Right, I meant to imply just that- He's not doing anything in hollywood anyway, so its no big loss to him or the studio to have him under contract. Whereas, if the Governator had a clause saying he had to drop whatever he was doing whenever they decided to make Total Recall II: Spirit Returns then he'd have some issues. As it is, Mayhew might have to bow out of Pirates of Penzance.
So yea- I'm not really surprised he has a contract for the next three. Hell, I wouldn't be surprised if he has a contract for the next 387. He's getting older, the condition that made him so tall has started to really fuck with his knees, and he's doing community theater. If you were him, wouldn't you do everything to assure yourself that you'd be in on it if the next shot at residuals came along?
I'll talk to the local town gossip tonight and see if I can't find out some more.
And maybe they'll sell you the courage to post logged in you troll. I posted that, because unlike the other posts of "its a fisheye lens- duh" I included an example. Ya know, some people actually haven't had the chance to mess around with them. But I forget, your a coward, and thus superior.
Then again, they could just be using wide angle "fisheye" lenses so that it takes fewer pictures to cover the same amount of span. You know like this. Anything under a 35mm lens produces this kind of effect. Just ask the pimply faced teenage at the closest Ritz camera to show you.
Re:Jennifer Trosper is a VOLLEYBALL PLAYER!
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Spirit Rolls on Mars
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· Score: 3, Informative
She was the captain of the 1989 MIT Volleyball team, and the first MIT grad to be inducted into the Verizon Academic All-American hall of fame.
She was a hottie back then too- read all about it at this webpage.
That was the lamest thing I've ever read from/. Where are the numbers? Graphs? Not to mention- 800 dollars! Granted, its Canuck bucks, but still... Sheesh. Does the average bear need that time difference?
Now- rewrite this article... Explain the systems it was used in. He mentions that the IDE system had a faster processor. What was it? How much faster? What kind of motherboard? I know from experience that a crappy-ass IDE controller can handicap you from the start. Whats the difference if he used a dedicated but cheap IDE controller card? This seems on the level of- I shot a pumpkin with a.22 and it didn't move. I shot it with a bazooka and it blew up. Therefore- bazookas are more useful than.22s. Which may be true in certian situations. But if I'm plinking in my backyard I'll spend the.07 cents that each 22 round costs me rather than hundreds on that RPG round. I dont need an 800 dollar hard drive to frag in UT, check my mail, surf the net, or read/.
All my friends were pissed that I enabled the feature to watch someone type in ICQ, and would then call them on things that they were about to type but never hit enter on...
It was stupid. It wasn't funny. I've seen too many fights here there and yon. I also dont take shit from people who don't think enough of themselves to log in.
This story is/was still in "The Mysterious Future"- meaning that a great number of people with modpoints cant see it yet. You cant mod what you cant see...
Unfortunately thats the choice you make with a representative republic. You elect leaders whom you believe will do the right thing. Now, its open for debate whether the "right thing" that they should do is to vote how their constituencies want- or vote how they think something should actually work. It appears in this case the latter is happening. If this were really a government killing deal (like say, making all people stand on their head and pick their nose on their 21st birthday by law) then they'd just, as the saying goes, "Throw the bums out." But apparently, there isn't enough organized resistance to this to make the cabinet scared of the political ramifications. And anyway- all sorts of crackpot stuff getsa policy paper reccomending it. Get concerned now- get up in arms when it might actually happen.
Hitler was a facist. Stalin was a communist. Blair is... well, he's the kind of politician it takes to get things done in this crazy mixed up world we're living in.
That said, I dont think I agree with him. But Clinton's "Third Way" politics are going to be around for a while folks. Settle in and enjoy the nation building.
I too, am on a quest for the beginning of a pop-culture reference. I'm looking for the origins of the phrase "Nice shoes, wanna fuck?" I've found a usenet posting from 1991 of pickup lines, but then I stall out. PLEASE let me know if you can move this date back any earlier.
I built one of these for my drama class in high school. The problem was, we used DRY ICE as the chilling mechanism for the fog. Blow fog though a cooler full of dry ice, and it'll chill down pretty fast. The good news about this is 1) no water from regular ice. 2) dont need much dry ice. We found that 1-2 pounds of the stuff was more than sufficent to last us through a day of competition. Plus, you can toss some pennies on it for a neat metal contracting sound. The problem we ran into was forcing the fog through with the correct speed to both chill the fog into hugging the floor and also producing any kind of fog volume. We fixed that with a fan from radio shak wired into a battery pack so it would be portable enough. After that the only problem was rolling huge blankets of fog off the edge of the stage and into the audience.
Never, never, never ever will I go paperless while Im a college student. Reading page after page of congressional testimony (I'm a poli-sci student) is hard enough without having to read it off a screen. And I dont care how advanced an ipaq screen gets, it will have more eye fatigue than its dead-tree cousin. I took notes in class with a laptop for ONE semester. Then I got tired of dead batteries, sticking keys, and other stuff thats only a mild inconvienence when your not getting tested on the material. Not to mention what a classroom of 300 would sound like with the ticky-tack of keys the whole time. And who gets to sit by the ac plug? No, no no. Never happen for me. I regularly print out hardcopies of electronic sources. For one, Lexis-Nexis doesn't let you bookmark specific articles to peruse later. Dead tree does. Its called a paperclip. Not only that, but I will take my sheaf of printouts anywhere I might have 5 mins to spare. (Study at a party? If its finals week and I need the beer bad enough, you betcha). Plus its really hard to get highlighter off an ipaq. My expirence with paperless education- laptop, lexis-nexis, etc has been that its only useful when paired with real, physical paper.
In the past 6 months/. has featured 2 supreme court decisions, both of which I've written papers on. Here is my take, as a student of the 1st amendment on why you might rule this act constitutional. Now I dont agree with it, but I think this makes for an interesting and informative read.
Background In the case of Janet Reno v. The Free Speech Coalition et al. we find a traditional confrontation between the expression of U.S. law and the constitutionally protected concept of freedom of speech. The Free Speech Coalition has challenged whether or not Congress has the constitutional authorization to regulate computer-generated images as child pornography. The case has been formed around the contention that two phrases present in the Child Pornography Prevention Act of 1996 ("CPPA" or the "Act") are so broad that they infringe on speech that the first amendment protects. Secondarily, the Free Speech Coalition argues that the law has such a chilling effect to freedom of speech that it imposes a prior restraint on the kinds of products the defendants are producing. The Act outlaws images that have been either entirely created using electronic or mechanical means, or images that have been modified by those means. These images only fall under the Act when they either appear to be child pornography, or are marketed as such.
In 1996 a congressional study expressed concern over the growing technical ability to produce adult materials that blurred the lines between protected forms of pornography and child pornography, which is an unprotected form. The study was particularly concerned with the effects that "virtual" child pornography would have on children. These "virtual" images are created by mechanical or electronic means, and may or may not involve the usage of children. In some cases children's faces are superimposed over images of pornography involving consenting adults. In other cases, the images are created without using any children, but rather are created from a computer model of an adolescent. Congress created the CPPA in response to this concern. Their fact finding committee suggested that such a ban on "virtual" child pornography would advance legitimate government interest in several ways: by protecting children, allowing enforcement of current pornography laws, and undermining the distribution channels that the child pornography trade has been built upon. The congressional committee saw these goals as important enough to warrant the infringement upon certain types of expression.
In light of these concerns the CPPA was specifically targeted to prohibit the creation of pornographic images by electronic or mechanical means. The Free Speech Coalition has built their objection around the language used to meet this goal. The law prohibits any image that "appears to be" of a minor engaging in sexual acts, or is distributed in such a manner that it "conveys the impression" of a minor engaging in sexual acts. For these purposes sexual acts were defined as sexual intercourse, bestiality, masturbation, sadism/masochism, and lascivious display of genitals. The Free Speech Coalition asserts that this language infringes on their first amendment rights to freedom of expression because of its breadth. High Value v. Low Value Speech
The court must caution all parties involved to remember the distinction between high-value and low-value speech. Speech is considered of a high value when it is essential to the smooth functioning of our deliberative democracy. Traditionally the First Amendment affords more protection for these types of speech in order to encourage the open dialog essential for preventing a government from becoming oppressive to its people. It is important to note when the first amendment was created the speech that was considered most important to protect uncensored was speech of a political nature. Numerous times through out this Court's history examples can be found of cases where speech was allowed because of the essential political nature of that speech. In the case of The National Socialist Party v. Skokie, 432 U.S. 43 (1977) speech that was objectionable was allowed because that speech was of a political nature. In this case it would be impossible to grant that the speech the Free Speech Coalition wishes to protect is political.
In recent years the court has only limited political speech when it met the test of "clear and present danger." Justice Holmes introduced this test in the case of Scheck v. The United States 1919 by saying that political speech must present an immediate danger to the government before restrictions can be placed upon it. The courts reasoning for this has been that speech of a political nature is essential to the functioning of a democratic society. If citizens are not allowed to express their ideas for fear of governmental action, then the government has become oppressive. For this reason the court has a stringent test for when it can regulate a citizens speech.
When cases have come before the court where the speech was not political the test for regulation is less stringent. If speech is not of a political nature then there is less reason for the government to permit it to harm citizens. In cases such as these the court has found that the government has a right to regulate speech in order to pursue its vital interests. The Supreme Court has ruled previously that "[a] content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." The court has defined low value speech as speech that has no political meaning. This should not be mistaken as grounds for wholesale censorship of speech because the government finds it objectionable. It is important to note this difference in the perceived value of speech. Low-value speech must naturally warrant greater scrutiny than speech of a political nature. Therefore, we must examine the permission of virtual child pornography very carefully. When speech harms or impedes the government's pursuit of its vital interests then more leeway is allowed in restricting that speech. One can plainly see that there are serious legal ramifications to the type of speech that the Free Speech Coalition seeks to protect. Breadth To declare a statute as overly broad is a judicial last resort that should only be used in an effort to fix a law that cannot be made constitutional in any other way. Even when the statute being considered does appear to be overly broad the court must consider the whole law. Laws that may seem overly broad at first glance may be found acceptable when considered as a whole. The case that The Free Speech Coalition presents raises objections to several clauses as being overly broad. However, the court holds the opinion that when the whole CPPA is considered all of these clauses are constitutional. There are specific reasons why we must consider each clause to be so. In the instance of the phrase "appears to be" the statute cannot be seen as overly vague when taken in context of the entire law. Congress included the affirmative defense to resolve the individual conflicts between legitimate protected expression and the law. This section states that if a images "appears to be" of child pornography, but the promoters of that material can prove the participants are of legal age, then the image is exempt from the CPPA . The Act provides an affirmative defense as an escape clause for those that might be prosecuted falsely for producing protected forms of expression. If the expression requires a consensual sexual act between people of the appropriate age, then the affirmative defense provides for the protection of that expression even if it might be considered to fall under the act. In this manner it is important to understand that the affirmative defense is a full defense from the law, providing protection for worthy kinds of expression The Free Speech Coalition has said that the CPPA violates the ruling in New York v. Ferber, 458 U.S. 747 (1982). They contend that the CPPA takes away the possibility of using someone who "perhaps looks younger" by making images illegal even if they contain adults of a consenting age. This is simply not true. If an image complied with the Ferber ruling then it would be protected by the affirmative defense in the CPPA. If an image portrays a person who looks younger than the age of consent, but the producer or distributor of such an image can prove they are consenting, then there is no conflict with the law.
The phrase "conveys the impression" is indeed a broad one. However, two problems arise if this court rules it overly broad. The first is the historical reluctance of the court to rule a statute overly broad because of the difficulty this would pose to lawmakers at all levels of government. Statutes must be sufficiently focused in order to prevent abuse by governmental authorities in their prosecution. However, they must be constructed broadly enough to attain their ends. Although the court finds great difficulty in striking this balance, it must consider the interests vital to securing the most free and stable state for all of its citizens to enjoy. In this case we must consider the states vital interests in protecting children from sexual predators. Harm to Children
In recent years it has become trite to express interest in children as America's future. However, in a very legal standpoint a self-interested society must place extra weight on protecting the young for it will be their responsibility to care for the continuation of this country. For that reason one of the states most vital interest is in protecting its children.
In this light it is important to consider the protection of children as a goal that can justify the restriction of speech. Just as a patron must not cry "fire" in a crowded theatre because of the harm it would cause to theatre goers, any speech or expression that can harm children must be restricted. Child pornography has such harm in its expression that it is in the states vital interest to make every effort to eliminate this harm. In this case we are dealing with a law designed to protect children against child pornography. While this is not a new concept in American jurisprudence, the implementation has a major variation. Previously, laws seeking to protect children against the harms of child pornography have been focused on the "primary" harmful effects of the pornography. Primary effects are best defined as those harms that are the direct result of the child's participation in the making of pornography. These effects include the actual molestation, emotional scarring, and a visual record of the acts that the child participates in. The logic behind previous laws dealing with child pornography is that these effects are so heinous that the government's interest in protecting children far outweighs the rights of the pornographer to produce these types of images. In the CPPA however, we see a shift in the intent of the law to protect children not from these primary effects, but from other, secondary effects.
These secondary effects that the CPPA focuses on are the harms that occur when a child is exposed to child pornography, rather than injured in the production of it. These effects can include sexual predation, desensitization, and forced sexual identity at a young age. These secondary effects have never been directly recognized as justification for the restriction of expression. Since these effects are not directly the result of child pornography their usage as the sole reason for regulation is problematic. However, there is a manner in which these secondary effects are important to consider. The governments' primary interest in regulating child pornography is the protection of those that are injured in the production of the pornography. All previous laws have focused on what occurs during the making of the pornography. In these cases there are real children that are being harmed and the law is to prevent the harm. To redefine that interest as to protect those that may be injured by exposure marks a much larger shift in ideology. This shift in ideology is not present if restrictions on distribution are used as a method to halt production. This is an important consideration when viewing Supreme Court rulings as carrying the full force of U. S. law. The tradition of the court has been to rely on precedent and stability. When the court is judicially active it has a tendency to reach beyond normal considerations to grant a higher level or protection than normal. One of the most active stances the court has taken is in Brown v. Board of Education and it took such a stance because of the political nature of the case. In Reno v. The Free Speech Coalition the speech that is being considered is not political. Although there have been periods of judicial activism, this case is not a candidate for such consideration. Therefore, we must look at this case from a distribution standpoint. Just as with the struggle to contain illicit drugs, the government must win the war against child pornography in the channels of distribution. When defensible images are marketed as child pornography they keep the demand for actual child pornography alive. This leads to the harms inherent in the production of actual child pornography. These harms are the emotional damage to children involved, encouragement in the belief of children as sexual objects, and much higher rates of child molestation. If the viewing of "virtual" child pornography is approved then demand for such images will surely increase. The danger in increasing demand for these kinds of images is that some pornographers will almost certainly resort to using actual children in production and then claiming that the images are protected as being "virtual." When these images are purchased as "virtual" then the laws against real child pornography have been bypassed. In this manner people who would never consider harming a child might inadvertently support those who are abusing children in the production of pornography. Enforcement of Current Laws This leads to yet another important idea to consider. The absence of the CPPA will hinder enforcement of the many other child pornography laws, laws whose constitutionality is not in question. In cases where the "virtual" pornography is utterly indistinguishable from that involving real children the lines between permitted and non-permitted speech would be so blurred that they would prevent prosecution of real crimes in the absence of the CPPA. It is quite obvious that the first amendment does not extend protection to those persons harming children in the production of their "expression." However, without a law such as the CPPA the government's burden of proof would become so difficult that it would prevent the enforcement of legitimate laws. In pursuing the vital interests of protecting children the court must consider the limited infringement on certain types of low-value speech against the vital interests of continuing validity of necessary laws. In this case one can easily see that whatever position is preferred initially, the restrictions placed on expression by the CPPA are neither unreasonable nor unconstitutional. The combination of the many factors that have been, and will be discussed make the decision in the case an easy one. No matter what tradition of preference is used, the CPPA satisfies the need to balance first amendment freedoms with the protection of vital interests. Prior Restraint As mentioned earlier, the Free Speech Coalition contends that the CPPA presents a prior restraint on speech. They present the opinion that by regulating images that only represents children, but do not involve them, the government creates a chilling atmosphere for free expression. The idea is that the statute is so broad that since a reasonable person cannot tell if an image falls under the act, then someone who produces images involving children would not be free to express himself for fear of prosecution. There are, however, several problems with this particular thought. The court can only consider something as prior restraint when the government actively prevents the expression of a particular idea. Self-regulation from fear of prosecution cannot be considered prior restraint. If a person fears government prosecution then they only have to examine the law and their product to determine if it is banned. In the case of the CPPA, if the image does not fall under the definition presented in section 2256 or is protected by the affirmative defense then that speech is permitted. If this is the case then there is no reason to fear governmental action. The Free Speech Coalition asserts that there is no way for a reasonable person to know whether or not an image falls under the definition of the act. This is simply not the case. In the case of the phrase "appears to be a minor" the test is simple. A perfectly workable test was introduced by a First Circuit Court ruling. The question is "whether an unsuspecting viewer would consider the depiction to be an actual individual under the age of eighteen engaging in sexual activity." In instances such as that the question always arises "What constitutes a reasonable person?" There is no pat definition to this question. The assumption made by the United States Constitution is that the vast majority of persons are indeed reasonable. This can be seen in our system of a trial by a jury of a persons peers. If the citizens of the United States are reasonable enough to determine a persons innocence or guilt in cases of high importance, such as murder, then they are capable of determining if a person appears to be under 18 years of age. The existence of an affirmative defense also answers the question of prior restraint. If an image can be protected under the affirmative defense then there is no reason for a person to fear prosecution for that image. When these considerations are taken into account then the threat of prior restraint seems much less dangerous. With these understandings, those who produce images that are not prohibited by the CPPA have nothing to fear. Preferred Positions In this discussion it is important to note the judicial tradition of preferred positions. The court at various times has preferred certain philosophies of the first amendment to others. Justice Hugo Black preferred the protection of the First Amendment to all others initially. Other justices have given more credence to protecting stability and the rule of law than they have to protecting freedom of speech in all situations. In either ideology, regardless of which is initially preferred the evidence for a compelling state interest is so strong that it overrides any preference for the permission of expression involving "virtual" child pornography. Justice Ferguson expressed this feeling when he stated "Congress' interests in destroying the child pornography market and in preventing the seduction of minors outweigh virtual child pornography's exceedingly modest social value." This coupled with the fact that such pornography can be used in the seduction of children when marketed as minors is sufficient reason to limit one form of low value expression in the quest to protect children. One large part of the congressional study that proceeded the CPPA was dedicated to the use of pornography by pedophiles. The panel reached the conclusion that "virtual" pornography is just as effective in seducing children as actual pornography. This cuts to the very heart of the debate on secondary effects. Even though "virtual" pornography does not harm children in its production it causes other real harm to children. The Free Speech Coalition has been adamant that computer generated images are victimless, and do not harm children in their creation. They ignore the fact that they harm children in their existence. As with many constitutional issues, a balance must be struck between protection of the rights guaranteed to individuals and the protection of safety for all. In several instances the Free Speech Coalition raises possibilities where officials who wish to prosecute protected speech might misuse the law. Unfortunately, these cases are not before us now. When these hypothetical cases of abuse by law enforcement arise, then this court will be happy to hear another challenge based on such abuse. Until that time the affirmative defense is sufficient to prevent such abuses. Other Considerations
There is one warning that I must add to my decision against the Free Speech Coalition. No matter how repugnant it may seem, there is no legal justification for the outlawing of the thought of committing an illegal act with a minor. Such a law would require the creation of an Orwellian Thought Police that the first amendment was specifically designed to protect against. However, it must be clear that such limitation only applies in creations of the mind that commit no actual harm. This case rides the boundaries between regulating thought and ensuring safety for all.
Although the Act is quite valid, the Free Speech Coalition is correct in objecting to regulations that are against "creations of the mind." Although there is no harm to actual children in production, the dangers to children are obvious. Because this harm is so close to that of pornography that does involve children, and it does cause actual harm to actual children, the regulation of computer generated images is permissible. Had these harms not been present, then the court would have found no justification to ban the speech based on content alone. This is not to say that we have outlawed the thought of sex with minors. If the Free Speech Coalition wanted to produce literature that wrote about sexual activity with minors, and this writing did not cause them actual harm, it would be a different ruling. Simply because a thought is repugnant does not mean that it is illegal. It must be very clear that the First Amendment is being abridged not because of content, but because of harm. The First Amendment is intended to protect speech that is disagreeable to the government, but not to protect speech that causes harm. Conclusions The decision to rule against the Free Speech Coalition is a difficult one. While I am concerned with any ruling that restricts freedom of speech, it is difficult to justify overturning the CPPA on the grounds that virtual child pornography should be protected. It is my opinion that the need for freedom of expression does not outweigh the harms that can be caused by the types of expression the Free Speech Coalition seeks protection for. In this case Justice Holmes test of "Clear and present danger" is much too stringent to use when considering restricting "virtual" pornography. While this type of expression does not present an immediate danger to the survival of the United States, its danger to members of our country is sufficient to justify its regulation. For these reasons I must rule against the Free Speech Coalition.
that there will be actual news today, but I wont know till tomorrow, because I'm about to turn my computer off and go run and hide. Thank god Drudge didn't succumb.
Hum... I go to the same country as the famous coffee maker, and it has to be on the exact OPPOSITE end as me. Hamburg is 8 hours and 250 DM from where I'm going to be. Oh well, have to settle for beer for breakfast instead of coffee.
Hurm... I'll be in Germany this coming month... I wonder if I found the Speigel office if they'd let me have my picture taken with it. Or, perhaps even have a cup of coffee from it- oh the joy in that thought. What better way to celebrate a trip to a foreign country than by paying homage to the first internationally known coffee maker.
On a side note- After seeing that translation page I have never been more glad that I took german in high school and college. Egads.
Re:How far will this go?
on
Patented Seeds
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· Score: 2, Interesting
I guess what I'm trying to say is that from an economic stand point, these patents will encourage companies to make better breeds of food. With more information, more people will begin to breed or genetically engineer their own seed. After that their ideas could be patented in a GPL-like way so that corporations couldn't control how the seed will be used.
Unfortunately, this is exactly what the decision rules out. Under previous law, this was the case. GM plants had to be submitted to seed banks so researchers could examine, improve, modify, and reuse the kinds of developments that had been made. If they were different enough from the parent, they could even get protection for their plants, provided they submitted them to seed banks as well.
What this ruling does however is make seeds subject to utility patents. These patents are exclusive, require no disclosure, and are very restrictive. Therefore, you dont get to see others work. You dont get enhanced knowledge. You dont get a starting point for more research. you get companies like Monsanto, Dow, and Pioneer-hibred forcing farmers to buy new seed. Every year. Forever. Not sharing with researchers. Patenting even more products.
As follows- long, deal with it. Written in the style of me being a deciding judge. Deal with it.
Background
Pioneer Hi-Bred International is the largest producer of seed corn in the world, and as such holds 17 patents for sexually reproducing corn plants. The patents that Pioneer holds have been granted under Section 101 of the Patent and Trademark Act, which governs the patent process for most patentable discoveries. This law, known as a utility patent, is general, allowing the holder to place restrictions on the use of their discoveries. Pioneer Hi-Bred distributed a genetically modified and patented form of corn to J.E.M. Agricultural with the condition that it be used only to produce "'grain and/or forage'". J.E.M. Ag then repackaged and resold the seed corn, in violation of the terms of sale by patent conditions. Pioneer Hi-Bred responded by filing suit for patent infringement.
J.E.M. countered with the claim that the patents granted to Pioneer are invalid. They base this claim on the contention that corn, a sexually reproducing plant, is not subject to patent under 35 USCS 101. This statute states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Sections 102 and 103 exclude any law of nature or living organism from this protection. Justice White explains "The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute [ 101] was enacted to protect." J.E.M claims that since the patents Pioneer holds are inadmissible by federal statue, they are void, and they lack standing to sue.
Court Decisions
The decision in Chakrabarty seemingly prevents any application of the Flook decision limiting the expansion of patent protection. Pioneer argues that the court is to use its ability to interpret law created by Congress in order to grant patent protection for a category not included in any legislative history of patents. Their reasoning is parroted out of Chakrabarty - "It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is "the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803)." The respondent would have this court find ambiguity in the application of 101 in order to interpret the statute so as to extend utility patent protection. This cannot be done in all good conscience, as it requires a vast over use of the courts power of legislative review. The abilities granted by the Marbury case are too important to wield as a sword to be used to create a legal fiction convenient to the courts political views.
Further discussion will reveal why the logic presented in Chakrabarty does not hold in this case. Throughout the interpretation of this case it is important to keep in mind the separation of powers. In every case ask- "Is this the domain of the courts or the legislation?" The overwhelming answer is legislation. This court considers the issue only to rectify the damage that has been done in lower courts, and to restore the meaning that Congress spelled out when they passed the legislation pertinent to this case. An examination of that legislation will reveal why this court does not accept the reasoning presented by Pioneer.
Law
There have been a number of efforts to deal with the emerging field of genetic engineering and manipulation in plants as it relates to patent protection. The legislative history has developed slowly, following the development of science to both produce and identify the kinds of living materials that are eligible for protection, and what those protections might be. It has only been recently that the judicial system has overstepped its bounds to decide, by thinly veiled allusions to revered precedent, what Congress must have meant. A close examination shows that Congress has never intended to extend utility patent protection to sexually reproducing plants. No explicit legislative evidence exists to substantiate this position
Until 1930 it was explicitly understood that creations of living plants were inherently excluded from edibility for patents. During that year Congress passed the Plant Patent Act, which incorporated asexually reproducing plants into the precursor of the current U.S. Patent law- title 35. The PPA was a direct modification of the current statue, reducing the requirement for description, but only applying it to asexually reproduced plants that could be reliably reproduced. This direct modification is important when considering the way that future changes were made.
Then next change to patent law came in 1952 when Congress re-enacted the Patent Act. Among the changes was the replacement of the word "art" with "process". This enactment also codified the changes from 1930 into the new section into 101. This change affirmed the belief or Congress that asexually reproducing plants were subject to utility patents. Once again, this was a direct, codified change to the actual patent act as it pertained to plants. The restrictions on identification were loosened to the point that they were met with a color photograph. Besides these kinds of technical changes, the general requirements such as novelty and man-made construction were retained. Plants patented under this act were also protected like other patents. This is most certainly not the case with the PVPA protecting sexually reproduced plants.
The last change occurred in 1970, and dealt with providing protection to sexually reproducing plants. However, Congress approached the protection of plants in the Plant Variety Protection Act differently. The PVPA did not extend utility patents to sexually reproducing plants, but rather provided them protection with some key stipulations- the ability for farmers to keep seed year to year, and the requirement of submitting samples to seed banks. The PVPA was incorporated as a separate statue, not codified as part of Title 35, Section 101. By this difference it is evident that Congress did not consider the PVPA to be directly equivalent to the PPA. This is however, what Pioneer asks, and what the lower courts have ruled. The differences in the statues demand that they not be considered as equals. Therefore, the Chakrabarty ruling, granting utility patents to asexually reproducing plants fails to influence this court that sexually reproducing plants should be treated in the same way.
Chakrabarty asks that the court interpret Congressional meaning in patent law when ambiguity appears. The question of patent protection for plants has been decided on three times in the last 72 years. For an issue of rather fine political and constitutional importance this is an enormous body of legislative action. Congress has systematically applied greater and greater protection to those that develop variations on living matter. Protection for living matter began with the PPA's application to asexually reproduced plants and has most recently been extended to sexually reduced plants by the PVPA. In none of these three actions has Congress granted utility patent protection for sexually reproducing plants.
Instead, they have established an entirely different protection scheme, complete with its own certification process, rights for holders, and rights for the general public and researchers. This must be taken as a clear signal for what protections Congress wished to grant sexually reproducing plants. In light of these decisions it would be a severe usurpation of Congressional power if this court were to decide that Congress had intended to protect sexually reproducing plants with utility patents. However, this is exactly what Pioneer asks for.
Pioneer Hi-Bred cites the fact that the Court of Customs and Patent Appeals has ruled in their favor to grant the patent as judicial precedent for this court to follow. It is important to note that Parker v. Flook was a reversal of a Court of Customs and Patent Appeals decision, and that decision set up the affirmance of an appeal in Diamond v. Chakrabarty. The court holds little precedent judicially as it is primarily an administrative body. This court finds little reason to believe that the Patent Court acted in accordance with the desires exhibited by Congress through the 1970 PVPA.
Natural Law Exemption
The Chakrabarty case only bears a surface resemblance to the case that has been presented here before the court. At issue was a similar topic, whether or not the patent office could grant a utility patent for a living organism, but the granting of that patent relied on a very different premise than is present here. In Chakrabarty the court allowed the patent not solely because of the PPA, but because the patent application clearly met standards already in place and the PPA. At issue was the creation of a "novel" organism. Much like the development of a new machine the bacteria that Chakrabarty patented had properties that no other patented product had. The fact that it reproduced asexually allowed it to be granted a utility patent under the PPA. Pioneer's claims do not meet either requirement. The PPA explicitly grants utility patent protection for asexually reproducing plants only. The PVPA allows a measure of protection for sexually reproducing plants, but not under utility patent law.
As importantly, the patents filed by Pioneer Hi-Bred would not meet legislative requirements even if the PPA applied to sexually reproduced seeds. In the Chakrabarty case, the bacteria did something that no bacteria had ever done through natural mutation- they dissolved oil spills. Pioneer makes no such claim here. Their corn does not clean up toxic waste, revolutionize transportation, or do quantum mechanics. It is simply corn. Granted, the corn has improvements, but the improvements are such that they are simply extensions of natural properties of corn.
In order for an invention to be patented it must "have never occurred in nature." This requirement was part of the original 1793 patent act, and has remained unchanged through all modifications. The reason for this is simple- if patents are granted on natural processes, a single patent could corner an entire area of invention. A patent on convection could greatly affect cooking, incubation, heating, and many industrial processes. Likewise, a discovery from nature belongs to the public in trust, to experiment on, develop from, and create unique products and processes. The accelerated evolution of a sexually reproducing plant to exaggerate natural traits does not meet this criteria. Once again, the case presented by Pioneer fails to meet any test set up by either the Supreme Court of the Congress.
Without a definitive man made modification there are several recourses that Pioneer may pursue. They may obtain utility patents on a manner for the actual process of modifying corn, or raising the seed once it has been produced. However, they may not obtain a utility patent on the corn itself. Therefore, they must find alternative methods for protecting the integrity and rights to the specific breeds of corn that they produce.
Restrictions versus Alternative Methods
At the center of this debate is the question of whether the presence of the PVAP and the PPA exclude the possibility of utility patent protection. The lower courts found compelling evidence that the Radzanower test had been met. When two statutes cover the same ground, if they are found to be capable of co-existing, the court is to hold both as effective. However, this court finds that the lower court was mistaken in one area- the PVPA and the application of utility patents to plants are not capable of coexisting. This is not because the letter of the law is mutually exclusive, but because the PVPA makes clear what protection that Congress wished to extend to plants.
When Pioneer applied for a utility patent to protect their corn derivatives, they also applied for protection under the PVPA. There has been much debate about the legitimacy of doing this. The question presented is whether or not the PVPA is the sole means of protection for sexually reproducing plants. This court contends that the history surrounding the creation of the PVPA makes it the sole protection for sexually reproducing plants, and that the utility patents law cannot be construed to encompass additional protection outside the PVPA.
The legislative history shows ample cause for rejecting this argument. In 1930 the PPA was created as a direct change to the Patent Act, and included in the 1952 re-codification. This provides evidence to suggest that Congress intended the PPA to extend the utility patents in a new direction- the ability to patent asexually reproducing organisms. Under this specific setup, the protection from both clauses is effective and capable of coexisting. Not only are they complimentary legally, but also in the reason and form of their creation. The Radzanower test has been met since both can co-exist, and so it is the courts ruling that a patent may be held under utility patents as well as the PPA, because they are in fact, one and the same. This is not the case with the PVPA.
The PVPA was enacted in 1970 not as an extension, amendment, or re-enactment of the Patent Act, but rather a separate statute. Whereas the PPA relaxed the restrictions on utility patents in order to protect asexually reproduced plants, the PVPA gave entirely different protection, outside the scope of utility patents. This difference is important to consider when reasoning the kinds of protection that Congress intended. The PVPA and utility patents do not conflict in their statutory language. Both offer rights to those seeking a patent on plant material, and the rights do not conflict. However, they fail the Radzanower test for co-existence when the philosophy of each is considered. Utility Patents are granted to discovers of man-made processes, methods, and objects. The case that the respondent relies so heavily on, Diamond v. Chakrabarty (1980), is a prime example of the differences in sexually and asexually reproduced organisms in the eyes of Congress, as relating to patents.
Other Considerations
This court has been presented with a unique and delicate opportunity in deciding this case. With the current development of intellectual property laws much more is at stake than the declaration of this one case, or even the disposition of patents in the agricultural world. A dangerous precedent would be set if the judicial system, either federal courts or the United States patent court, were allowed to expand or contract patent requirements and benefits, a subject constitutionally delegated to Congress.
The constitution specifically delegates to Congress the power to "promote the useful arts and sciences" through the granting of patents. This clause holds two very important Constitutional considerations. The first is an issue of separation of powers, and the second is a question of how to best promote the public good. Because of the importance of intellectual property in today's world, a cautious line must be taken. If this court were to begin the business of establishing patent law it would have an extremely negative impact on the effectiveness and fairness of the patent process, as well as undermine the legitimate power of the court.
Therefore, we must leave the power of establishing patent law with those to whom the founders granted it- the Congress. Through the establishment of the PVPA and PPA the Congress has made its intention known. The granting of utility patents to asexually reproducing plants under the PPA is legitimate, but the differences in the establishment of the PVPA make it clear that those same protections do not apply. Instead, Congressional intent was to limit the kinds of protections available. Not only this, but the PVPA carries some key responsibilities for those applying, and rights for the purchasers of seed that are not present in utility patents. If Congress has seen fit to make these conditions part of the protection process for sexually reproducing plants the court has no right or power to overrule them.
If the court were to rule in favor of Pioneer Hi-Bred we would be creating protection where none exists. Pioneer has sought a shortcut to legislation by redress from the court system. A ruling in their favor would substantially change Congressional legislation in such a way as to give seed companies the right to hide their modifications of plants from all other researchers, and deny farmers rights which they retain under the PVPA. More specifically, the nation's farmers would no longer be allowed to keep seed from one year to the next. This not only has the potential to destabilize American agriculture, but is also contrary to Congressional intent.
Intellectual property is an especially sensitive issue. The power to patent is the power to modify the entire development of an industry. Some analysts have suggested that the permissive licensing of patents from IBM is responsible for the growth of the home computer market toward the PC and away from Apple. Such is the power in patents. If the courts are allowed to modify patent law at a judicial or administrative level, rather than a legislative level, the effects on development could be staggering. Patents on seeds could drive some farmers out of business with burdensome seed prices and damage the economy, or they could promote one seed company so heavily over another that the power of patents would allow a monopoly to form. In either even, those who wish to research modified corn deserve the protection of the PVPA so that better strains of corn may be developed. Congress has decided that seed banks are the best way to promote the useful arts and sciences, and that is their constitutional duty.
Conclusion
This court cannot stand idly by while other judicial bodies assume legislative functions. While the constitution has granted the courts powers to interpret laws, they cannot create laws where none existed, or wipe out existing laws. By ruling that Pioneer Hi-Bred could patent corn, that is what the Court of Customs and Patent Appeals has done.
This is a dangerous precedent to let stand. Not only does it corrupt the original intent of the law, but also denies farmers and researchers the rights that Congress has seen fit to protect. Repeated abuse of these judicial powers to create laws is extraordinarily detrimental to the justice system as well. If patent law decisions were made by the courts instead of Congress it would begin a slippery slope that stands in direct conflict with our constitution, and the principles of representative democracy.
The court sees this case as a place to draw a line in the sand. The responsibility and right of Congress to regulate the granting of patents has systematically been stretched by court decisions that opened new areas of patent protection. It is, however, very clear that Congressional intent cannot be stretched to include the granting of utility patents to sexually reproducing plants.
This court finds that the extension of utility patents to those products of nature which are not specifically enumerated in USCS Title 35 have not been granted protection by Congress. Therefore, the appellate ruling in J.E.M. Agricultural v. Pioneer Hi-Bred is overturned.
Constitutional Law pays off
on
Patented Seeds
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· Score: 5, Informative
AAAAAAAHHHH! I had hoped this woulnd't happen. I just spent hours upon hours of my life writing a 12 page Constitutional Law paper over this very case, for this very reason.
A little background-
in 1930 congress said you could patent asexually reproducing plants with the Plant Patent Act.
In 1978 this was extended to Bacteria with Chakarbarty v. Diamond, Chakarbarty patented bacteria that disolved oil.
In 1970 Congress passes the Plant Variety Protection Act. This allows the patenting of sexually reproducing plants. However, some key provisions- Farmers can replant their seed, and companies have to release GM seed to seed banks for research.
Here is the problem with the JEM case- it allows UTILITY patents, the same as on any invention, on Plants. Not only is this CONTRARY to the PVPA, but it gies companies 17 years of exclusive use. The dangers here- farmers cant replant seed. If you dont understand why this is dangerous, you aren't close enough to your agrarian root. Put down the palmpilot and talk to a farmer.
The courts have overturned congressional intent. With todays "conservative" court this is becoming more of a danger. Some scholors would even go so far as to say that Rhenquist is more judicially active than Warren, just in the opposite political direction. Scary, aint it?
This also has wide ranging Intelecutal Property implications. If you can patent plants, how about code? How about your genetic sequence? Can I patent my genes and sue someone that happens to have a very close sequence? If there's much response to this topic I'll post more indepth. like I said, I've got pages and pages sitting on my computer, and waaaaay too many hours invested in this case.
While your doing this, just put a cat5e drop everywhere, dont worry about phones. Since phone works over cat5, I would put real cat5 drops everywhere, with color coding for the one that will be "mostly" phone. Just get a colored jack.
Then, keep your patch panel and hub in the garage, make the phone people install somewhat close to it (or run from the outside phone box to another patch panel thats just telephone). Then you can use patch cables to go from phone patch to wiring patch, or from the wiring patch to your hubs/switches. This kind of setup lets you use any jack, anywhere for whatever. And please listen to the people that say run rca/coax/sheilded speaker/any-other-wire-that-anything-you-have-uses . May cost more now (hey, thats what building a house is all about) but it will make your life SO much easier. It also prevents things like the chunk of coax that my dad had hotwired directly from the satelite reciever, into the attic, down his closet, across his bedroom, and to his tv. After he died my mom spent months wondering what that was before I told her.
Another thought i just had. Has anyone suggested 802.11b? If thats your thing you could forget wiring anything but an access point (or maybe2 depending on how big your house is, stories, obstructions, interference). I've not messed with it much, but it seems like a rather elegant solution when compared to so much wire. Consider security drawbacks and the like
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Right, I meant to imply just that- He's not doing anything in hollywood anyway, so its no big loss to him or the studio to have him under contract. Whereas, if the Governator had a clause saying he had to drop whatever he was doing whenever they decided to make Total Recall II: Spirit Returns then he'd have some issues. As it is, Mayhew might have to bow out of Pirates of Penzance.
He's currently living in (huh? Where?)- population 6500. The only other claim to fame is that we have one of the few drive-in movie theaters left in existance. Mr. Mayhew (who is actually a really cool and funny guy) has spent the last few years living there and acting at the local opera house. Yea, its wierd to see Chewie walk into the middle of a Rogers and Hammerstien musical. He has a daughter who is now a freshman in college, and attended Granbury High School (Far, Above the Brazos River; Bathed in golden light!) When episode II came out she was in HS, and my younger sister tells me there was intense competition to be dating her at the time of the premier. IIRC the guy who won that sweepstakes got to go to the premier as the date of Chewies daughter...
So yea- I'm not really surprised he has a contract for the next three. Hell, I wouldn't be surprised if he has a contract for the next 387. He's getting older, the condition that made him so tall has started to really fuck with his knees, and he's doing community theater. If you were him, wouldn't you do everything to assure yourself that you'd be in on it if the next shot at residuals came along?
I'll talk to the local town gossip tonight and see if I can't find out some more.
And maybe they'll sell you the courage to post logged in you troll. I posted that, because unlike the other posts of "its a fisheye lens- duh" I included an example. Ya know, some people actually haven't had the chance to mess around with them. But I forget, your a coward, and thus superior.
Then again, they could just be using wide angle "fisheye" lenses so that it takes fewer pictures to cover the same amount of span. You know like this. Anything under a 35mm lens produces this kind of effect. Just ask the pimply faced teenage at the closest Ritz camera to show you.
She was the captain of the 1989 MIT Volleyball team, and the first MIT grad to be inducted into the Verizon Academic All-American hall of fame. She was a hottie back then too- read all about it at this webpage.
Sorry, RTFA too fast to catch that. Of course, if I had, I might have just gone into convulsions and banged my head on the table till I passed out...
My girlfriend would have been concerned when I missed dinner. Perhaps I shouldn't read articles like that all the way through anyway.
That was the lamest thing I've ever read from /. Where are the numbers? Graphs? Not to mention- 800 dollars! Granted, its Canuck bucks, but still... Sheesh. Does the average bear need that time difference?
.22 and it didn't move. I shot it with a bazooka and it blew up. Therefore- bazookas are more useful than .22s. Which may be true in certian situations. But if I'm plinking in my backyard I'll spend the .07 cents that each 22 round costs me rather than hundreds on that RPG round. I dont need an 800 dollar hard drive to frag in UT, check my mail, surf the net, or read /.
Now- rewrite this article... Explain the systems it was used in. He mentions that the IDE system had a faster processor. What was it? How much faster? What kind of motherboard? I know from experience that a crappy-ass IDE controller can handicap you from the start. Whats the difference if he used a dedicated but cheap IDE controller card? This seems on the level of- I shot a pumpkin with a
All my friends were pissed that I enabled the feature to watch someone type in ICQ, and would then call them on things that they were about to type but never hit enter on...
That would explain why out NY WAN went down...
It was stupid. It wasn't funny. I've seen too many fights here there and yon. I also dont take shit from people who don't think enough of themselves to log in.
This sort of thing weren't illegal in many states (like tazers). I doubt you'll be seeing one at Sears and Roebuck anytime soon.
This story is/was still in "The Mysterious Future"- meaning that a great number of people with modpoints cant see it yet. You cant mod what you cant see...
Unfortunately thats the choice you make with a representative republic. You elect leaders whom you believe will do the right thing. Now, its open for debate whether the "right thing" that they should do is to vote how their constituencies want- or vote how they think something should actually work. It appears in this case the latter is happening. If this were really a government killing deal (like say, making all people stand on their head and pick their nose on their 21st birthday by law) then they'd just, as the saying goes, "Throw the bums out." But apparently, there isn't enough organized resistance to this to make the cabinet scared of the political ramifications. And anyway- all sorts of crackpot stuff getsa policy paper reccomending it. Get concerned now- get up in arms when it might actually happen.
Hitler was a facist.
Stalin was a communist.
Blair is... well, he's the kind of politician it takes to get things done in this crazy mixed up world we're living in.
That said, I dont think I agree with him. But Clinton's "Third Way" politics are going to be around for a while folks. Settle in and enjoy the nation building.
I too, am on a quest for the beginning of a pop-culture reference. I'm looking for the origins of the phrase "Nice shoes, wanna fuck?" I've found a usenet posting from 1991 of pickup lines, but then I stall out. PLEASE let me know if you can move this date back any earlier.
I built one of these for my drama class in high school. The problem was, we used DRY ICE as the chilling mechanism for the fog. Blow fog though a cooler full of dry ice, and it'll chill down pretty fast. The good news about this is 1) no water from regular ice. 2) dont need much dry ice. We found that 1-2 pounds of the stuff was more than sufficent to last us through a day of competition. Plus, you can toss some pennies on it for a neat metal contracting sound. The problem we ran into was forcing the fog through with the correct speed to both chill the fog into hugging the floor and also producing any kind of fog volume. We fixed that with a fan from radio shak wired into a battery pack so it would be portable enough. After that the only problem was rolling huge blankets of fog off the edge of the stage and into the audience.
Never, never, never ever will I go paperless while Im a college student. Reading page after page of congressional testimony (I'm a poli-sci student) is hard enough without having to read it off a screen. And I dont care how advanced an ipaq screen gets, it will have more eye fatigue than its dead-tree cousin. I took notes in class with a laptop for ONE semester. Then I got tired of dead batteries, sticking keys, and other stuff thats only a mild inconvienence when your not getting tested on the material. Not to mention what a classroom of 300 would sound like with the ticky-tack of keys the whole time. And who gets to sit by the ac plug? No, no no. Never happen for me. I regularly print out hardcopies of electronic sources. For one, Lexis-Nexis doesn't let you bookmark specific articles to peruse later. Dead tree does. Its called a paperclip. Not only that, but I will take my sheaf of printouts anywhere I might have 5 mins to spare. (Study at a party? If its finals week and I need the beer bad enough, you betcha). Plus its really hard to get highlighter off an ipaq. My expirence with paperless education- laptop, lexis-nexis, etc has been that its only useful when paired with real, physical paper.
In the past 6 months /. has featured 2 supreme court decisions, both of which I've written papers on. Here is my take, as a student of the 1st amendment on why you might rule this act constitutional. Now I dont agree with it, but I think this makes for an interesting and informative read.
Background
In the case of Janet Reno v. The Free Speech Coalition et al. we find a traditional confrontation between the expression of U.S. law and the constitutionally protected concept of freedom of speech. The Free Speech Coalition has challenged whether or not Congress has the constitutional authorization to regulate computer-generated images as child pornography. The case has been formed around the contention that two phrases present in the Child Pornography Prevention Act of 1996 ("CPPA" or the "Act") are so broad that they infringe on speech that the first amendment protects. Secondarily, the Free Speech Coalition argues that the law has such a chilling effect to freedom of speech that it imposes a prior restraint on the kinds of products the defendants are producing. The Act outlaws images that have been either entirely created using electronic or mechanical means, or images that have been modified by those means. These images only fall under the Act when they either appear to be child pornography, or are marketed as such.
In 1996 a congressional study expressed concern over the growing technical ability to produce adult materials that blurred the lines between protected forms of pornography and child pornography, which is an unprotected form. The study was particularly concerned with the effects that "virtual" child pornography would have on children. These "virtual" images are created by mechanical or electronic means, and may or may not involve the usage of children. In some cases children's faces are superimposed over images of pornography involving consenting adults. In other cases, the images are created without using any children, but rather are created from a computer model of an adolescent.
Congress created the CPPA in response to this concern. Their fact finding committee suggested that such a ban on "virtual" child pornography would advance legitimate government interest in several ways: by protecting children, allowing enforcement of current pornography laws, and undermining the distribution channels that the child pornography trade has been built upon. The congressional committee saw these goals as important enough to warrant the infringement upon certain types of expression.
In light of these concerns the CPPA was specifically targeted to prohibit the creation of pornographic images by electronic or mechanical means. The Free Speech Coalition has built their objection around the language used to meet this goal. The law prohibits any image that "appears to be" of a minor engaging in sexual acts, or is distributed in such a manner that it "conveys the impression" of a minor engaging in sexual acts. For these purposes sexual acts were defined as sexual intercourse, bestiality, masturbation, sadism/masochism, and lascivious display of genitals. The Free Speech Coalition asserts that this language infringes on their first amendment rights to freedom of expression because of its breadth.
High Value v. Low Value Speech
The court must caution all parties involved to remember the distinction between high-value and low-value speech. Speech is considered of a high value when it is essential to the smooth functioning of our deliberative democracy. Traditionally the First Amendment affords more protection for these types of speech in order to encourage the open dialog essential for preventing a government from becoming oppressive to its people. It is important to note when the first amendment was created the speech that was considered most important to protect uncensored was speech of a political nature. Numerous times through out this Court's history examples can be found of cases where speech was allowed because of the essential political nature of that speech. In the case of The National Socialist Party v. Skokie, 432 U.S. 43 (1977) speech that was objectionable was allowed because that speech was of a political nature. In this case it would be impossible to grant that the speech the Free Speech Coalition wishes to protect is political.
In recent years the court has only limited political speech when it met the test of "clear and present danger." Justice Holmes introduced this test in the case of Scheck v. The United States 1919 by saying that political speech must present an immediate danger to the government before restrictions can be placed upon it. The courts reasoning for this has been that speech of a political nature is essential to the functioning of a democratic society. If citizens are not allowed to express their ideas for fear of governmental action, then the government has become oppressive. For this reason the court has a stringent test for when it can regulate a citizens speech.
When cases have come before the court where the speech was not political the test for regulation is less stringent. If speech is not of a political nature then there is less reason for the government to permit it to harm citizens. In cases such as these the court has found that the government has a right to regulate speech in order to pursue its vital interests. The Supreme Court has ruled previously that "[a] content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests."
The court has defined low value speech as speech that has no political meaning. This should not be mistaken as grounds for wholesale censorship of speech because the government finds it objectionable. It is important to note this difference in the perceived value of speech. Low-value speech must naturally warrant greater scrutiny than speech of a political nature. Therefore, we must examine the permission of virtual child pornography very carefully. When speech harms or impedes the government's pursuit of its vital interests then more leeway is allowed in restricting that speech. One can plainly see that there are serious legal ramifications to the type of speech that the Free Speech Coalition seeks to protect.
Breadth
To declare a statute as overly broad is a judicial last resort that should only be used in an effort to fix a law that cannot be made constitutional in any other way. Even when the statute being considered does appear to be overly broad the court must consider the whole law. Laws that may seem overly broad at first glance may be found acceptable when considered as a whole. The case that The Free Speech Coalition presents raises objections to several clauses as being overly broad. However, the court holds the opinion that when the whole CPPA is considered all of these clauses are constitutional. There are specific reasons why we must consider each clause to be so.
In the instance of the phrase "appears to be" the statute cannot be seen as overly vague when taken in context of the entire law. Congress included the affirmative defense to resolve the individual conflicts between legitimate protected expression and the law. This section states that if a images "appears to be" of child pornography, but the promoters of that material can prove the participants are of legal age, then the image is exempt from the CPPA . The Act provides an affirmative defense as an escape clause for those that might be prosecuted falsely for producing protected forms of expression. If the expression requires a consensual sexual act between people of the appropriate age, then the affirmative defense provides for the protection of that expression even if it might be considered to fall under the act. In this manner it is important to understand that the affirmative defense is a full defense from the law, providing protection for worthy kinds of expression
The Free Speech Coalition has said that the CPPA violates the ruling in New York v. Ferber, 458 U.S. 747 (1982). They contend that the CPPA takes away the possibility of using someone who "perhaps looks younger" by making images illegal even if they contain adults of a consenting age. This is simply not true. If an image complied with the Ferber ruling then it would be protected by the affirmative defense in the CPPA. If an image portrays a person who looks younger than the age of consent, but the producer or distributor of such an image can prove they are consenting, then there is no conflict with the law.
The phrase "conveys the impression" is indeed a broad one. However, two problems arise if this court rules it overly broad. The first is the historical reluctance of the court to rule a statute overly broad because of the difficulty this would pose to lawmakers at all levels of government. Statutes must be sufficiently focused in order to prevent abuse by governmental authorities in their prosecution. However, they must be constructed broadly enough to attain their ends. Although the court finds great difficulty in striking this balance, it must consider the interests vital to securing the most free and stable state for all of its citizens to enjoy. In this case we must consider the states vital interests in protecting children from sexual predators.
Harm to Children
In recent years it has become trite to express interest in children as America's future. However, in a very legal standpoint a self-interested society must place extra weight on protecting the young for it will be their responsibility to care for the continuation of this country. For that reason one of the states most vital interest is in protecting its children.
In this light it is important to consider the protection of children as a goal that can justify the restriction of speech. Just as a patron must not cry "fire" in a crowded theatre because of the harm it would cause to theatre goers, any speech or expression that can harm children must be restricted. Child pornography has such harm in its expression that it is in the states vital interest to make every effort to eliminate this harm. In this case we are dealing with a law designed to protect children against child pornography.
While this is not a new concept in American jurisprudence, the implementation has a major variation. Previously, laws seeking to protect children against the harms of child pornography have been focused on the "primary" harmful effects of the pornography. Primary effects are best defined as those harms that are the direct result of the child's participation in the making of pornography. These effects include the actual molestation, emotional scarring, and a visual record of the acts that the child participates in. The logic behind previous laws dealing with child pornography is that these effects are so heinous that the government's interest in protecting children far outweighs the rights of the pornographer to produce these types of images. In the CPPA however, we see a shift in the intent of the law to protect children not from these primary effects, but from other, secondary effects.
These secondary effects that the CPPA focuses on are the harms that occur when a child is exposed to child pornography, rather than injured in the production of it. These effects can include sexual predation, desensitization, and forced sexual identity at a young age. These secondary effects have never been directly recognized as justification for the restriction of expression. Since these effects are not directly the result of child pornography their usage as the sole reason for regulation is problematic. However, there is a manner in which these secondary effects are important to consider.
The governments' primary interest in regulating child pornography is the protection of those that are injured in the production of the pornography. All previous laws have focused on what occurs during the making of the pornography. In these cases there are real children that are being harmed and the law is to prevent the harm. To redefine that interest as to protect those that may be injured by exposure marks a much larger shift in ideology.
This shift in ideology is not present if restrictions on distribution are used as a method to halt production. This is an important consideration when viewing Supreme Court rulings as carrying the full force of U. S. law. The tradition of the court has been to rely on precedent and stability. When the court is judicially active it has a tendency to reach beyond normal considerations to grant a higher level or protection than normal. One of the most active stances the court has taken is in Brown v. Board of Education and it took such a stance because of the political nature of the case. In Reno v. The Free Speech Coalition the speech that is being considered is not political. Although there have been periods of judicial activism, this case is not a candidate for such consideration. Therefore, we must look at this case from a distribution standpoint.
Just as with the struggle to contain illicit drugs, the government must win the war against child pornography in the channels of distribution. When defensible images are marketed as child pornography they keep the demand for actual child pornography alive. This leads to the harms inherent in the production of actual child pornography. These harms are the emotional damage to children involved, encouragement in the belief of children as sexual objects, and much higher rates of child molestation. If the viewing of "virtual" child pornography is approved then demand for such images will surely increase. The danger in increasing demand for these kinds of images is that some pornographers will almost certainly resort to using actual children in production and then claiming that the images are protected as being "virtual." When these images are purchased as "virtual" then the laws against real child pornography have been bypassed. In this manner people who would never consider harming a child might inadvertently support those who are abusing children in the production of pornography.
Enforcement of Current Laws
This leads to yet another important idea to consider. The absence of the CPPA will hinder enforcement of the many other child pornography laws, laws whose constitutionality is not in question. In cases where the "virtual" pornography is utterly indistinguishable from that involving real children the lines between permitted and non-permitted speech would be so blurred that they would prevent prosecution of real crimes in the absence of the CPPA. It is quite obvious that the first amendment does not extend protection to those persons harming children in the production of their "expression." However, without a law such as the CPPA the government's burden of proof would become so difficult that it would prevent the enforcement of legitimate laws.
In pursuing the vital interests of protecting children the court must consider the limited infringement on certain types of low-value speech against the vital interests of continuing validity of necessary laws. In this case one can easily see that whatever position is preferred initially, the restrictions placed on expression by the CPPA are neither unreasonable nor unconstitutional. The combination of the many factors that have been, and will be discussed make the decision in the case an easy one. No matter what tradition of preference is used, the CPPA satisfies the need to balance first amendment freedoms with the protection of vital interests.
Prior Restraint
As mentioned earlier, the Free Speech Coalition contends that the CPPA presents a prior restraint on speech. They present the opinion that by regulating images that only represents children, but do not involve them, the government creates a chilling atmosphere for free expression. The idea is that the statute is so broad that since a reasonable person cannot tell if an image falls under the act, then someone who produces images involving children would not be free to express himself for fear of prosecution.
There are, however, several problems with this particular thought. The court can only consider something as prior restraint when the government actively prevents the expression of a particular idea. Self-regulation from fear of prosecution cannot be considered prior restraint. If a person fears government prosecution then they only have to examine the law and their product to determine if it is banned. In the case of the CPPA, if the image does not fall under the definition presented in section 2256 or is protected by the affirmative defense then that speech is permitted. If this is the case then there is no reason to fear governmental action.
The Free Speech Coalition asserts that there is no way for a reasonable person to know whether or not an image falls under the definition of the act. This is simply not the case. In the case of the phrase "appears to be a minor" the test is simple. A perfectly workable test was introduced by a First Circuit Court ruling. The question is "whether an unsuspecting viewer would consider the depiction to be an actual individual under the age of eighteen engaging in sexual activity." In instances such as that the question always arises "What constitutes a reasonable person?" There is no pat definition to this question. The assumption made by the United States Constitution is that the vast majority of persons are indeed reasonable. This can be seen in our system of a trial by a jury of a persons peers. If the citizens of the United States are reasonable enough to determine a persons innocence or guilt in cases of high importance, such as murder, then they are capable of determining if a person appears to be under 18 years of age.
The existence of an affirmative defense also answers the question of prior restraint. If an image can be protected under the affirmative defense then there is no reason for a person to fear prosecution for that image. When these considerations are taken into account then the threat of prior restraint seems much less dangerous. With these understandings, those who produce images that are not prohibited by the CPPA have nothing to fear.
Preferred Positions
In this discussion it is important to note the judicial tradition of preferred positions. The court at various times has preferred certain philosophies of the first amendment to others. Justice Hugo Black preferred the protection of the First Amendment to all others initially. Other justices have given more credence to protecting stability and the rule of law than they have to protecting freedom of speech in all situations. In either ideology, regardless of which is initially preferred the evidence for a compelling state interest is so strong that it overrides any preference for the permission of expression involving "virtual" child pornography. Justice Ferguson expressed this feeling when he stated "Congress' interests in destroying the child pornography market and in preventing the seduction of minors outweigh virtual child pornography's exceedingly modest social value."
This coupled with the fact that such pornography can be used in the seduction of children when marketed as minors is sufficient reason to limit one form of low value expression in the quest to protect children. One large part of the congressional study that proceeded the CPPA was dedicated to the use of pornography by pedophiles. The panel reached the conclusion that "virtual" pornography is just as effective in seducing children as actual pornography. This cuts to the very heart of the debate on secondary effects. Even though "virtual" pornography does not harm children in its production it causes other real harm to children. The Free Speech Coalition has been adamant that computer generated images are victimless, and do not harm children in their creation. They ignore the fact that they harm children in their existence. As with many constitutional issues, a balance must be struck between protection of the rights guaranteed to individuals and the protection of safety for all.
In several instances the Free Speech Coalition raises possibilities where officials who wish to prosecute protected speech might misuse the law. Unfortunately, these cases are not before us now. When these hypothetical cases of abuse by law enforcement arise, then this court will be happy to hear another challenge based on such abuse. Until that time the affirmative defense is sufficient to prevent such abuses.
Other Considerations
There is one warning that I must add to my decision against the Free Speech Coalition. No matter how repugnant it may seem, there is no legal justification for the outlawing of the thought of committing an illegal act with a minor. Such a law would require the creation of an Orwellian Thought Police that the first amendment was specifically designed to protect against. However, it must be clear that such limitation only applies in creations of the mind that commit no actual harm. This case rides the boundaries between regulating thought and ensuring safety for all.
Although the Act is quite valid, the Free Speech Coalition is correct in objecting to regulations that are against "creations of the mind." Although there is no harm to actual children in production, the dangers to children are obvious. Because this harm is so close to that of pornography that does involve children, and it does cause actual harm to actual children, the regulation of computer generated images is permissible. Had these harms not been present, then the court would have found no justification to ban the speech based on content alone.
This is not to say that we have outlawed the thought of sex with minors. If the Free Speech Coalition wanted to produce literature that wrote about sexual activity with minors, and this writing did not cause them actual harm, it would be a different ruling. Simply because a thought is repugnant does not mean that it is illegal. It must be very clear that the First Amendment is being abridged not because of content, but because of harm. The First Amendment is intended to protect speech that is disagreeable to the government, but not to protect speech that causes harm.
Conclusions
The decision to rule against the Free Speech Coalition is a difficult one. While I am concerned with any ruling that restricts freedom of speech, it is difficult to justify overturning the CPPA on the grounds that virtual child pornography should be protected. It is my opinion that the need for freedom of expression does not outweigh the harms that can be caused by the types of expression the Free Speech Coalition seeks protection for. In this case Justice Holmes test of "Clear and present danger" is much too stringent to use when considering restricting "virtual" pornography. While this type of expression does not present an immediate danger to the survival of the United States, its danger to members of our country is sufficient to justify its regulation.
For these reasons I must rule against the Free Speech Coalition.
that there will be actual news today, but I wont know till tomorrow, because I'm about to turn my computer off and go run and hide. Thank god Drudge didn't succumb.
Hum... I go to the same country as the famous coffee maker, and it has to be on the exact OPPOSITE end as me. Hamburg is 8 hours and 250 DM from where I'm going to be. Oh well, have to settle for beer for breakfast instead of coffee.
Hurm... I'll be in Germany this coming month... I wonder if I found the Speigel office if they'd let me have my picture taken with it. Or, perhaps even have a cup of coffee from it- oh the joy in that thought. What better way to celebrate a trip to a foreign country than by paying homage to the first internationally known coffee maker.
On a side note- After seeing that translation page I have never been more glad that I took german in high school and college. Egads.
I guess what I'm trying to say is that from an economic stand point, these patents will encourage companies to make better breeds of food. With more information, more people will begin to breed or genetically engineer their own seed. After that their ideas could be patented in a GPL-like way so that corporations couldn't control how the seed will be used. Unfortunately, this is exactly what the decision rules out. Under previous law, this was the case. GM plants had to be submitted to seed banks so researchers could examine, improve, modify, and reuse the kinds of developments that had been made. If they were different enough from the parent, they could even get protection for their plants, provided they submitted them to seed banks as well. What this ruling does however is make seeds subject to utility patents. These patents are exclusive, require no disclosure, and are very restrictive. Therefore, you dont get to see others work. You dont get enhanced knowledge. You dont get a starting point for more research. you get companies like Monsanto, Dow, and Pioneer-hibred forcing farmers to buy new seed. Every year. Forever. Not sharing with researchers. Patenting even more products.
As follows- long, deal with it. Written in the style of me being a deciding judge. Deal with it.
Background
Pioneer Hi-Bred International is the largest producer of seed corn in the world, and as such holds 17 patents for sexually reproducing corn plants. The patents that Pioneer holds have been granted under Section 101 of the Patent and Trademark Act, which governs the patent process for most patentable discoveries. This law, known as a utility patent, is general, allowing the holder to place restrictions on the use of their discoveries. Pioneer Hi-Bred distributed a genetically modified and patented form of corn to J.E.M. Agricultural with the condition that it be used only to produce "'grain and/or forage'". J.E.M. Ag then repackaged and resold the seed corn, in violation of the terms of sale by patent conditions. Pioneer Hi-Bred responded by filing suit for patent infringement.
J.E.M. countered with the claim that the patents granted to Pioneer are invalid. They base this claim on the contention that corn, a sexually reproducing plant, is not subject to patent under 35 USCS 101. This statute states that "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." Sections 102 and 103 exclude any law of nature or living organism from this protection. Justice White explains "The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute [ 101] was enacted to protect." J.E.M claims that since the patents Pioneer holds are inadmissible by federal statue, they are void, and they lack standing to sue.
Court Decisions
The decision in Chakrabarty seemingly prevents any application of the Flook decision limiting the expansion of patent protection. Pioneer argues that the court is to use its ability to interpret law created by Congress in order to grant patent protection for a category not included in any legislative history of patents. Their reasoning is parroted out of Chakrabarty - "It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is "the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803)." The respondent would have this court find ambiguity in the application of 101 in order to interpret the statute so as to extend utility patent protection. This cannot be done in all good conscience, as it requires a vast over use of the courts power of legislative review. The abilities granted by the Marbury case are too important to wield as a sword to be used to create a legal fiction convenient to the courts political views.
Further discussion will reveal why the logic presented in Chakrabarty does not hold in this case. Throughout the interpretation of this case it is important to keep in mind the separation of powers. In every case ask- "Is this the domain of the courts or the legislation?" The overwhelming answer is legislation. This court considers the issue only to rectify the damage that has been done in lower courts, and to restore the meaning that Congress spelled out when they passed the legislation pertinent to this case. An examination of that legislation will reveal why this court does not accept the reasoning presented by Pioneer.
Law
There have been a number of efforts to deal with the emerging field of genetic engineering and manipulation in plants as it relates to patent protection. The legislative history has developed slowly, following the development of science to both produce and identify the kinds of living materials that are eligible for protection, and what those protections might be. It has only been recently that the judicial system has overstepped its bounds to decide, by thinly veiled allusions to revered precedent, what Congress must have meant. A close examination shows that Congress has never intended to extend utility patent protection to sexually reproducing plants. No explicit legislative evidence exists to substantiate this position
Until 1930 it was explicitly understood that creations of living plants were inherently excluded from edibility for patents. During that year Congress passed the Plant Patent Act, which incorporated asexually reproducing plants into the precursor of the current U.S. Patent law- title 35. The PPA was a direct modification of the current statue, reducing the requirement for description, but only applying it to asexually reproduced plants that could be reliably reproduced. This direct modification is important when considering the way that future changes were made.
Then next change to patent law came in 1952 when Congress re-enacted the Patent Act. Among the changes was the replacement of the word "art" with "process". This enactment also codified the changes from 1930 into the new section into 101. This change affirmed the belief or Congress that asexually reproducing plants were subject to utility patents. Once again, this was a direct, codified change to the actual patent act as it pertained to plants. The restrictions on identification were loosened to the point that they were met with a color photograph. Besides these kinds of technical changes, the general requirements such as novelty and man-made construction were retained. Plants patented under this act were also protected like other patents. This is most certainly not the case with the PVPA protecting sexually reproduced plants.
The last change occurred in 1970, and dealt with providing protection to sexually reproducing plants. However, Congress approached the protection of plants in the Plant Variety Protection Act differently. The PVPA did not extend utility patents to sexually reproducing plants, but rather provided them protection with some key stipulations- the ability for farmers to keep seed year to year, and the requirement of submitting samples to seed banks. The PVPA was incorporated as a separate statue, not codified as part of Title 35, Section 101. By this difference it is evident that Congress did not consider the PVPA to be directly equivalent to the PPA. This is however, what Pioneer asks, and what the lower courts have ruled. The differences in the statues demand that they not be considered as equals. Therefore, the Chakrabarty ruling, granting utility patents to asexually reproducing plants fails to influence this court that sexually reproducing plants should be treated in the same way.
Chakrabarty asks that the court interpret Congressional meaning in patent law when ambiguity appears. The question of patent protection for plants has been decided on three times in the last 72 years. For an issue of rather fine political and constitutional importance this is an enormous body of legislative action. Congress has systematically applied greater and greater protection to those that develop variations on living matter. Protection for living matter began with the PPA's application to asexually reproduced plants and has most recently been extended to sexually reduced plants by the PVPA. In none of these three actions has Congress granted utility patent protection for sexually reproducing plants.
Instead, they have established an entirely different protection scheme, complete with its own certification process, rights for holders, and rights for the general public and researchers. This must be taken as a clear signal for what protections Congress wished to grant sexually reproducing plants. In light of these decisions it would be a severe usurpation of Congressional power if this court were to decide that Congress had intended to protect sexually reproducing plants with utility patents. However, this is exactly what Pioneer asks for.
Pioneer Hi-Bred cites the fact that the Court of Customs and Patent Appeals has ruled in their favor to grant the patent as judicial precedent for this court to follow. It is important to note that Parker v. Flook was a reversal of a Court of Customs and Patent Appeals decision, and that decision set up the affirmance of an appeal in Diamond v. Chakrabarty. The court holds little precedent judicially as it is primarily an administrative body. This court finds little reason to believe that the Patent Court acted in accordance with the desires exhibited by Congress through the 1970 PVPA.
Natural Law Exemption
The Chakrabarty case only bears a surface resemblance to the case that has been presented here before the court. At issue was a similar topic, whether or not the patent office could grant a utility patent for a living organism, but the granting of that patent relied on a very different premise than is present here. In Chakrabarty the court allowed the patent not solely because of the PPA, but because the patent application clearly met standards already in place and the PPA. At issue was the creation of a "novel" organism. Much like the development of a new machine the bacteria that Chakrabarty patented had properties that no other patented product had. The fact that it reproduced asexually allowed it to be granted a utility patent under the PPA. Pioneer's claims do not meet either requirement. The PPA explicitly grants utility patent protection for asexually reproducing plants only. The PVPA allows a measure of protection for sexually reproducing plants, but not under utility patent law.
As importantly, the patents filed by Pioneer Hi-Bred would not meet legislative requirements even if the PPA applied to sexually reproduced seeds. In the Chakrabarty case, the bacteria did something that no bacteria had ever done through natural mutation- they dissolved oil spills. Pioneer makes no such claim here. Their corn does not clean up toxic waste, revolutionize transportation, or do quantum mechanics. It is simply corn. Granted, the corn has improvements, but the improvements are such that they are simply extensions of natural properties of corn.
In order for an invention to be patented it must "have never occurred in nature." This requirement was part of the original 1793 patent act, and has remained unchanged through all modifications. The reason for this is simple- if patents are granted on natural processes, a single patent could corner an entire area of invention. A patent on convection could greatly affect cooking, incubation, heating, and many industrial processes. Likewise, a discovery from nature belongs to the public in trust, to experiment on, develop from, and create unique products and processes. The accelerated evolution of a sexually reproducing plant to exaggerate natural traits does not meet this criteria. Once again, the case presented by Pioneer fails to meet any test set up by either the Supreme Court of the Congress.
Without a definitive man made modification there are several recourses that Pioneer may pursue. They may obtain utility patents on a manner for the actual process of modifying corn, or raising the seed once it has been produced. However, they may not obtain a utility patent on the corn itself. Therefore, they must find alternative methods for protecting the integrity and rights to the specific breeds of corn that they produce.
Restrictions versus Alternative Methods
At the center of this debate is the question of whether the presence of the PVAP and the PPA exclude the possibility of utility patent protection. The lower courts found compelling evidence that the Radzanower test had been met. When two statutes cover the same ground, if they are found to be capable of co-existing, the court is to hold both as effective. However, this court finds that the lower court was mistaken in one area- the PVPA and the application of utility patents to plants are not capable of coexisting. This is not because the letter of the law is mutually exclusive, but because the PVPA makes clear what protection that Congress wished to extend to plants.
When Pioneer applied for a utility patent to protect their corn derivatives, they also applied for protection under the PVPA. There has been much debate about the legitimacy of doing this. The question presented is whether or not the PVPA is the sole means of protection for sexually reproducing plants. This court contends that the history surrounding the creation of the PVPA makes it the sole protection for sexually reproducing plants, and that the utility patents law cannot be construed to encompass additional protection outside the PVPA.
The legislative history shows ample cause for rejecting this argument. In 1930 the PPA was created as a direct change to the Patent Act, and included in the 1952 re-codification. This provides evidence to suggest that Congress intended the PPA to extend the utility patents in a new direction- the ability to patent asexually reproducing organisms. Under this specific setup, the protection from both clauses is effective and capable of coexisting. Not only are they complimentary legally, but also in the reason and form of their creation. The Radzanower test has been met since both can co-exist, and so it is the courts ruling that a patent may be held under utility patents as well as the PPA, because they are in fact, one and the same. This is not the case with the PVPA.
The PVPA was enacted in 1970 not as an extension, amendment, or re-enactment of the Patent Act, but rather a separate statute. Whereas the PPA relaxed the restrictions on utility patents in order to protect asexually reproduced plants, the PVPA gave entirely different protection, outside the scope of utility patents. This difference is important to consider when reasoning the kinds of protection that Congress intended. The PVPA and utility patents do not conflict in their statutory language. Both offer rights to those seeking a patent on plant material, and the rights do not conflict. However, they fail the Radzanower test for co-existence when the philosophy of each is considered. Utility Patents are granted to discovers of man-made processes, methods, and objects. The case that the respondent relies so heavily on, Diamond v. Chakrabarty (1980), is a prime example of the differences in sexually and asexually reproduced organisms in the eyes of Congress, as relating to patents.
Other Considerations
This court has been presented with a unique and delicate opportunity in deciding this case. With the current development of intellectual property laws much more is at stake than the declaration of this one case, or even the disposition of patents in the agricultural world. A dangerous precedent would be set if the judicial system, either federal courts or the United States patent court, were allowed to expand or contract patent requirements and benefits, a subject constitutionally delegated to Congress.
The constitution specifically delegates to Congress the power to "promote the useful arts and sciences" through the granting of patents. This clause holds two very important Constitutional considerations. The first is an issue of separation of powers, and the second is a question of how to best promote the public good. Because of the importance of intellectual property in today's world, a cautious line must be taken. If this court were to begin the business of establishing patent law it would have an extremely negative impact on the effectiveness and fairness of the patent process, as well as undermine the legitimate power of the court.
Therefore, we must leave the power of establishing patent law with those to whom the founders granted it- the Congress. Through the establishment of the PVPA and PPA the Congress has made its intention known. The granting of utility patents to asexually reproducing plants under the PPA is legitimate, but the differences in the establishment of the PVPA make it clear that those same protections do not apply. Instead, Congressional intent was to limit the kinds of protections available. Not only this, but the PVPA carries some key responsibilities for those applying, and rights for the purchasers of seed that are not present in utility patents. If Congress has seen fit to make these conditions part of the protection process for sexually reproducing plants the court has no right or power to overrule them.
If the court were to rule in favor of Pioneer Hi-Bred we would be creating protection where none exists. Pioneer has sought a shortcut to legislation by redress from the court system. A ruling in their favor would substantially change Congressional legislation in such a way as to give seed companies the right to hide their modifications of plants from all other researchers, and deny farmers rights which they retain under the PVPA. More specifically, the nation's farmers would no longer be allowed to keep seed from one year to the next. This not only has the potential to destabilize American agriculture, but is also contrary to Congressional intent.
Intellectual property is an especially sensitive issue. The power to patent is the power to modify the entire development of an industry. Some analysts have suggested that the permissive licensing of patents from IBM is responsible for the growth of the home computer market toward the PC and away from Apple. Such is the power in patents. If the courts are allowed to modify patent law at a judicial or administrative level, rather than a legislative level, the effects on development could be staggering. Patents on seeds could drive some farmers out of business with burdensome seed prices and damage the economy, or they could promote one seed company so heavily over another that the power of patents would allow a monopoly to form. In either even, those who wish to research modified corn deserve the protection of the PVPA so that better strains of corn may be developed. Congress has decided that seed banks are the best way to promote the useful arts and sciences, and that is their constitutional duty.
Conclusion
This court cannot stand idly by while other judicial bodies assume legislative functions. While the constitution has granted the courts powers to interpret laws, they cannot create laws where none existed, or wipe out existing laws. By ruling that Pioneer Hi-Bred could patent corn, that is what the Court of Customs and Patent Appeals has done.
This is a dangerous precedent to let stand. Not only does it corrupt the original intent of the law, but also denies farmers and researchers the rights that Congress has seen fit to protect. Repeated abuse of these judicial powers to create laws is extraordinarily detrimental to the justice system as well. If patent law decisions were made by the courts instead of Congress it would begin a slippery slope that stands in direct conflict with our constitution, and the principles of representative democracy.
The court sees this case as a place to draw a line in the sand. The responsibility and right of Congress to regulate the granting of patents has systematically been stretched by court decisions that opened new areas of patent protection. It is, however, very clear that Congressional intent cannot be stretched to include the granting of utility patents to sexually reproducing plants.
This court finds that the extension of utility patents to those products of nature which are not specifically enumerated in USCS Title 35 have not been granted protection by Congress. Therefore, the appellate ruling in J.E.M. Agricultural v. Pioneer Hi-Bred is overturned.
AAAAAAAHHHH! I had hoped this woulnd't happen. I just spent hours upon hours of my life writing a 12 page Constitutional Law paper over this very case, for this very reason.
A little background-
in 1930 congress said you could patent asexually reproducing plants with the Plant Patent Act.
In 1978 this was extended to Bacteria with Chakarbarty v. Diamond, Chakarbarty patented bacteria that disolved oil.
In 1970 Congress passes the Plant Variety Protection Act. This allows the patenting of sexually reproducing plants. However, some key provisions- Farmers can replant their seed, and companies have to release GM seed to seed banks for research.
Here is the problem with the JEM case- it allows UTILITY patents, the same as on any invention, on Plants. Not only is this CONTRARY to the PVPA, but it gies companies 17 years of exclusive use. The dangers here- farmers cant replant seed. If you dont understand why this is dangerous, you aren't close enough to your agrarian root. Put down the palmpilot and talk to a farmer.
The courts have overturned congressional intent. With todays "conservative" court this is becoming more of a danger. Some scholors would even go so far as to say that Rhenquist is more judicially active than Warren, just in the opposite political direction. Scary, aint it?
This also has wide ranging Intelecutal Property implications. If you can patent plants, how about code? How about your genetic sequence? Can I patent my genes and sue someone that happens to have a very close sequence? If there's much response to this topic I'll post more indepth. like I said, I've got pages and pages sitting on my computer, and waaaaay too many hours invested in this case.
While your doing this, just put a cat5e drop everywhere, dont worry about phones. Since phone works over cat5, I would put real cat5 drops everywhere, with color coding for the one that will be "mostly" phone. Just get a colored jack.
s . May cost more now (hey, thats what building a house is all about) but it will make your life SO much easier. It also prevents things like the chunk of coax that my dad had hotwired directly from the satelite reciever, into the attic, down his closet, across his bedroom, and to his tv. After he died my mom spent months wondering what that was before I told her.
Then, keep your patch panel and hub in the garage, make the phone people install somewhat close to it (or run from the outside phone box to another patch panel thats just telephone). Then you can use patch cables to go from phone patch to wiring patch, or from the wiring patch to your hubs/switches. This kind of setup lets you use any jack, anywhere for whatever. And please listen to the people that say run rca/coax/sheilded speaker/any-other-wire-that-anything-you-have-use
Another thought i just had. Has anyone suggested 802.11b? If thats your thing you could forget wiring anything but an access point (or maybe2 depending on how big your house is, stories, obstructions, interference). I've not messed with it much, but it seems like a rather elegant solution when compared to so much wire. Consider security drawbacks and the like