Raymond Van Dyke

As Robert Frost poetically noted, two roads diverged in the woods he was exploring. One road was well trod, easy to traverse, and the other less traveled, difficult and getting weedy. Sadly, although Americans pride themselves on innovation, American innovation, particularly inventorship, is now the difficult road. Bad decisions made in previous forks in the road have gradually undermined the innovative spirit in our nation, but some inventors in Washington, DC, next week want to change course before we automatically go down the well-trod path.

Law firms are not at all immune to this pandemic since their clients aren’t.  Most law firms have cut partner pay, and cut the pay of associates also.  They are also firing and furloughing partners and associates.  We all know that most of Society cares not that lawyers suffer, economically that is.  But there is a class of lawyers, actually lawyers-to-be, that we should have sympathy and empathy for: incoming first year associates.  The Class of 2020 will have a very tough time, even tougher than the Classes of the last downturn in 2008 and 2009.  The associates that suffered then are likely partners now, and have more empathy.

Mathematics is a fascinating subject to some people, but a horror to most. Formulas and rules abound to govern purely abstract relationships that appear alien to ordinary life. Yet, mathematical laws govern our entire world, and the Universe. Physicist Max Tegmark believes that the Universe is itself entirely mathematics, i.e., we are all elaborate formulas in some metaverse. Embedded within the mathematical laws are inscrutable constants, such as pi and e, where e is the so-called base of the natural logarithm. e is roughly 2.718281828…. Although Pi (3.14159…) has an official day, 3-14, or March 14, e has yet to acquire this honor. Last year, I wrote in honor of World Pi Day. This year, I propose making 2-7, or February 7, National or World e Day.

In his Categorical Imperative, Kant simplifies a moral argument position for an individual by asking a question: if you thought that your position or Statement would be Universal, i.e., applicable to all people, it would have the stance of a Categorical Imperative and thus you must do it. A proposed Categorical Imperative is the following Statement: creators should be protected against the unlawful taking of their creation by others… Allowing the free taking of ideas, content and valuable data, i.e., the fruits of individual intellectual endeavor, would disrupt capitalism in a radical way. The resulting more secretive approach in support of the above free-riding Statement would be akin to a Communist environment where the State owned everything and the citizen owned nothing, i.e., the people “consented” to this.

Our patent system was also been built upon classical rules and understandings, e.g., earlier patent systems, and the thoughts of Rousseau, Locke and others who influenced our Founders in the creation of our patent system. For over 200 years our patent system has been operating within the paradigm or mindset that innovation should be encouraged by providing a personal incentive to benefit the innovator (in the short term) and Society as a whole (over the long term). This reality, however, is now under question, i.e., the George Washington Interpretation that a patent system is good for the nation.

In 1790, the U.S. patent laws were first enacted and individuals could obtain a patent under the new federal government. For about a century beforehand, British citizens in the various parts of the American colonies could obtain patents for that region, and Britain and other European countries had patent laws as well. But the new American patent system was different: it was democratized in that anyone could participate, without the need for consent from the Crown. The origins of patent laws date back to the Fifteenth Century when Florentine regents sought to attract and keep innovators and their inventions. Elizabeth I was a keen ruler in passing various patent laws to encourage foreigners with ideas and inventions to relocate to Britain, as well as encourage domestic innovation.

These issues of fairness and fair use are played out in the recent Oracle v. Google decision. In a convoluted case that has gone up to the Supreme Court once and will again, the Federal Circuit finally was able to make a ruling that the blatant, verbatim copying of computer code is not a fair use. At issue were the copying of 37 Oracle programs or apps, constituting over 11,500 lines of code, by Google for their use in the Android operating system for smart phones and other uses… In the Federal Circuit’s final analysis of the four factors, they again noted that Google could have written their own code or properly licensed with Oracle, but instead chose to copy. “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Accordingly, the Federal Circuit held that Google’s use of the Oracle code was not a fair use.

Today is National and World Pi Day because the numbers of the day (3-14) match the first three digits for pi or , the Greek letter, 3.1415926535897…  Although most people think that  is relegated to just geometry and trigonometry, the number pervades all of mathematics and the natural sciences, even statistics.