that are represented on the Cerutti Mastodon Bone may not in ancient days have been exactly comparable to our own modern constellations of course, but decipherment experience shows that the ancients adopted similar groupings, based on the brightest stars in the heavens.

Below is our decipherment of the Cerutti Mastodon Bone based on Letter to Nature 544, 479–483, 27 April 2017, doi:10.1038/nature22065 and the image reproduced in the New York Times article cited above.

Decipherment by Andis Kaulins, Traben-Trarbach, April, 2017:


The entire matter is rather elementary -- once one understands that the ancients carved mastodon and similar bones like this for important reasons such as astronomy, calendration and perhaps other shamanistic endeavors.

Saturday, April 22, 2017

Andis Kaulins Twitter Tweet Activity

We are paying more attention to our Twitter presence, which is now approaching 6000 tweets.

Andis Kaulins LinkedIn Profile Updated

We have updated our LinkedIn profile.

Friday, April 21, 2017

A Return to Culture: The Fashion Style of America's First Lady Forecasts the Societal Trends

Melania Trump, America's First Lady, is featured by Caroline Leaper, Fashion News and Features Editor at The Telegraph, in 'A modern take on femininity and elegance': designer Alice Roi reveals the story behind Melania Trump's First Lady look.

What are the general trends that we might forecast for the near future?
For those, we looked to art in its broadest definition.

Trends in 2017 have been suggested at the linked websites as follows in fashion (femininity), art (reconnection with nature), visual design (return to organic roots, uncompromising clarity), interior design (vintage looks made modern), literature (Norse mythology), theatre (quality) and music (streaming and vinyl, nostalgia). These can serve as forecasting or parallel signals of coming or existing trends in politics and society generally.

One might conclude that the trends have a definite direction and are found also in various "law and order" developments in law and politics worldwide.


Monday, April 17, 2017

The International Law Firm "Paul, Weiss" Continues to Add to its Storied History of Excellence

The law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP
(shortened as "Paul, Weiss", "Paul, Weiss et al." or "Paul|Weiss")
continues to win awards and gain recognition in the legal sphere in 2017.
See that link.

Paul|Weiss is an international "Big Law" firm of attorneys headquartered in New York City with offices in New York, Beijing, Hong Kong, London, Tokyo, Toronto, Washington, D.C. and Wilmington, Delaware.

Having been a summer associate and associate in the corporate department of the firm in New York City, the LawPundit was gratified to read that US News - Best Lawyers had named Paul, Weiss, Rifkind, Wharton & Garrison LLP
the Corporate Law Firm of the Year in 2016.

Paul, Weiss et al. has a long, unique and storied history extending far beyond corporate law, so that recognition for legal excellence is nothing new.

For example, as written at that history:

"Each of the three women serving on the U.S. Supreme Court in 2016 began her career as a summer associate at Paul, Weiss."

Take a look at the quite amazing history of the firm.




LawPundit Internet Gateways via World Route

We tried out the World Route software program by SoftPerfect network management solutions in order to discover the path taken when readers access the LawPundit blog at Blogspot.

At Discover the path of your Internet data they write:

"With the World Route tool you can easily find out what gateways your data goes through and how fast it travels. You will receive comprehensive route details, with each city and country conveniently marked on the map. Simply enter any IP-address or website and see the path network packets take to that destination."

Here was the route taken when accessing the LawPundit blog Easter, 2017 (clip from World Route - click on the image for a larger version of the graphic):


For comparison, here was the route taken when accessing the LawPundit blog in November, 2016 (clip from World Route - click on the image for a larger version of the graphic):


The round trip times were 19ms and 21ms (ms=milliseconds). Pretty quick!

Saturday, April 15, 2017

Chief Justice Roberts: Politically Partisan U.S. Supreme Court Confirmation Battles are Short-Term Thinking contrary to the Actual Long-Term Judicial Realities

Speaking of short-term vs. long-term thinking, U.S. Supreme Court Justice John G. Roberts recently made some cogent comments reported at the ABA Journal by Debra Cassens Weiss in her article Chief justice says partisan confirmation battles create 'real danger' for Supreme Court.

Roberts addresses the problem of short-term thinking applied to the Supreme Court, when long-term Court execution of responsibilities is a judicial reality in which knock-down, drag-out partisanship has little place.

Weiss writes: "Roberts said the justices serve together for a long time, and they have to get along. “Knock-down, drag-out fights” over a big case would interfere with the relationship, he said. “It’s kind of like a marriage, right?” he said. “You hope it goes on for a long time and can’t sort of have every fight be a huge fight.”"[emphasis added by LawPundit]

Futurist Ari Wallach at TED.com on Decision-Making and Long-Term Planning Tactics in Business and Society

Decision-making and tactics for long-term planning are discussed by futurist Ari Wallach at TED.com in Ari Wallach: 3 ways to plan for the (very) long term.

Rather than thinking just short-term, Ari identifies three long-term "tactics" we might consider following to get better results than we have been getting:
  • 1) transgenerational thinking (looking at things in terms of lifespans)
  • 2) futures thinking (Ari says "we've abdicated the future from the high priests in Rome to the high priests of Silicon Valley"), and
  • 3) telos thinking (stopping to think about "to what end" is it all?).

Friday, April 14, 2017

Big Data Conferences in 2017 Listed at Disruptor Daily

Disruptor Daily has a list of Big Data Conferences taking place in 2017.

The Return of the Blackberry? A Nearly $1 Billion Arbitration Award Against Qualcomm May Help

The Return of the BlackBerry?

Pinsent Masons has the story at Out-Law.com in BlackBerry awarded $814.9 million royalty refund from Qualcomm

Will Increased "Big Data" Knowledge Dominate Decision-Making in the World of the Future?

At Forbes.com, Bernard Marr writes in The Complete Beginner's Guide To Big Data In 2017 that the future of the world will be forged increasingly through the use and application of "Big Data" to decision-making.

What does "Big Data" mean?

Marr writes:

"Big Data works on the principle that the more you know about anything or any situation, the more reliably you can gain new insights and make predictions about what will happen in the future. By comparing more data points, relationships will begin to emerge that were previously hidden, and these relationships will enable us to learn and inform our decisions."

Is Marr right?

Does increased "Big Data" knowledge mean power?

The future will tell us.


Thursday, April 13, 2017

Nebraska Bowls and Real Bowling

Bowls? Football?

Husker football national championships since Ozzie retired are a distant past. It's the coaching, folks.

But there are "other" sports.

How about recent Cornhusker national championships and the "real" bowling at Nebraska?

The Husker women's team bowling coach might give the Big Red football coaching staff some pointers on achieving excellence and success in becoming champions again.

Tuesday, April 11, 2017

Saturday, April 08, 2017

The Incredible Life of William T. Coleman Jr.: A Black Man Who Was a Real Hero in the Fields of Law and Politics

There are few lives and careers so massively filled with impressive achievements as the life of William Thaddeus Coleman, Jr., who passed away on March 31, 2017 as the oldest then still living former Cabinet member.

Just read the obituary of William T. Coleman Jr. by Dennis Hevesi at the New York Times.

Coleman's life is celebrated at the Paul, Weiss Alumni Network at LinkedIn -- of which I am a member as a former Paul, Weiss associate -- via Brian Sogol, Alumni Manager at Paul, Weiss, Rifkind, Wharton & Garrison LLP, who quotes current Paul, Weiss Chairman Brad Karp as follows:

Bill graduated #1 from Harvard Law School in 1946, served as the first African-American editor of the Harvard Law Review, and clerked for Supreme Court Justice Felix Frankfurter (alongside Eliot Richardson).

Bill tried to land a law firm associate position in his home town of Philadelphia, but was rejected by every law firm at which he interviewed. Through a serendipitous encounter with then-Paul, Weiss associate (and later a respected federal district judge and dean of both Yale Law School and Penn Law School) Louis Pollack, Bill was introduced to Louis Weiss, interviewed at Paul, Weiss and was offered a litigation associate position. Bill commuted daily from Philadelphia to Paul, Weiss's New York office for three years (1949-1952). While at Paul, Weiss, Bill worked with Thurgood Marshall on the historic Brown v Board of Education matter, ultimately leaving the firm to join the NAACP to fight full time for racial justice. Bill spent the next 65 years breaking down barrier upon barrier.


Hevesi at the New York Times writes about Coleman inter alia as follows:

"His memoir, “Counsel for the Situation,” was written with Mr. Bliss and had a foreword by Justice Stephen Breyer. In it, Mr. Coleman reflected on his own life and on the American legal system, and paid tribute to the people who had influenced him — blacks and whites, Republicans and Democrats.

“They shared the strong conviction,” he wrote, “that individual talent, brilliance and effort can and will change the course of history.
”" [emphasis added by LawPundit]

__________
As noted in an April 3, 2017 correction at the New York Times to set the "small detail" facts exactly straight: "An earlier version of this obituary misstated the year Mr. Coleman graduated from Harvard Law School. It was 1946, not 1947. It also attributed a distinction to him erroneously. He was not the first black member of the Harvard Law Review; Charles Hamilton Houston had served on the board in the early 20th century. And the branch of the service that Mr. Coleman joined was rendered incorrectly. It was the Army Air Forces, not the Army Air Corps.



Friday, April 07, 2017

Study of U.S. Supreme Court Shows Skewed Gender-Based Interruptions of Justices

At the ABA Journal, Debra Cassens Weiss reports that Interruptions of female justices has increased with their representation on SCOTUS, study finds.

That research finding has made a lasting impression on us.

Gentlemen! Let's stop interrupting the ladies.

Neil Gorsuch Confirmed by the American Senate as U.S. Supreme Court Justice

Neil Gorsuch has been confirmed by the American Senate as U.S. Supreme Court Justice, filling the seat vacated by the passing in 2016 of Justice Antonin Scalia.

See inter alia:
Gorsuch has an outstanding legal track record and was rightly confirmed -- in our opinion, although we disagree with Gorsuch on some fundamental issues of jurisprudence -- especially his adherence to the artificial dogma-like "crutch" of originalism.

Judges cannot be merely "parrots of the past". More is required.

Henry Ford would today not build a car the exact same way he did in the original days of the automobile. Things do change over time. Nothing stays the same. Law is no different. Law is a seamless "living" web that accommodates itself to the changing world as required.

There is no doubt that Gorsuch is well-qualified as a judge per se, so that we hope that his Supreme Court job responsibilities will lead him to adopt a broader view of the U.S. Constitution as he matures in his Supreme Court seat.

Gorsuch will turn only 50 on August 29, so he may have many years of judging ahead of him yet. Perhaps he will surprise us positively as time goes on.
 
Senate Republicans and three moderate Democratic Senators voted in favor of Gorsuch:

Senator Joe Donnelly of Indiana
Senator Heidi Heitkamp of North Dakota, and
Joe Manchin III of West Virginia.

Tuesday, April 04, 2017

Impression Products, Inc. v. Lexmark International, Inc.: U.S. Supreme Court Oral Arguments: First Sale and the Patent Exhaustion Doctrine

The United States Supreme Court on March 21, 2017 held oral arguments on the first sale patent exhaustion case Impression Products, Inc. v. Lexmark International, Inc., which we previously discussed at First Sale and the Patent Exhaustion Doctrine in the Resale and Use of Printer Ink Cartridges.

The issue presented is formulated by the Supreme Court:

"15-1189 IMPRESSION PRODUCTS, INC. V. LEXMARK INTERNATIONAL, INC.
DECISION BELOW: 816 F.3d 721
LOWER COURT CASE NUMBER: 2014-1617, 2014-1619
 

QUESTION PRESENTED:
 

The "patent exhaustion doctrine"-also known as the "first sale doctrine"-holds that "the initial authorized sale of a patented item terminates all patent rights to that item." Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008). This case presents two questions of great practical significance regarding the scope of this doctrine on which the en banc Federal Circuit divided below:
1. Whether a "conditional sale" that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law's infringement remedy.
2. Whether, in light of this Court's holding in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1363 (2013), that the common law doctrine barring restraints on alienation that is the basis of exhaustion doctrine "makes no geographical distinctions," a sale of a patented article-authorized by the U.S. patentee-that takes place outside of the United States exhausts the U.S. patent rights in that article.
 

CERT. GRANTED 12/2/2016"

The main question in this case is reflected by the precedent-based reluctance of the U.S. Supreme Court to support the alienation of chattels in commerce, here the first sale patent exhaustion doctrine, a legal issue that goes back hundreds of years to common law and Lord Coke (who has retained his name over the centuries in spite of modern oft overreaching intellectual property protection of generic and name terms):

We think that Justice Breyer's comments during oral argument in the above-cited case represent what the Supreme Court will likely decide on the main issue, based on the logic of Breyer's arguments [here excerpted by LawPundit]:

"JUSTICE BREYER: What about Justice Kennedy's question? I mean, Lord Coke had that very question in mind, I think, that -- that one of the problems with restraints in alienation of chattel is that the buyer may not know, and -- and moreover, it stops competition among buyers. Those are the basic two things that have led that as a kind of underlying principle.
...
Then why don't you require the person who sells it to just resell it with the requirement that they promise not to, you know, whatever it is?
...
[O]ne of the reasons that it's hard to get away with that is the antitrust laws in the contract area. And another reason is because Lord Coke said 300 years ago, you know, it's -- you get into a lot of trouble when you start trying to restrict this buyer who's got the widget and he would like to use it as he wishes. Now, that's been the kind of basic legal principle for an awfully long time.
...
There ... are all kinds of exceptions.

But to go back to your basic point underlying this, of course, any monopolist, including a patent monopolist, would love to be able to go to each buyer separately and extract from each buyer and user the maximum amount he would pay for that particular item.

Dentists would pay more for gold perhaps than someone who wants to use gold for some other thing. Okay? They'd like that.

But by and large, that's forbidden under many laws, even though it does mean slightly restricted output, and it also means a lower profit for the monopolist.

All right. Now, it's against that background that I think the law and economics professors, who are telling what is correct, that -- and the argument that you're making has to be evaluated. That's what I think on the first part.

All this precedent is very hard for you to get around. And I'm not talking about just Lord Coke; I'm talking about the Supreme Court precedent."

Most Popular Posts of All Time

Sky Earth Native America

Sky Earth Native America 1 :
American Indian Rock Art Petroglyphs Pictographs
Cave Paintings Earthworks & Mounds as Land Survey & Astronomy
,
Volume 1, Edition 2, 266 pages, by Andis Kaulins.

  • Sky Earth Native America 2 :
    American Indian Rock Art Petroglyphs Pictographs
    Cave Paintings Earthworks & Mounds as Land Survey & Astronomy
    ,
    Volume 2, Edition 2, 262 pages, by Andis Kaulins.

  • Both volumes have the same cover except for the labels "Volume 1" viz. "Volume 2".
    The image on the cover was created using public domain space photos of Earth from NASA.

    -----

    Both book volumes contain the following basic book description:
    "Alice Cunningham Fletcher observed in her 1902 publication in the American Anthropologist
    that there is ample evidence that some ancient cultures in Native America, e.g. the Pawnee in Nebraska,
    geographically located their villages according to patterns seen in stars of the heavens.
    See Alice C. Fletcher, Star Cult Among the Pawnee--A Preliminary Report,
    American Anthropologist, 4, 730-736, 1902.
    Ralph N. Buckstaff wrote:
    "These Indians recognized the constellations as we do, also the important stars,
    drawing them according to their magnitude.
    The groups were placed with a great deal of thought and care and show long study.
    ... They were keen observers....
    The Pawnee Indians must have had a knowledge of astronomy comparable to that of the early white men."
    See Ralph N. Buckstaff, Stars and Constellations of a Pawnee Sky Map,
    American Anthropologist, Vol. 29, Nr. 2, April-June 1927, pp. 279-285, 1927.
    In our book, we take these observations one level further
    and show that megalithic sites and petroglyphic rock carving and pictographic rock art in Native America,
    together with mounds and earthworks, were made to represent territorial geographic landmarks
    placed according to the stars of the sky using the ready map of the starry sky
    in the hermetic tradition, "as above, so below".
    That mirror image of the heavens on terrestrial land is the "Sky Earth" of Native America,
    whose "rock stars" are the real stars of the heavens, "immortalized" by rock art petroglyphs, pictographs,
    cave paintings, earthworks and mounds of various kinds (stone, earth, shells) on our Earth.
    These landmarks were placed systematically
    in North America, Central America (Meso-America) and South America
    and can to a large degree be reconstructed as the Sky Earth of Native America."

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