There have been some great posts on social networking and in particular, Facebook (see here, here, here, and here for just a few examples). There have even been posts on whether academics should use Facebook, like this one.

I don’t want to wander into that discussion…instead I want to talk about a different type of on-line community — the non-law related, subject area discussion forum — and the potential negative effects it has for law professors.

Consider a true story – the names and many details have been changed to protect the guilty (and no, it’s NOT about me)…

Jill is a visiting assistant professor at No-Name Law School, hoping to land a tenure track job somewhere. In addition to reading fascinating cases and writing [...]]]>

There have been some great posts on social networking and in particular, Facebook (see here, here, here, and here for just a few examples). There have even been posts on whether academics should use Facebook, like this one.

I don’t want to wander into that discussion…instead I want to talk about a different type of on-line community — the non-law related, subject area discussion forum — and the potential negative effects it has for law professors.

Consider a true story – the names and many details have been changed to protect the guilty (and no, it’s NOT about me)…

Jill is a visiting assistant professor at No-Name Law School, hoping to land a tenure track job somewhere. In addition to reading fascinating cases and writing fancy legal papers, she has other non-law related hobbies…like knitting. Because she is passionate about knitting, she has mentioned it to her class. She also belongs to a website devoted to knitting – the members get to know each other through posting in various threads, some devoted to knitting patterns, others to knitting skills, and finally, some threads devoted to non-knitting chit chat. Jill has been an active member of the board, and has even met some of her fellow knitters IRL. One day, on the board, Jill posts in a daily chitchat thread that she is having a miserable day because one of her students (unnamed) turned in an assignment of questionable quality.

The next day, Jill is called into her dean’s office and told to discontinue posting on the knitting board because one of her students complained. The Dean said that it was inappropriate for her to mention that any student of hers was doing poorly in an online forum and that she had acted unprofessionally.

Obviously, one of the coolest things about the Internet is the ability to find other people who enjoy your same interests and hobbies. Another cool thing about the Internet is the ability to maintain at least a modicum of anonymity. But what happens if you want to be friends (in the traditional sense – not in the Facebook sense) with these people you meet? Can you not share the circumstances of your day, something I consider a quintessential “friend” activity, with these people on-line? Bottom line – are law professors allowed to have on-line friends? (This puts aside the debate, of course, that you can have on-line friends at all, but stay with me.)

The way I see it, the answer is probably no. Let’s go back to Jill – Jill has gotten to know a bit about some her fellow knitters, either via on-line communication or by meeting in real life. The main point of her communication with them, however, remains the knitting forum. But Jill considers them her friends and wants to engage in friend-like behavior with them. What can Jill do?

1) Jill could stay off the online site or use it simply to retrieve knitting patterns. No friends.

2) Jill could participate in the discussion boards in a very limited sense – generally relating no personal information at all. No friends.

3) Jill could be careful not to mention her knitting hobby to her students, in the hopes that no student would ever find her there. She might be able to make friends, but she could still be discovered.

4) Jill could do what she did – she talked about her day in a way that did not implicate the student (or even the school) in any way…but one of her students, knowing that Jill belonged to the site, had been following her posts there.

Jill’s options seem pretty limited. If she sticks to options 1 or 2, she won’t make any on-line friends. You might think that option 4 seems a bit stalker-ish of the student, but we all know that students (as well as other folks) seek out information (including non-law related data) about their professors online.

Option 3 is not safe, but may be the best option for Jill. However, do we really need to keep our interests secret from our students so they don’t bump into us on-line? One thing that I think helps make professors appear (at least marginally) human is that we (occasionally) do something that isn’t law related. We have hobbies, interests, and other such – just like regular folks.

And even if we don’t disclose these interests out loud, for whatever reason, students have incredible research and deductive powers. For example – students may figure from the fact that I donate a wine & cheese event for the PAD auction each year that I am an oenophile. Some students may then be led to look for me on various wine sites. If I belong to one of these sites, I will have to remain completely anonymous (and friendless) or I will have to risk the same issues that Jill faced. Maybe it’s just easier to not have on-line friends?

The “reasonable man” or “reasonable person” is that mythical creature (not unlike a unicorn) that exists in many different areas of law purportedly to allow us to view the situation at issue from a reasoned, logical, objective perspective. We have in patent law a special breed of this legendary beast – the “person having ordinary skill in the art” or PHOSITA. In teaching students about the PHOSITA, I had always assumed that the concept would be fairly simple to grasp, since the reasonable person was, or at least should be, familiar to them. This assumption was shattered, indirectly, by one student’s exam answer.

I am not sure if the student was absent the day I introduced the PHOSITA and thus he took me [...]]]>

The “reasonable man” or “reasonable person” is that mythical creature (not unlike a unicorn) that exists in many different areas of law purportedly to allow us to view the situation at issue from a reasoned, logical, objective perspective. We have in patent law a special breed of this legendary beast – the “person having ordinary skill in the art” or PHOSITA. In teaching students about the PHOSITA, I had always assumed that the concept would be fairly simple to grasp, since the reasonable person was, or at least should be, familiar to them. This assumption was shattered, indirectly, by one student’s exam answer.

I am not sure if the student was absent the day I introduced the PHOSITA and thus he took me at my phonetic pronunciation, or if instead he was clever and was making a point I had earlier failed to grasp. (I personally believe the former, but I could be wrong.) Anyway, he answered all of his exam questions by looking at the issue from the perspective of the “Faux-Cita.” The fairy-tale beast raises its ugly head…

For me, any amusement during exam grading results in an unnatural amount of laughter. But once I recovered from this outburst, I started thinking about the unintended wisdom of the “faux-cita”. This reasonable person, or ordinary artisan, is a concept that I took for granted; but in reality, this legal fiction is a moving target for students. He changes based on the invention in question – the PHOSITA in rocket science is different from the PHOSITA in running shoes. But he also may change based on the test for which we are using him – How would a PHOSITA understand this claim term? Would a PHOSITA understand how to make & use the invention based on this disclosure? Would a PHOSITA have found this invention obvious?

The question for me is how to trap this fantastic being and make him real for my students. How do you explain a legal fiction without exposing that there is no Tooth Fairy? Once the word “fiction” comes out, students understand that this is something we have “made up” and therefore presume it is not meaningful. Even if they can get over that the most important person at the table is not real, they still do not know how he factors into the equation – especially since we don’t know who he is (and in patent law, he is likely to be unlike any of us). So how do you bring your legal fiction into reality?

(Image Source: The Lady and the Unicorn, Wikicommons)

Maybe out of fear that my students won’t find patent law as fantastic as I do, I make a point of telling them at the beginning of the semester that reading patent cases can be fun, exciting, and dramatic. I imagine they generally roll their eyes – although I try not to look. Their disbelief becomes palpable when I follow up by suggesting that they read the cases out loud. I know they won’t, but eventually we get to some point in the semester, when I jump up on a table (figuratively) and throw out my hand in a very Hamlet-esque, “Alas poor Yorick” pose (literally) and provide a dramatic reading of the more amusing portions of the day’s cases…

From the Phillips [...]]]>

Maybe out of fear that my students won’t find patent law as fantastic as I do, I make a point of telling them at the beginning of the semester that reading patent cases can be fun, exciting, and dramatic. I imagine they generally roll their eyes – although I try not to look. Their disbelief becomes palpable when I follow up by suggesting that they read the cases out loud. I know they won’t, but eventually we get to some point in the semester, when I jump up on a table (figuratively) and throw out my hand in a very Hamlet-esque, “Alas poor Yorick” pose (literally) and provide a dramatic reading of the more amusing portions of the day’s cases…

From the Phillips case:

What we have wrought, instead, is the substitution of a black box, as it so pejoratively has been said of the jury, with the black hole of this court. Out of this void we emit ‘legal’ pronouncements by way of ‘interpretive necromancy’; these rulings resemble reality, if at all, only by chance.

Eloquent words can mask much mischief. The court’s opinion today is akin to rearranging the deck chairs on the Titanic–the orchestra is playing as if nothing is amiss, but the ship is still heading for Davey Jones’ locker.

And some more…

From Eli Lilly: “Rather than attempting to distill an elixir from this intoxicating witches brew of enactment history, this court should interpret “material change” consistent with the overriding purpose of the Act.”

From Bilski: “Natural laws and phenomena can never qualify for patent protection because they cannot be invented at all. After all, God or Allah or Javeh or Vishnu or the Great Spirit provided these laws and phenomena as humanity’s common heritage.”

From Festo: “Like the proverbial balloon, a pinch on this backside of the law disrupts symmetry on the front side.”

From the perspective of a professor, I find these tidbits great. The students seem to be amused and start reading the cases carefully, looking for my next outburst. At least in my mind, it helps make patent law fun. But, then again, I’m biased.

But as a legal scholar and a language junkie, I’m not sure the value. Are the judges responsible simply frustrated creative writers? Are these excerpts supposed to function as rhetorical devices, and if so, are they effective? Or do they instead distract from the point that the author is trying to make? Is it too cute? Too inflammatory? Too obscure? Are we better off because the judges exhibit some creativity and personality, or would a plain explication of the law be more appropriate? And as a broader question – what is a “good” judicial opinion, not from a legal perspective but rather from linguistics and literature standards?

This weekend, I got to thinking about an old musical/cult film I had seen in college – “The 5,000 Fingers of Dr. T.” The 1953 movie is most noted for being the only feature film written by Dr. Seuss (Theodor Geisel), who also wrote the music lyrics. Quick summary of the plot – Bart is a little boy who is being forced to take piano lessons from Dr. Terwilliker. Bart hates the lessons and complains to [...]]]> First, let me say thank you to the folks at Concurring Opinions for giving me this opportunity to guest blog. I’m looking forward to sharing some ideas I have on law, language, patents, and science. But first, I want to talk about a really awful movie.

This weekend, I got to thinking about an old musical/cult film I had seen in college – “The 5,000 Fingers of Dr. T.” The 1953 movie is most noted for being the only feature film written by Dr. Seuss (Theodor Geisel), who also wrote the music lyrics. Quick summary of the plot – Bart is a little boy who is being forced to take piano lessons from Dr. Terwilliker. Bart hates the lessons and complains to everyone – including the friendly neighborhood plumber. Bart falls asleep and enters a fantasy world (very Wizard of Oz) where his piano teacher has become a madman. The piano teacher has imprisoned all non-piano-playing musicians and has built a piano so large it must be played by 500 little boys that the piano teacher has enslaved (including Bart). Bart tries to escape and seeks the help of the plumber, who happens to be installing sinks in the piano teacher’s institute. Working together, they build a device from the junk they have in their pockets (very MacGyver) that sucks all the noise from the giant piano. The little boys escape and the world is a better place.

So why was I thinking about this movie?

After Bart and the plumber build their fantastic device to suck noise from the giant piano, they encounter the piano teacher. The piano teacher looks fearfully at the device and asks, “Is it atomic?” Bart answers, “Yes, sir – VERY atomic!”

Sometimes it seems that courts view new inventions in precisely the same way – they are scary. And new inventions are scary for the same reasons that “atomic devices” are scary: we’ve never seen anything like them before; we don’t understand them; we’ve heard people say bad things about them; and we’ve been told that these new inventions can ruin our life. And so, as I was reading through the Bilski case this weekend, where the en banc Federal Circuit considered patent eligibility for business method patents, I couldn’t help but think of Bart and Dr. T.

While there may be many very good reasons to deny the patent in that particular case, I think the court is reacting in the way it did because business methods are scary. Although business method patents were deemed eligible for patenting ten years ago in the State Street case, the true flood of issued business method patents has just now become a reality; the court hasn’t, before now, had the chance to truly see them. And the court doesn’t understand them. The test resulting from Bilski requires a process to either be tied to a particular machine or to transform an article into a different state or thing. But when discussing this transformation in the arena of business methods, the court shows that it doesn’t understand the inputs and outputs of the process. It acknowledges that the raw materials of business method processes are often electronic signals and electronically manipulated data; however, based on the Nuijten case, which denied patent eligibility to electronic signals, the court clearly lacks any understanding of these things. Further, the Bilski opinion goes on to call additional inputs and outputs of these methods “abstract concepts.” Probably most importantly, the court has heard bad things about business method patents, including how these inventions can ruin industries (and the whole world). A look at the number of amici briefs arguing in support of the Patent Office’s rejection of these types of inventions, or even arguing further for a complete bar to the patent eligibility of business method and software patents, demonstrates how widely held is the belief that these inventions are bad.

To be fair, the Bilski opinion does not kill business method patents. Whether it does in practice or whether patent attorneys are clever enough to draft around this latest obstacles is yet to be seen. But I think we need to look more carefully at the underlying fear of the new and whether patents are being denied because inventions are scary.