Tuesday, May 31, 2016

A LOADED GUN: EMILY DICKINSON FOR THE 21ST CENTURY by Jerome CharynBellevue Literary Press, 256 pp., $19.95

Todd-Bingham Picture Collection and Family Papers, Yale University Manuscripts / Wikimedia

Emily Dickinson Isn’t You
Biographers try to see themselves in the reclusive poet, and fail to show us who she really was.

“I couldn’t let go,” Jerome Charyn begins his author’s note to A Loaded Gun: Emily Dickinson for the 21st Century, as if remembering a severed romantic relationship. He remained transfixed after writing a fictionalized account of Dickinson’s life, The Secret Life of Emily Dickinson, in which he inhabited, or vampirized, as he says, the nineteenth-century poet’s voice, detailing flings with noted scholars and tattooed handymen—all imagined of course. He spent two years on the book, culling through all the letters, biographies, studies, accounts, and poems he could. “I never believed much in her spinsterhood and shriveled sexuality,” Charyn writes in his new book. “Yet she was a spinster in a way, a spinner of words. Spiders were also known as spinsters, and like a spider, she spun her meticulous web…”
A LOADED GUN: EMILY DICKINSON FOR THE 21ST CENTURY by Jerome CharynBellevue Literary Press, 256 pp., $19.95

Her seduction of Charyn implies her lingering claim on the present, but his inability to “let it go” introduces his attempt to put his mark on her. In the twenty-first century, Emily Dickinson has become very much about our selves, an interpretation that has been allowed to flourish partly because of her anonymity: The bulk of her poems, of course, were published after she died, and she lived with her parents all her life, unmarried and leaving letters that only hint at possible lovers, hardly ever leaving her home. During the last 30 years, it has been many writers’ impulse to try her on, explore the “masks,” as Charyn calls them, that she wore in her poems, and give motive to her writings through more expressive means. Among the better-known works there’s Susan Howe’s My Emily Dickinson, which traces the works that informed Dickinson’s rich interior life; Adrienne Rich’s essay “Vesuvius at Home,” which sees her as feminist forebear; Maureen McLane’s “My Emily Dickinson” from her biblio-memoir My Poets; and Camille Paglia’s essay from Sexual Personae, comparing her to the Marquis de Sade.

Charyn’s book gives a checkered history of the many interpretations of Dickinson, at times attempting to connect them to her actual biography. He starts to trace key disputes in Emily Dickinson scholarship, from the intended recipient for her Master letters—a major clue to a possible hidden romance—to her jumbled publication history. (Her editors Thomas Wentworth Higginson and Mabel Loomis Todd removed her punctuation, then her heirs began to find more unpublished poetry and letters—as did their children.) There was no complete volume of Dickinson’s poetry until 1955. This volume, when it finally appeared, led to a fuller picture of Dickinson by 1976, when “Vesuvius at Home” and the popular one-woman play The Belle of Amherst, which Charyn writes much about, both came out.

The goal of such writings is ostensibly to better know Emily Dickinson, though by means of murky, refracted knowledge—as if making sense out of the same image as projected through a hall of mirrors. But in Charyn’s book, which leans heavily on his own personal web of associations, some sense of who Dickinson might have been ends up feeling more out of reach.

A Loaded Gun progresses with a snaking chronology, imitating the slipperiness of its subject. One chapter, “The Two Emilys—and the Earl,” examines Emily Norcross Dickinson, Emily Sr., in detail, along with Emily’s father, as a portrait of the people who ostensibly best knew her; another chapter is devoted to Dickinson’s very close relationship with her dog, Carlo, her only recorded long-term companion.

Charyn’s book quickly sets up themes that reflect more about his own cultural tastes than Dickinson. He examines, for instance, figures who have been as enchanted as he is with Dickinson as muse. The chapter “Ballerinas in a Box” mostly traces the artist Joseph Cornell’s near-obsession with Dickinson, but Charyn takes such a circuitous path that the portrait becomes muddled. He opens with quotes from male poets and critics who revived Dickinson’s reputation in the early twentieth century. Allen Tate, he tells us, wrote in 1932 that many were mistaken that “no virgin can know enough to write poetry,” but went on to call her “a dominating spinster whose very sweetness must have been formidable.”In the twenty-first century, Emily Dickinson has become very much about our selves.

Charyn finds fault with the group, but limits the argument to two sides, basically between those who called Dickinson a spinster and those who took his own more sensational view. He introduces Rebecca Patterson’s 1951 book, The Riddle of Emily Dickinson,which proposed that Dickinson had a romance with one Kate Scott. Sifting through all of this unrelated material, he attempts to pin Dickinson to his original idea, that she might have intended to seduce him.

This winding path somehow leads to Cornell, whose box construction “Toward the Blue Peninsula: for Emily Dickinson” (c. 1953) is dedicated to the poet. Charyn tries to show how there is a strong link between the two. “If her poems are like his boxes, a place where secrets are kept, his boxes are like her poems, the place of unlikely things to happen,” Charles Simic is quoted as saying. Finding similarities between voices in the crowd surrounding Dickinson can be an interesting exercise, if random; though not as random as when Charyn draws a comparison between Dickinson and the dancing of Allegra Kent. The pair share little besides Charyn’s admiration.

The impulse of writers is to read Dickinson herself like a text—with all the problems of interpretation that follow. Howe has spoken about this before. In her 2012 Paris Review interview, she expressed frustration with those who try to over-decipher the intended of the Master letters: “The constant need of some scholars to decode in these letters a flesh-and-blood lover belittles the ferocity of her poetic calling,” she said.

In his upcoming book The Hatred of Poetry, Ben Lerner writes that Dickinson’s dissonance is exactly her genius: “The status of a Dickinson composition is itself up for grabs: is it a poem or some other kind of object? A work of visual art? What about, for instance, her ‘envelope writings’—gently pried apart envelopes whose physical shapes, some have argued, interact purposefully with Dickinson’s language? Are her letters poems?” She has become such a fascinating figure to write through, in the age of visibility, in part because her art demands no concrete character—exactly why it proves frustrating when this is misread as an invitation to create one.

In one of his chapters, Charyn has a conversation with the Emily Dickinson scholar Christopher Benfey, in which the two men agonize over how unknown Dickinson still is, the way two might commiserate over lost love.

Benfey compares “the cunning and craft” of her letters to Matthew Higginson to performance art, hypothesizing that she meant for him to serve as “a mirror, a conduit, a messenger.” He even goes on to say Higginson and Mabel Loomis Todd were akin to publicists. “She gives them just the amount they need; she withholds access in just the right way.” Charyn’s Dickinson may be a seductress, but in this reading of her, clutching at every clue, she becomes more unreal than usual. In hot pursuit, she becomes dreamlike and open-ended; she could be anything to anyone.

There is very little new learned in A Loaded Gun about Dickinson’s life, save for in the very last chapter. Charyn secured an interview with Sam Carlo, the owner of a daguerreotype of Dickinson—one of only two known pictures of her. He found the image of her at a junk sale in 1995.

If we otherwise know Dickinson only through deceptive fragments, then why save the story of the newest tangible image we have for the book’s last pages? Here, her indecipherability fuels pursuit—the oldest lover’s game, and a cheap one. “She’s already gone by the time we get near,” Charyn writes, with relish. She remains unknowable throughout the chase—leading us back to the Emily Dickinson he made in his image, in the mirror.

Monday, May 30, 2016

How much is a patent worth?True Patent Value: Defining Quality in Patents and Patent Portfolios Larry M. Goldstein

How much is a patent worth?

True Patent Value: Defining Quality in Patents and
Patent Portfolios
Larry M. Goldstein
True Value Press (self published), 2013
ISBN: 978-0989554107, Soft cover, 500 pp (þ 68 pp)
Price: $104.50

The book fills a gap between the ‘how to’ guides, aimed
towards patent attorneys, and the guides to complex valuation
and economics of intellectual property. Goldstein’s
book is thus of interest to the directors of companies, to
investors and non-practising entities. It can also help the
heads of research and development (R&D) by showing how
a patent application fits into a bigger picture.

The book is of interest to patent attorneys as well. In fact,
there are several audiences that the author envisages, and
he spends a couple of chapters giving an overview of the
fundamentals of patent law in terms of each audience’s

Goldstein acknowledges that patents may relate to more
or less any field, but goes on to divide the patent world
between biotechnology, chemical and pharmaceutical
(BCP) and information and communication technologies
(ICT). Goldstein’s considerable experience is in telecommunications,
including code division multiple access and
the like. Not surprisingly, his background and personal
history have coloured his perspective. Telecommunications
is a very fast moving area where devices frequently infringe
a large number of patents, and patent pools have developed
to simplify licensing. Non-practising entities (trolls) are
generally active in the computing field. The book focuses
on patents in the ICT field.
* Patent Attorney, IP Factor, Israel’s International Patent and Trademark
Attorney. Email: mfactor@ipfactor.co.il.
168 IP IN REVIEW Journal of Intellectual Property Law & Practice, 2014, Vol. 9, No. 2
 by guest on May 30, 2016 http://jiplp.oxfordjournals.org/ Downloaded from
After acknowledgments that include a quote by Hillel,
the Pharisee Jewish leader in the Second Temple period,
Goldstein provides a preface in which he raises four basic
questions: (i) Why another book about patents?; (ii) Who
will find this book useful?; (iii) What does the book cover?;
and (iv) What bits should each audience read? He provides
a generally useful table showing each segment of his target
audience the sections they should read, and the order in
which they should do so.1
Goldstein associates the value of a patent with being
able to sell it or prevent competitors from practising it.
This has validity in fast-moving fields like telecommunications,
where a product invariably infringes many patents.
The value of a pharmaceutical formulation is very different,
since the value of licensing or sale is almost never considered
and almost all value is in the promise of limited
monopolistic sales conditions that justify the costs of

Goldstein differentiates between the type of automated
evaluation that can be carried out by a non-patent expert
who can count the claims and see whether they are for
methods, devices or systems. He candidly suggests that, in
the very big patent sales, most patents are considered
superficially in such a manner. The more valuable patents
are subjected to a more expert analysis, in which claims are
reviewed in terms of the specification and the file wrapper
is examined. He notes that value may be affected by external
events such as discovery of an earlier citation, or
perhaps a patent-killing disclosure by the inventor.
Nevertheless, Goldstein finds value only in issued
patents, and particularly in issued patents that are infringed
now or will be infringed in the very near future. He does
not consider as value the potential value inherent in
pending applications, or in patents that are not now
infringed. I think this is a little like ignoring potential
energy of a wound spring or of a rock pushed up a hill. I
note that in the Boston Consulting Book on valuing
patents by Mark Blaxill and Ralph Eckardt,2 the analogy of
digital value fluctuations is used, in that worth can fluctuate
widely dependent on external circumstances.
There are some fairly serious analyses of famous
patents that were sold or litigated, and these provide
insight into a patent’s worth. Goldstein’s analysis examines
claims for ambiguities such as non-defined terms, inconsistent
terminology and non-standard phrasing. He is
a believer in claim differentiation and in creating patent
thickets as a strategy to ensure that at least something
survives claim reconstruction, and considers that multiple
claims for the same or closely linked inventions
provide much additional protection, hence value, as compared
to single patents.

Goldstein is correct that many of the litigated patents
and the most valuable patents are in either the pharma or
telecommunications sectors, but there are also mechanical
inventions of value, including some remarkably simple
ideas like the patented concepts behind Tetrapak, Velcro or
the zip fastener whose patents prevented competition and
enabled manufacturing without competition, and thus generated
great wealth.

I suspect that Goldstein’s insights will be helpful in
understanding the huge sums paid out in infringement
cases and the large sums spent in purchasing patents for
telecommunications. I do not think that other sectors of
the patent industry follow similar dynamics. Consequently,
pharmaceutical developers, and developers of methods in
chemistry or biology, may find the book less useful.
Nevertheless, for telecommunications and similar industries,
his insights are highly relevant, and I think this book
is a worthwhile read for anyone in the field, including both
practitioners and their clients. Goldstein has published this
book himself, so the cost is much less than that of similarly
sized volumes from legal publishers. The quality is by no
means inferior, however; so I consider this good value for
money. Sample pages may be reviewed at Goldstein’s
website, www.truepatentvalue.com.

The Fourth Industrial RevolutionJan 12, 2016 by Prof Klaus Schwab Paperback

Performers depict the Industrial Revolution during the opening ceremony of the London 2012 Olympic Games
 Performers depict the Industrial Revolution during the opening ceremony of the London 2012 Olympic Games. Technological change has always been disruptive. 
Until the spasm in the markets interfered, Davos 2016 was supposed to be about how humankind will cope in the new age of the smart machine. While share prices were gyrating, the bigger picture was obscured. There is a fourth industrial revolution happening and it is likely to be as profound in its effects as the previous three.

The first Industrial Revolution was about harnessing steam power so that muscle could be replaced by machines. The second was driven by electricity and a cluster of inventions from the late 19th century onwards – including the internal combustion engine, the aeroplane and moving pictures. A third revolution began in the 1960s and was based on digital technology, personal computing and the development of the internet. Industrial Revolution 4.0 will be shaped by a fresh wave of innovation in areas such as driverless cars, smart robotics, materials that are lighter and tougher, and a manufacturing process built around 3D printing.

A pity then that the World Economic Forum was overshadowed by falling share prices and the cost of oil because the impact of the fourth industrial revolution will be felt long after investors have stopped fretting about a hard landing in China.

Davos was, in some ways, a good forum for the gathering of technology pioneers, business leaders and politicians to consider some of the implications of what will be a very different sort of economy. Just to take one example, smart machines will soon be able to replace all sorts of workers, from accountants to delivery drivers and from estate agents to people handling routine motor insurance claims. On one estimate, 47% of US jobs are at risk from automation. This is Joseph Schumpeter’s “gales of creative destruction” with a vengeance.

There are three myths about Industrial Revolution 4.0. The first is that it won’t really have as big an impact as the previous periods of change, most especially the breakthroughs associated with the second industrial revolution. In the past, it has always taken time to feel the full effects of technological change and many of today’s advances are in their infancy. It is far too early to say that the car or air travel will prove to be less important than the sequencing of the human genome or synthetic biology.

The second myth is that the process will be trouble free provided everything is left to the market. It is a fantasy to believe that the wealth created by the fourth Industrial Revolution will cascade down from rich to poor, and that those displaced will just walk into another job that pays just as well.

Robot revolution: rise of 'thinking' machines could exacerbate inequality

Indeed, all the evidence so far is that the benefits of the coming change will be concentrated among a relatively small elite, thus exacerbating the current trend towards greater levels of inequality.

This was a point stressed by the Swiss bank UBS in a report launched in Davos. It notes that there will be a “polarisation of the labour force as low-skill jobs continue to be automated and this trend increasingly spreads to middle class jobs.”

A similar argument is made by Klaus Schwab, the man who runs Davos, in a book on the Fourth Industrial Revolution handed to each of the delegates at this year’s World Economic Forum.

Schwab compares Detroit in 1990 with Silicon Valley in 2014. In 1990 the three biggest companies in Detroit had a market capitalisation of $36bn (£25bn), revenues of $250bn and 1.2 million employees. In 2014, the three biggest companies in Silicon Valley had a considerably higher market capitalisation ($1.09tn) generated roughly the same revenues ($247bn) but with about 10 times fewer employees (137,000).

It is easier to make money today with fewer workers than it was a quarter of a century ago. Setting up and running a car company was an expensive business and required a lot of workers. A company that makes its money out of a smart app requires less capital, doesn’t have to pay for storage or transport in the way that car companies do and incurs virtually no extra costs as the number of users increases. In the jargon of economics, the marginal costs per unit of output tend towards zero and the returns to scale are high. This explains why tech entrepreneurs can get very rich very young.

Technological change has always been disruptive. There was a polarisation of income and wealth in the first wave of industrialisation at the beginning of the the 19th century, and this gave rise to political and institutional change over the 100 years between 1850 and 1950: the spread of democracy; the emergence of trade unions; progressive taxation and the development of social safety nets. These helped create bigger markets for the consumer goods that were spawned by the second Industrial Revolution: TVs, radios, vacuum cleaners and the like.

But over the past four decades a political model that both facilitated the spread of technology and provided some protection against its disruptive consequences has come under attack. Welfare states have become less generous, levels of long-term unemployment are much higher, taxation has become less progressive, politics has increasingly been dominated by those with the deepest pockets who can lobby the loudest.

Philip Jennings, general secretary of the global UNI union said: “We need some governance to ensure a democratic evolution and that requires public policy discussion. There is the opportunity to shape technology to improve people’s lives; through connectivity, education, health. We shouldn’t be fearful and fatalist about it.”

There is, though, a third and final myth: namely that all will be well provided the fruits of an economy dominated by artificial intelligence and smart robots can be redistributed, perhaps through a citizen’s income so that we can all have more leisure time when machines do all the work.

Schwab said: “The changes are so profound that, from the perspective of human history, there has never been a time of greater promise or potential peril. My concern, however, is that decision makers are too often caught in traditional, linear (and non-disruptive) thinking or too absorbed by immediate concerns to think strategically about the forces of disruption and innovation shaping our future.”But redistribution, even assuming it happens, is only part of the story. Making his first visit to Davos, the Archbishop of Canterbury said the changes likely to be brought about required not just an economic but also a spiritual response. “This is not just about money, it is about what it is to be human”, said Justin Welby.

He’s right, although there is a simpler way of putting it: faced with the challenge of disruptive new technology, the current political framework is no longer fit for purpose and its shortcomings are likely to lead to a backlash that could turn very nasty. That should concern not just Schwab and the Archbishop of Canterbury but also the investment bankers of Wall Street and the tech billionaires of Silicon Valley.

Intellectual Property at the Workplace: Theoretical and Comparative Perspectives by Dr Shlomit Yanisky-Ravid , Oxford University Press

My peer-reviewed book review of Intellectual Property at the Workplace: Theoretical and Comparative Perspectives by Dr Shlomit Yanisky-Ravid has now published in the Journal of Intellectual Property Law and Practice.
In the review I have tried to give a fair and comprehensive overview of the contents and of the author’s prescription for improving the system. I then have commented somewhat extensively on her thesis.

Intellectual Property at the Workplace: Theoretical and Comparative Perspectives Shlomit Yanisky-Ravid Nevo and Ono, 2013, 549 pp. Price: ILS 480 (approx. £ 82)
I am reproducing the report (with permission in full below. I am interested in any comments from readers and am sure Dr Shlomit Yanisky-Ravid will be as well.
Of patents and prejudice: IP and innovation at work
Intellectual Property at the Workplace: Theoretical and Comparative Perspectives Shlomit Yanisky-Ravid Nevo and Ono, 2013, 549 pp. Price: ILS 480 (approx. £ 82)
The book explains the current state of IP law in Israel with respect to employer–employee rights, and compares it primarily to other regimes that use the Anglo-American common law system, but also to the Continental civil law systems as practised in Germany and France.
The book opens with an overview of different rationales for IP law, including:
  1. the law and economics argument (Heller—the tragedy of the commons);
  2. the benefit of labour approach (Locke and Marx);
  3. the personhood theory (Radin and Marx);
  4. the wealth distribution model (Rawls).
The book analyses the fact that employee-invented patents are owned by the employer, and not the employee. The author reasons that patents for inventions should be owned by the employee as the one who labours and whose personhood is reflected in the invention, since this leads to a more equitable distribution of wealth. Thus all the models, apart from the law and economics approach, lead to the conclusion that the employee should own the rights to a patent on an invention based on his labour.
The author sees the employer–employee relationship as stacked against the employee. She eloquently makes a case for changing the law through legislation, but also attempts to show how the law, as currently formulated, could be creatively interpreted to assign rights to the employee. She would like cogent legislation to prevent employees signing away their rights to future IP they create. Such assignments should only be made after creation. Companies are expected to be compensated for their investment.
There is an interesting chapter on women inventors, or rather their scarcity, and the underlying causes. This is not totally tangential to the discussion, since it indicates a similar flaw in the current legal system and the resultant division of ownership. The author posits that, as with IP law, the inherent bias causes an inequitable division of resources that further entrenches inequalities. She notes that over the five-year period from 2000 to 2005, only 1.9 per cent of patentees receiving Israel patents were women, 30 per cent were men and the rest were companies. With regard to employee inventions, 13 per cent of named inventors were women and 87 per cent were men. This is understood to imply that women more often invent as part of teams, but are rarely at the narrow apex of the pyramid. The author cheerfully notes that her analysis does not directly prove the source of the discrimination. Nevertheless, a feminist approach to IP rights is presented, the book purporting to address the legal and other structures that exclude women from owning IP rights.
The author considers that property rights per se have been under-analysed from a gender perspective, and that the traditional patriarchal society has defined property in a way that favours men. The situation in IP rights, in general, and patents in particular, is seen as an extreme example of this built-in discrimination. Citing McKinnon (Catharine A. MacKinnon, Feminism Unmodified, Discourses on Life and Law, 1987 and Towards a Femist theory of the State, 1989), Gilligan (K. Gilligan, In a different voice, the theory, psychology and development of the woman, Hebrew Translation, 1995) and Fisk (Catherine L. Fisk, Removing the ‘Fuel of Interest’ from the ‘Fire of Genius’: Law and the Employee-Inventor, 1830–1930 65 University of Chicago Law Review 1127 (1998)), the author reaches the radical conclusion that the fact that women are not often named as inventors is proof that the legal system, the definition of patentable subject matter and the concept of ownership inherent in the concept of intellectual property as property all discriminate against women. The biases in patent law that result in this discrimination are not apparent, but they would not be expected to be discernible since they are so deeply entrenched. Bias is not, however, purely a masculine aspect of IP law. Other sectors of society are under-represented amongst inventors and owners of intellectual property and these similarly show that the system is biased. Affirmative action is proposed. Specifically, there should be a minimum quota of female examiners in the Israel Patent Office and in government entities. Forcing commercial companies to employ women in R&D is also suggested, but not stressed. The author toys with the idea of widening the definition of inventor to include research assistants, lab workers and junior staff.
The book notes that academics own the copyright in their papers and books, despite being employed by universities, and also notes that university inventors are often awarded 30–50 per cent of the royalties: universities seem to thrive under this relationship. This is seen as a model to be emulated by the medical and industrial sectors.
Returning to general service inventions, the author proposes that the names of employee-inventors of service inventions should be disclosed by law and that this should be done immediately. Their moral right to be named should be cogent. Other moral rights may be weaker. She suggests that where employees assign their rights to companies, it should be ex ante, and that clauses in service contracts that call for assigning any and all future inventions to the company should be illegal.
Apart from cases where employees are employed to invent or where a company has invested capital, employees should be under no obligation to assign their rights. Where they do, they are entitled to proper compensation, thereby increasing the size of the cake. The standard tests of who is an employer and who is to be considered an employee, as far as service inventions is concerned, should take into account the developments in labour law but it will be noted that, in labour law, these provide rights to the employee, whereas in IP law these take rights away.
The author promotes a model that attempts to find a golden mean among the different theoretical models justifying IP, noting that the current model is almost exclusively economy-based, apart from some moral rights in continental countries. In her view, the first owner should always be the inventor or creator. The right to be acknowledged as such is cogent and cannot be waived. Where a work product is assigned to the company, the name of the employee inventor must remain a matter of record. The consideration for so doing is only to be negotiated at the time that an invention is transferred to the employer, and may even be subsequently negotiated if conditions change. The consideration is to be a percentage royalty minus costs, similar to that adopted by academia (except Germany).
The reason why such a model is not adopted anywhere is that IP laws are always uni-dimensional, being based on a single model, the economic one. In Israel, there has been no deep conversation on the subject, and the current model is uni-dimensional, reflecting economic considerations only. The model suggests new legislation, and in the meantime, creative interpretation, to address this issue.
The author argues that the current Israel law can be interpreted as indicating that any medical invention by a medical doctor is owned by the employer. She argues that medical doctors, excluding lab workers, for example, are not employed to invent, but rather to heal. According to the model, their inventions are not generally connected to the hospital or health fund, and the doctor should be able to develop his or her idea independently and not be under obligation to assign it to his or her employer. Similarly, technicians and other employees of hi-tech firms, excluding R&D personnel, are not employed to invent, and any inventions should be theirs to license or assign to the company only if sufficiently compensated for doing so.
The author then lists the principle of her model for interpreting the current Israeli law, and preferably for amending it through legislation. Not to be accused of unjust modesty, she further proposes that it be used as the basis for a new international convention to regulate the field.
  1. Employee creations and inventions are the employees’. Any assignment to the employer will beex ante and case-specific, and not in an employment contract apart from exceptional cases where part of the job description is to invent or create. There will be no obligation to assign where: (a) the employer’s contribution is not significant, such as where the use of the employer’s resources is incidental; (b) the employee’s contribution to the product is significant; or (c) the creation is worthless. The guiding principle is that the employee’s inventions will belong to the employee.
  2. Assignments to the employer are to be made only after the product is developed and where the employer has a genuine interest due to having initiated the product, supervised it, invested in it, contributed to it and used the employer’s own resources. The assignment will be in accordance with cogent law and in writing. If non-economic considerations (theory of person, product of labour and wealth distribution) outweigh economic ones, the assignment will be void. Certain categories of workers, such as researchers, may be considered employed to invent: in such cases, products will be assigned to the employer. Such assignments will anyway require due consideration. Only a prioriobligations to assign in the employment or other contract that relate to employees in a narrow closed list, such as those employed to invent, should be upheld. These should be specific exceptions to the general rule that ownership belongs to the employee.
  3. Consideration for assigning service inventions to employer should be real and concrete, possibly a percentage such as that adopted by universities (40 per cent). If either party is unhappy with the percentage, they should have access to courts. There should be a minimal compensation to the employee that is cogent, which cannot be overridden by contact law.
  4. The inventor or creator has the right to be acknowledged as such. Authorship is not transferable. Other moral rights are considered less relevant. To the extent that they are developed from time to time, they may be transferred, but the employee can always rescind the transfer. As far as patents are concerned, the inventor has to sign forms to the effect that he is the inventor and the inventors and their details should be noted in the official record. Failure to do so may invalidate the patent.
  5. After the end of the employer–employee relationship, the employee can develop the invention. However, the previous employer is entitled to claim a reimbursement for the use of resources during the employment period.
  6. No transfers or other arrangements prior to the creation or invention will be upheld.
  7. The law is to be cogent and cannot be changed to the detriment of the employee.
The original intent was to transfer all rights to the employee but, after further deliberation and discussion, a more moderate model is proposed, as outlined above, for consideration by employers, employees, legal representatives and the judiciary in Israel and elsewhere.
I hope that the fact that the ‘Introduction and Overview’ is also in English implies that the book will eventually be republished in English, perhaps in a more universal rather than Israel-focused form. This will open the discussion to a wider audience.
The book is a thick hardback that looks impressive on the bookshelf. As the subject matter covered comes up fairly frequently in consultations with inventors and employers, and since the law is different in different jurisdictions, I suspect I will be consulting it frequently. In Israel, it seems that it is fast becoming a core reference in this key area.
The Paris Convention of 20 March 1883, last amended on 28 September 1979, seems to have been missed by the author. Article 4ter of this Convention states categorically: ‘The inventor shall have the right to be mentioned as such in the patent.’
I don’t know why the application form used by the Israel Patent Office does not require mentioning the name of the inventor of patent applications by companies that are not Patent Cooperation Treaty National Phase entries, but I don’t believe that forcing it to will make much difference to anyone, since virtually all employee inventions filed in Israel are also filed in the USA, where the names of the inventors are always mentioned. The information is easily accessible.
As the percentage of women inventors of company inventions is more than double the number of women inventors on applications filed by the inventors themselves, the argument that companies discriminate against women inventors is untenable. The author proposes affirmative action in appointing female examiners, whilst noting that, in 2005, 18 out of 32 Israel examiners, ie 56 per cent were women. I do not see any correlation between the gender ratio of examiners and the gender ratio of inventors. I suggest that women are more attracted to becoming civil servants, such as examiners and to working for Tech Transfer Companies of Universities rather than in private IP practice, since such work has more regular hours, better job security and better social conditions, albeit lower salaries. I think this is also an attraction of university tenure. Inventing is very different from providing IP services, whether as an examiner or in private practice.
The data on Israel patents which are presented in this book are nearly a decade out-of-date, but there is no attempt to see if the percentage of women inventors has changed in the interim. Nor has the author sought to determine whether the male–female divide in applications by Israelis and Israeli companies differs significantly from that in applications filed from abroad, but the country of applicant is on the form. The names of inventors in US applications are always given and readily available. This data were not examined. The theory that forcing companies to name inventors will somehow solve a problem could have been tested but wasn’t. The author does not to try to collect evidence, since it is not needed to show what she considers to be self-evident.
There is no attempt to compare the percentages of women inventors in different market sectors, or to correlate this with other countries. This is a shame, as the information is readily available on the Internet, and this is essential to drawing meaningful conclusions. There are companies such as Intel Israel, with women in senior management. It might be worth looking into whether such companies show different statistics than companies managed by men.
Salaries in hi-tech companies are generally higher than in other industries. Workers are regularly issued with stock options and sometimes offered 13th month salaries and other large bonuses. This can be seen as sharing the pie. In general, the raison d’être for companies is to create profit for their owners. Patent law serves an economic purpose. Companies provide inventors with bonuses and incentives to encourage creativity. They generally acknowledge the inventors unless there is a reason not to. The author has made no attempt to understand why some companies do not list the inventors’ names. If it made economic sense for companies to reward inventors more generously, then one suggests that, generally, companies would do so of their own volition. If this does not happen, there should be an attempt to analyse the underlying reasons.
Publicly traded companies allow anyone with capital to invest and share the profits and risks taken by the company. The model is an economic one. IP law is an economic development. The other justifications were not significant in the historic development of IP.
There is an implicit assumption that the model developed by Israeli universities would work in industry. This is not the case. Universities are non-profit organizations that are supported by public funding and academic researchers are employed to create knowledge. University employees are poorly paid compared to their industrial counterparts. However, they enjoy the benefit of tenure; they have the freedom to do what they like with their time. Promotion requires publishing papers, as per the old adage ‘publish or perish’. I consider that such papers should be owned by the educational establishment. The author has the moral right to have his name mentioned, but no more than that. I don’t think academic papers generally generate income for anyone other than publishers. Many non-scientific researchers do not have skills that are marketable outside the ivory tower. Applied scientists and engineers do. The academic model of royalty division is designed to keep highly employable scientists in academia and not industry. Industrial companies are profit-centred. They take risk in developing ideas, and will only do so if they can profit from doing so. If the inventor can take his or her invention elsewhere, and the company will simply be compensated for expenses incurred, it will not invest in research. Israel is the home of R&D facilities for many large international companies. If the local rules were different from those elsewhere in the world, these R&D facilities would fold.
Without cheaper energy, materials or labour, Israeli manufacturing can only compete with products from abroad if they have first-mover advantage and patent protection. The primary reason why I advise Israeli corporate clients to file patent applications in Israel is to prevent disgruntled employees from competing with them. One invests in patent applications long before one knows if a patent will be issued and if it will have commercial value. Companies consider taking this risk as long as the patent will be theirs. Applying Dr Shlomit-Yanisky Ravid’s model would probably wipe out Israeli industry.
For years, the USA considered international standardization that the rest of the world should adopt US practices. In the America Invents Act (AIA) the USA recently conformed its laws to those of the rest of the world, and now allows companies to apply for patents. The USA was big and powerful enough to do things differently for over 200 years, but one no longer has to file in the name of the inventor and then assign the application. Why should Israel adopt a system that even the USA has abandoned?
Israeli economist and Nobel Prize Laureate Professor Oman recently stated that he finds socialism attractive. His only problem with it is that it doesn’t work. Half the population of the world lived under Marxist regimes. The experiment was tried and failed in Russia, and has been evolved by the Chinese into a highly capitalistic system. Israelis wanting a fairer and more equitable division of resources are invited to join one of the few remaining non-privatized kibbutzim.
Dr Yanisky-Ravid’s assumption that a fairer distribution of profits between the employer and employee will increase the size of the pie is not based on any coherent logic. The current corporate patent system may not be perfect, but technology is advancing. Companies invest in new products and quality of life increases for all.

Sunday, May 29, 2016

The Struggle For The Freedom Charter And Its Class Content In South Africa: What Has Gone Wrong? Paperback – November 9, 2011 by Azwinndini Calvin Mutheiwana

The Struggle For The Freedom Charter And Its Class Content In South Africa: What Has Gone Wrong? Paperback – November 9, 2011
by Azwinndini Calvin Mutheiwana

Freedom Charter memorial in Kliptown
The Freedom Charter was the statement of core principles of the South African Congress Alliance, which consisted of the African National Congress (ANC) and its allies - the South African Indian Congress, theSouth African Congress of Democrats and the Coloured People's Congress. It is characterized by its opening demand; "The People Shall Govern!"[1]


  • 1History
  • 2Freedom Charter
    • 2.1The People Shall Govern!
    • 2.2All National Groups Shall Have Equal Rights!
    • 2.3The People Shall Share In The Country's Wealth!
    • 2.4The Land Shall Be Shared Among Those Who Work It!
    • 2.5All Shall Be Equal Before The Law!
    • 2.6All Shall Enjoy Equal Human Rights!
    • 2.7There Shall Be Work And Security!
    • 2.8The Doors Of Learning And Of Culture Shall Be Opened!
    • 2.9There Shall Be Houses, Security And Comfort!
    • 2.10There Shall Be Peace And Friendship!
  • 3References
  • 4External links


In 1955, the ANC sent out 50,000 volunteers into townships and the countryside to collect "freedom demands" from the people of South Africa. This system was designed to give all South Africans equal rights. Demands such as "Land to be given to all landless people", "Living wages and shorter hours of work", "Free and compulsory education, irrespective of colour, race or nationality" were synthesized into the final document by ANC leaders including Z.K. MathewsLionel "Rusty" Bernstein, Ethel Drus, Ruth First and Alan Lipman (whose wife, Beata Lipman, hand-wrote the original Charter). The Charter was officially adopted on 26 June 1955 at a Congress of the People in Kliptown. The meeting was attended by roughly 3,000 delegates but was broken up by police on the second day, although by then the charter had been read in full. The crowd had shouted its approval of each section with cries of "Afrika!" and "Mayibuye!" Nelson Mandela escaped the police by disguising himself as a milkman, as his movements and interactions were restricted by banning orders at the time.
The document is notable for its demand for and commitment to a non-racial South Africa, and this has remained the platform of the ANC. As a result, ANC members who held pro-African views left the ANC after it adopted the charter, forming the Pan Africanist Congress. The charter also calls fordemocracy and human rightsland reformlabour rights, and nationalization. After the congress was denounced as treason, the South African government banned the ANC and arrested 156 activists, including Mandela who was imprisoned in 1962. However, the charter continued to circulate in the revolutionary underground and inspired a new generation of young militants in the 1980s.
On 11 February 1990, Mandela was finally freed, and in May 1994 the ANC came to power. The new Constitution of South Africa included many of the demands of the Freedom Charter. It addressed directly nearly all demands for equality of race and language, but made no reference to nationalization of industry or redistribution of land which were outlined in the charter.

Freedom Charter

We, the People of South Africa, declare for all our country and the world to know: that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people; that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality; that our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities; that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief; And therefore, we, the people of South Africa, black and white together - equals, countrymen and brothers - adopt this Freedom Charter. And we pledge ourselves to strive together, sparing neither strength nor courage, until the democratic changes here set out have been won.

The People Shall Govern!

Every man and woman shall have the right to vote for and to stand as a candidate for all bodies which make laws;
All people shall be entitled to take part in the administration of the country;
The rights of the people shall be the same, regardless of race, colour or sex;
All bodies of minority rule, advisory boards, councils and authorities shall be replaced by democratic organs of self-government.

All National Groups Shall Have Equal Rights!

There shall be equal status in the bodies of state, in the courts and in the schools for all national groups and races;
All people shall have equal right to use their own languages, and to develop their own folk culture and customs;
All national groups shall be protected by law against insults to their race and national pride;
The preaching and practice of national, race or colour discrimination and contempt shall be a punishable crime;
All apartheid laws and practices shall be set aside.

The People Shall Share In The Country's Wealth!

The national wealth of our country, the heritage of all South Africans, shall be restored to the people;
The mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole;
All other industry and trade shall be controlled to assist the well-being of the people;
All people shall have equal rights to trade where they choose, to manufacture and to enter all trades, crafts and professions.

The Land Shall Be Shared Among Those Who Work It!

Restrictions of land ownership on a racial basis shall be ended, and all the land redivided amongst those who work it, to banish famine and land hunger;
The state shall help the peasants with implements, seed, tractors and dams to save the soil and assist the tillers;
Freedom of movement shall be guaranteed to all who work on the land;
All shall have the right to occupy land wherever they choose;
People shall not be robbed of their cattle, and forced labour and farm prisons shall be abolished.

All Shall Be Equal Before The Law!

No one shall be imprisoned, deported or restricted without a fair trial;
No one shall be condemned by the order of any Government official;
The courts shall be representative of all the people;
Imprisonment shall be only for serious crimes against the people, and shall aim at re-education, not vengeance;
The police force and army shall be open to all on an equal basis and shall be the helpers and protectors of the people;
All laws which discriminate on grounds of race, colour or belief shall be repealed.

All Shall Enjoy Equal Human Rights!

The law shall guarantee to all their right to speak, to organise, to meet together, to publish, to preach, to worship and to educate their children;
The privacy of the house from police raids shall be protected by law;
All shall be free to travel without restriction from countryside to town, from province to province, and from South Africa abroad;
Pass Laws, permits and all other laws restricting these freedoms shall be abolished.

There Shall Be Work And Security!

All who work shall be free to form trade unions, to elect their officers and to make wage agreements with their employers;
The state shall recognise the right and duty of all to work, and to draw full unemployment benefits;
Men and women of all races shall receive equal pay for equal work;
There shall be a forty-hour working week, a national minimum wage, paid annual leave, and sick leave for all workers, and maternity leave on full pay for all working mothers;
Miners, domestic workers, farm workers and civil servants shall have the same rights as all others who work;
Child labour, compound labour, the tot system and contract labour shall be abolished.

The Doors Of Learning And Of Culture Shall Be Opened!

The government shall discover, develop and encourage national talent for the enhancement of our cultural life;
All the cultural treasures of mankind shall be open to all, by free exchange of books, ideas and contact with other lands;
The aim of education shall be to teach the youth to love their people and their culture, to honour human brotherhood, liberty and peace;
Education shall be free, compulsory, universal and equal for all children;
Higher education and technical training shall be opened to all by means of state allowances and scholarships awarded on the basis of merit;
Adult illiteracy shall be ended by a mass state education plan;
Teachers shall have all the rights of other citizens;
The colour bar in cultural life, in sport and in education shall be abolished.

There Shall Be Houses, Security And Comfort!

All people shall have the right to live where they choose, to be decently housed, and to bring up their families in comfort and security;
Unused housing space to be made available to the people;
Rent and prices shall be lowered, food plentiful and no one shall go hungry;
A preventive health scheme shall be run by the state;
Free medical care and hospitalisation shall be provided for all, with special care for mothers and young children;
Slums shall be demolished, and new suburbs built where all have transport, roads, lighting, playing fields, creches and social centres;
The aged, the orphans, the disabled and the sick shall be cared for by the state;
Rest, leisure and recreation shall be the right of all;
Fenced locations and ghettoes shall be abolished, and laws which break up families shall be repealed.

There Shall Be Peace And Friendship!

South Africa shall be a fully independent state, which respects the rights and sovereignty of all nations;
South Africa shall strive to maintain world peace and the settlement of all international disputes by negotiation-not war;
Peace and friendship amongst all our people shall be secured by upholding the equal rights, opportunities and status of all;
The people of the protectorates-Basutoland, Bechuanaland and Swaziland-shall be free to decide for themselves their own future;
The right of all the peoples of Africa to independence and self-government shall be recognized and shall be the basis of close co-operation.
Let all who love their people and their country now say, as we say here:
Adopted at the Congress of the People, Kliptown, South Africa, on 26 June 1955.

Saturday, May 28, 2016

Fun with Patents : The irreverent guide for the investor, the entrepeneur and the inventory by Kfir Luzzatto

Fun With Patents
I am none of the above (except for having a Ph.D. and being occassionally irreverent). That means to say, that not only am I not a Kfir, a Luzzatto or a new book, but I am also not an investor, entrepeneur or inventor so clearly I am not the target audience.

The book has a prominent disclaimer that it is not advice and for specific cases, the reader should consult with a patent attorney. Like other patent attorneys in private practice, I regularly give advice, sometimes gratis and sometimes for significant consultancy fees, to investors, entrepreneurs and inventors so am familiar with the target audience, and think that reading a book like this would be of immense value to them, whilst agreeing wholeheartedly with Kfir’s disclaimer that the book is not a substitute for specific advice and the reader should consult with a qualified patent attorney on specific matters.

What I can do, is compare the non-advice that Kfir offers with that which I dispense to a similar audience. In this regard I have not found any statements in the book that I disagree with. The book is very readable and is packed with good advice based on the accumulated experience of a long career. Although the chapter order is not a conventional one, there is an index at the back that may help when referring to a topic again.
Kfir emphasizes the difference between being an inventor and owning a patent, and notes the importance of accurately determining the inventors, particularly in the US. He warns against filing insufficient disclosures in provisional applications and expecting to obtain a priority date for that not taught therein. He also warns against the inventor then talking about his invention wrongly assuming that they are protected. All this advice is correct and good.  Luckily for Kfir, myself and other practitioners, the intended audience probably won’t read it, or will decide that the advice does not apply to them, and so there is likely to be plenty of work in trying to correct the self-inflicted damage that clients cause themselves by seeking professional advice too late.

Kfir is descended from Renaissance men and I suspect likes to see and present himself as one. The book is resplendent with quotations from authors in different fields and gives the impression that Kfir is well read, or at least has access to good reference books. I particularly enjoyed the quote from the Ramchal, Kfir’s illustrious ancestor. Kfir describes himself as of the male persuasion, thereby justifying writing in the masculine instead of the tiresome he/she. However, he then referred to sitting around on our fannies, which to this British ear, seemed totally inappropriate. Nevertheless, though informal by intent, and with the occasional odd grammatical error, the book is generally well written and makes an enjoyable read.

The book is somewhat similar to a volume he brought out in Hebrew a decade ago. That book was called “The World of Patents” and was based on a weekly column he had in Globes, one of Israel’s business newspapers. As Kfir himself mentions, each chapter is self-standing. This is not a merely a rework and translation of the earlier book as a lot has changed over the past decade. nevertheless, most chapters are fairly brief.  This may create a problem in that the chapters are not comprehensive, and even after reading the entire book, the reader can only know about what is included and not about what is left out.   For example, there is a chapter that describes various types of patents. It starts with legal definitions, such as provisional applications, PCT international applications, patents for devices and patents for processes, patents of addition, and continuations. Then it mentions multi-disciplinary patents that may require more than one patent attorney to draft and that this can lead to tension due to different approaches. This is certainly true, but it is not a type of patent in the same sense as the others. The chapter then goes on to discuss petty patents and designs, explaining that designs are not patents. There is no clear statement to the effect that aesthetic designs are called design patents by the USPTO. Plant patents are also not mentioned.

One of the early chapters discusses obviousness and comes to the conclusion that different patent offices around the world come to remarkably similar standards with regards to obviousness. The term obviousness is used interchangeably with inventive step. Certainly, and Kfir himself discusses in later chapters, the allowed claims in different jurisdictions may be different. so here is the criticism. The chapter precedes the one that mentions that a patent has to be novel and useful as well as inventive. There is no distinction made between the US concept of obviousness and the European concept of inventive step. The two are very similar in practice, but are based on different underlining philosophies that go a long way to explain the difference in practice between the different authorities.
Sometimes, I disagrees to things intimated rather than spelled out. For example, when discussing IP managers, Kfir explains the type that is not good and then gives a list of pointers to be wary of. Kfir warns against the manager who finds ways to miraculously cut costs, and piously plagiarizes Milton Friedman to inform us that in patents there is no such thing as a free lunch. True, we are only warned to look into this carefully. Nevertheless, looking back over the past few years, there have been various IP developments that may save costs. The patent prosecution highways PPH and additional countries offering PCT international search reports, the changes in American patent law due to the American Invents Act have made first filing in local jurisdiction rather than filing provisional applications more popular, and more applicants are filing chapter 2 of the PCT, electing for preliminary examination. Globalization affects the patent industry and some tasks can be off-shored to countries with highly qualified lower waged staff. Some patents and designs that are being maintained should not be. I think that a good manager taking over a patent portfolio in a company that does things one way for historic reasons, may well make savings. I don’t think Kfir would disagree. He also correctly warns against advisers with a one-size-fits-all strategy.

Sometimes Kfir is certainly correct, like when he notes that just because one hs been awarded a patent, that does not mean that one is not infringing one or more competitor’s patents. That said, a US litigator once noted that it is worth using the argument that your client was awarded a patent for his product, since although not relevant to the question of infringement, both juries and judges make this mistake. Sometimes Kfir gives specific advice like the importance of reviewing the art before bringing a product to market to make sure that one is not infringing competitor’s products. He does not, however, mention the triple damages in the US for intentional infringement. So despite advising them, I suspect that in some scenarios he would not advise clients to conduct extensive freedom to operate searches as it may be easier to deal with infringing issues if and when they come up. However, no book is comprehensive and this one does not even claim to be.

Taken as a whole, this is a useful book for those intending of using patents to read. As Professor Jeremy Phillips points out in the introduction, the book is not a guide to drafting and filing a patent without professional assistance, which he compares to surgically removing one’s appendix oneself, instead of checking into a hospital.

Monday, May 23, 2016

The Wonderful Things You Will Be, by Emily Winfield Martin,Written and Illustrated by Emily Winfield Martin Age Range: 3-7 Hardback Book: 36 pages Publisher: Random House Children’s Books

Image result for The Wonderful Things You Will Be, by Emily Winfield Martin
Every child is unique, and parents can’t wait to see what they will one day be!

Emily Winfield Martin’s delightful book dreams of what children will someday grow to be. Every child is different and completely unique. We follow beautifully illustrated children as they discover themselves. A girl might grow to be in a garage band or become an actress, while a sweet little boy could be a gardener with his friends. The next boy is a tailor for tiny animal friends, and the next girl is a toy doctor. And beyond that, we see that children are really more than just professions. Young girls and boys are shown being kind, clever and bold, loving and brave.

Perhaps the most beautiful image is of a girl standing beside a dark wood, being “brave and bright/so no shadows can stay.” Because there is more to being something in life than just a profession. At the end of the book, all of the children we have met along the way are showcased in an outstanding foldout page. Children are dressed as whatever they wish to someday be: ballerinas and bears and musicians and robots. There is no wrong answer, and that’s what is so great about this book. Childhood is a time of wonder.

This is a gorgeous book with warm and playful illustrations featuring a diverse set of children. Little ones will be drawn to the pictures, quickly pointing out which one matches what they themselves want to be. The surprise of a double foldout page at the end is a very exciting treat for children too, and my daughter wanted to look at it over and again. The prose is sweet and rhyming, drawing children in and lulling them (hopefully) to sleep before bedtime. A charming book that I highly recommend for young children.