Law – Page 53 – a sibilant intake of breath

Obviousness and patents

This week, the US Supreme Court issued a ruling related to the ‘obviousness’ test in patent filing. The case – KSR Int’l Co. v. Teleflex Inc. (PDF) – hinged on whether an automatic adjustment device for an accelerator pedal created by KSR infringed upon the patents of Teleflex. KSR argued that the combination of technologies was obvious, and that Teleflex could not claim royalties.

In order to maintain a fair and beneficial system, the condition that patents cover non-obvious innovations is highly important. The whole reason for granting patents is to foster innovation by granting temporary monopolies to innovators. Patents are meant to include enough information to allow a skilled practitioner to actually make the thing being patented. Under this system, inventors are meant to be willing to disclose the nature of what they have accomplished so that it might serve to aid the investigations of others. In exchange, they get legal rights over their invention for a defined period of time. This trade-off hardly makes sense when companies are permitted to patent trivial innovations, such as the much ridiculed patent awarded to Amazon.com for ‘one click shopping.’

Recently, there have been a good number of cases where the patent system is accomplishing something quite unlike this ideal. ‘Patent trolls‘ acquire patents of a broad and obvious kind, then wait for another company to release a successful product that arguably infringes on them. More often than not, the objective is simply to receive some kind of payment in return for ending the legal hassle. Of course, this interferes with the processes of innovation, as well as undermining the general credibility of the patent system. RIM and Vonage have both recently been targeted by such suits.

It seems sensible that patent offices should be more aggressive in their interpretations of what it means for an invention to be ‘novel’ and ‘non-obvious.’ As such, they would reduce the occurrences in which someone is unfairly granted rights over an idea that many other people have likely come up with, but not bothered to go through the process of trying to patent. It would also reduce the danger of patent trolling, particularly if the courts recognize that such behaviour can be predatory, and that the patent system ultimately exists to serve the public good.

PS. Slashdot has commented on the Supreme Court ruling. Most of these entries are also relevant.

Buying compliance?

Unusually, this week’s roster of environment related presentations at Oxford included something on the Stockholm Convention. Specifically, Dr. Veerle Heyvaert from the LSE spoke to the Socio-Legal Dimensions of Environmental Law and Regulation seminar series about ‘buying compliance’ within the Stockholm framework.

The central part of her presentation addressed the relationship between the two major kinds of state involved in Stockholm. Essentially, there are rich developed states that had already sharply restricted or banned most persistent organic pollutants (POPs) covered by Stockholm before negotiations even began. Then, there are developing states that either still used some of the pesticides restricted or produced large amounts of unwanted by-products such as dioxins or furans. The differences between the two are largely centered around ongoing behaviour, financial resources, and institutional capabilities.

Dr. Heyvaert suggested that the major contribution of the rich states is to help pay for the costs of POP abatement in the poor states. She expressed concern that while the latter is seen as binding, the former is somehow seen as voluntary or charitable. While the Stockholm Convention lacks any official mechanism to ensure compliance, it seems more likely that pressure will be put on poor states to stop emitting than on rich states to help pay for it.

Clearly, there are issues of equity involved. From the perspective of international law, however, it seems to me that there is a more fundamental issue at hand. Cases like the Trail Smelter Arbitration of 1937 have helped to make explicit the norm in international customary law that states do not have the right to pollute the territory of their neighbours. As such, states that have already cut back are not in violation, whereas those that continue to emit are. While this may be a neatly expressed legal situation, it doesn’t conform too well with the reality of who can pay and what actions individuals are likely to take. As such, mechanisms such as those in the Stockholm Convention that allow richer states to assist with the costs of cleaning up industrial and agricultural processes in poor states seem to make both equitable and legal sense.

The question is how to apply such arrangements to more demanding cases. Nobody with a choice is going to pump out large volumes of Mirex or Toxaphene. They are among the nastiest chemicals humans have ever dreamed up. As such, there is a limited incentive to free ride on a system that seeks to limit their production and usage, especially when there are effective channels for financial and technical assistance in doing so.

At the base of all this, there is the question of what goes into the equity calculation. You might choose to consider past emissions when deciding who pays what, or you might look only at present practice. You might consider overall wealth or not do so; require states to pay equal amounts, equal percentages of GDP, or use some other formula. What kind of balance you adopt is the stuff of political deal-making, which I suppose is where most international considerations of equity are ultimately addressed in a meaningful way.

Law and science

Another intersection between science and policy is embodied in a recent report (PDF) from the Science Select Committee of the British Parliament on the relative harmfulness of different legal and illegal drugs. Notably, the survey ranks alcohol and tobacco as being more harmful than illegal drugs including cannabis, LSD, and ecstasy.

Setting aside methodological issues, the survey does reveal some ways in which our response to scientific information is conditioned by pre-existing understandings and practices. Why society feels that it should permit an adult to drink or smoke as much as they choose to (though not in public or before driving) but that it must actively forbid the use of some other substances has no clear logical basis. Any argument that can be used to justify legal tobacco (free individual choice, etc) could be just as easily applied to other substances on the select committee’s list. While scientific and ethical arguments can be made to bolster various positions, it seems that sheer momentum is the main determinant of policy.

I would be willing to guess that some prescription drugs – especially the anti-depressants given ever-more-readily to children and teenagers – would rank quite unfavourably, if subjected to the same type of analysis.

International law exam questions

Members of the M.Phil in International Relations program who are taking the international law option may appreciate knowing that I have categorized and listed exam questions from the last three years on the wiki.

Climate change, law, and predictability

Happy Birthday Kate Dillon

In a somewhat surprising move, a coalition of opposition members of Parliament in Canada have passed a bill forcing the government to live up to the commitment that was made when we signed and ratified the Kyoto Protocol. Specifically, Canada is to cut greenhouse gas (GHG) emissions to 6% below their 1990 levels by 2012. This is quite a substantial reduction to achieve in the next five years, given that emissions are presently about 30% above their 1990 levels.

In many ways, this situation demonstrates how not to deal with the problem of climate change. What you need to do is create the certainty, within industry, that the costs of GHG emissions will increase predictably and progressively over time. Then, when decisions are being made about what equipment to buy and how to set up industrial processes, the extra constraints can be taken into account. By contrast, the present on-again-off-again approach doesn’t create clear incentives. Even worse, it is not clear to industry what will happen after 2012.

The most straightforward and effective approach would be a tax on every tonne of GHG emissions, weighted according to the contribution the particular gas makes to global warming. Since methane contributes more than CO2, it would be more highly taxed. That tax would then rise progressively over time, until Canada reached the point where GHG emissions stabilized and then began to drop towards pre-industrial levels. Whether such an approach would be politically possible (especially with Alberta eying a tar sands bonanza that could mean massive emissions) is another matter. Three plans for meeting the target are outlined in this article from The Globe and Mail.

Perspectives on international environmental law

It cannot be taken as a good sign to have a presentation in twelve hours and still not really be sure about the main thrust of what you are going to say. I feel like I have a lot of structural elements, but only a semi-rough conception of what I am going to build out of them. The feeling is somewhat akin to that which I have towards the thesis and, indeed, life in general once this program ends.

The immediate requirement is to decide how skeptical I ought to be about international environmental law. The fact that Canada, for instance, doesn’t seem to feel particularly obligated to meet its Kyoto targets makes one wonder whether there’s conviction out there to match rhetoric. One temptation is to fall back, and say that environmental law is just one more mechanism through which governments can be lobbied – both internally and externally. Another possibility is to say that law isn’t what’s in the books and filed with the Secretary General, but rather what states actually get up to. The latter view would probably be more favoured by my international law instructors, but it makes the whole corpus of international environmental law even more nebulous than it previously appeared to be.

I suppose I will write a draft, read for a few hours, then decide exactly what to say in the morning (when my cognitive faculties are at their lowest ebb).

International law and the environment

Next Wednesday, I have volunteered to give a presentation to my international law seminar on the following questions:

Why has the regulation of CFCs been a success while the Kyoto Protocol has failed?
Should the USA join the Kyoto Protocol, and if so, why?
What roles have been played by Governments, NGOs and international organizations in the development of international environmental law? What is the basis of their authority in this field?

Substitute persistent organic pollutants (POPs) for Chlorofluorocarbons (CFCs), and it is a very good match for my thesis.

To give very short answers:

Because there were substitutes readily available, the science was strong, and the cost of dealing with the problem reasonable, in the case of CFCs. Climate change is more difficult on all counts. (See the paper I wrote on the Stockholm Convention for my First Nations politics class in 4th year.)
Yes, because it is a first step on the way to an agreement or collection of agreements that will stabilize GHG emissions, in the medium term. Ultimately, doing so will be much cheaper than suffering climate change, and will not carry the same terrible social and ecological costs.
Their authority is based on expertise and legitimacy. See my thesis, in 88 days’ time for a more comprehensive answer.

Reading some more of the international law involved should be both interesting and useful. This is probably the first time the environment has been specifically addressed in any course that I have taken at Oxford.

PS. Much as I hate to reveal a fact that I might later win bets with friends about, I feel compelled to tell one that I learned earlier today from Kate. The polar bear (Ursus maritimus), has black skin: a feature that helps it to absorb energy from the sun, and thus keep the bear warm.

First law seminar

As expected, the first international law seminar was extremely interesting. The conversation between the two instructors, law students, IR students, and one serving military officer should make for an excellent exchange of ideas. Already, some of the positions taken about the role and nature of law have been unfamiliar in an enlightening way.

The location is also an appealing element: the class is set in an elegant seminar room in All Souls College that lights up nicely as the 11:00am to 1:00pm class progresses.

Legal responsibilities of soldiers

A question in international law:

Some people will doubtless have heard about the case of Lieutenant Ehren Watada: the first American commissioned officer to refuse to serve in Iraq, on the grounds that the war is illegal. He has said, for instance:

This administration used us for rampant violations of time-tested laws banning torture and degradation of prisoners of war. Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration and the rules of engagement of desperate field commanders will ultimately force them to be party to war crimes.

In some ways, this is the inevitable product of saying that “I was just following orders” is not a legal defence for someone who has committed war crimes. In effect, stripping them of that protection obliges every soldier to contemplate the legality of their own actions. This is especially true for officers, given their special responsibilities under international law, as referenced in the Youmans Claim¹ and Zafiro Claim².

The Fourth Nuremberg Principle, established to try war criminals after the second world war, states that:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

The Sixth Principle defines “Planning, preparation, initiation or waging of a war of aggression” as a crime against peace, punishable under international law. The Seventh says that mere “complicity in the commission of a crime against peace” can likewise be punished. Kofi Annan has called the second Iraq war illegal, and there is a legal case to be made that it was “a war of aggression.” At the very least, Lieutenant Watada will be able to make an interesting argument.

Politically, this case will probably just perpetuate the mudslinging war between people on the left who accuse the administration of criminality and those on the right who accuse the left of lacking patriotism and threatening American lives.

Lieutenant Watada’s court martial begins on February 5th, and he could be sentenced to up to six year’s imprisonment, if convicted.

[1] US v. Mexico (1926) US v. Mexican General Claims Commission: Van Vollenhoven, Presiding Commissioner; Fernandez McGregor, Mexican Commissioner; Nielson, US Commissioner. 4 R.I.A.A. 110

Essentially, Mexico was found to have not exercised due diligence in protecting three American nationals surrounded by a mob. The fact that Mexican soldiers actually fired upon the Americans while “on duty under the immediate supervision and in the presence of commanding officers” was taken to be relevant.

[2] Great Britain v. US (1925) American and British Claims Arbitration: Nerincx, President; Pound, American Arbitrator; Fitzpatrick, British Arbitrator. 6 R.I.A.A. 160

A privately owned ship with a Chinese crew was being commanded by an American officer. In the arbitration, it was found that in allowing the crew ashore unsupervised, when it could have been anticipated that they would participate in looting, was a violation of international law on the part of the officer.

No doubt, many more cases about the special responsibilities of officers exist. The Wikipedia entry on command responsibility includes a lot more information. American military doctrines and regulations also place special responsibility upon officers. As such, it would seem that people in that position have a special obligation to ask the kind of moral questions that Lieutenant Watada has.

Anfal charges dropped for Saddam Hussein

Compounding the error of hanging him, the Iraqi High Tribunal has chosen to drop all charges against Saddam Hussein in the ongoing trial about the Anfal campaign. He was convicted earlier for the killing of 148 civilians in Dujail, but the campaign against the Kurds in Anfal between 1986 and 1989 killed more than 100,000 people and involved the use of chemical weapons including Sarin.

The brutality and illegality of this campaign has been used by many to bolster the assertion that Saddam Hussein was a tyrant and a criminal, and that the American-led invasion and occupation have been justified. It has also been used by those critical of the United States, particularly because some of the weapons used were almost certainly provided to Iraq by the United States and other western or NATO powers, either during or before the Iran-Iraq War (1980-88). In March of 1986, the President of the United Nations Security Council issued the following statement:

[P]rofoundly concerned by the unanimous conclusion of the specialists that chemical weapons on many occasions have been used by Iraqi forces against Iranian troops… the members of the Council strongly condemn this continued use of chemical weapons in clear violation of the Geneva Protocol of 1925 which prohibits the use in war of chemical weapons.

(S/17911 and Add. 1, 21 March 1986)

The United States voted against the issuance of the statements, while the UK, Australia, France and Denmark abstained.

Those who hoped that there would at least be a proper investigation and documentation of the crimes committed under his regime will be disappointed. Likewise, those who hoped that further precedents about the use of chemical weapons by heads of state might be established in international law. The progression in Iraq seems less and less like one towards a democratic state governed by the rule of law.