Polycentrism, Fragmentation, and the Role of Linkages in the Decade on Biodiversity

The United Nations has declared 2011-2020 the Decade on Biodiversity and the Convention on Biological Diversity has adopted a Strategic Plan for this period. The plan suggests an emphasis on national and regional action with support from the international level. The approach fits generally within the concept of polycentric governance that is receiving increased attention as an approach to climate change (for legal literature advocating this approach, see here and here).

Polycentric governance, a concept that grows out of social science studies of municipal governance in the mid-twentieth century, provides a useful framework for thinking about how to address complex global collective action problems at a time when the chances of agreement on an overarching top-down treaty are nearly nonexistent. It proposes that governance can be more effective by creating multiple nodes of authority, and urges that trust among participants is among the most important factors for success in addressing collective action problems.

The existing structure of international environmental law is highly fragmented and, thus, might lend itself to a more polycentric approach. However, the issues addressed by international environmental law are often closely linked to each other in an ecological sense. Thus, one of the challenges for developing a more effective approach to biodiversity preservation over the Decade of Biodiversity is to ensure that efforts give appropriate attention to these linkages among issues. One way to do this will be to target program development, under CBD or elsewhere, and funding to programs that make progress on multiple fronts. I develop this idea further in an article recently posted to SSRN. This issue linkage based approach to new initiatives can compliment the diffusion of authority characterizing polycentric governance by countering the negative impacts of institutional fragmentation while enhancing the overall effectiveness of internationally financed or initiated programs.

When Patents Attack

This American Life, a quirky and wonderful weekly radio program on National Public Radio, has featured stories on comedians, how to speak to kids, psychopaths, unconditional love, and mind games.  On July 22, 2011, TAL investigated a special breed of trolls:  patent trolls.  Here is how TAL describes the program:

Why would a company rent an office in a tiny town in East Texas, put a nameplate on the door, and leave it completely empty for a year? The answer involves a controversial billionaire physicist in Seattle, a 40 pound cookbook, and a war waging right now, all across the software and tech industries.  We take you inside this war, and tell the fascinating story of how an idea enshrined in the US constitution to promote progress and innovation, is now being used to do the opposite.

This patent who dunnit is fascinating and entertaining.  Moreover, it transforms a field of law often viewed - even by other, non-patent, attorneys - as dry, technical, and inaccessible, into something that, like Lord Byron, seems mad, bad, and dangerous to know.  Listen to the program here.

Hear it before you go infringing. You'll never go in the patent pool again!

More biolaw at LEXVIVO.

Myriad Genes To Patent

The United States Supreme Court must be despairing of how many patent appeals are coming its way.  After all, patent law is few people's cup of tea.  As one old, though obscure, joke puts it:

Question:  What's the difference between a patent attorney and a tax attorney?

Answer:  Patent attorneys are like tax attorneys, but without the scintillating personalities!

Watch out, Supremes, because the Court of Appeals for the Federal Circuit may have just teed you up to grant yet another writ of certiorari in a patent case.

Like Prometheus v. Mayo, a dispute focused on the patentability of methods of medical diagnosis and treatment, Association for Molecular Patholody v. Myriad raises fundamental questions of patentable subject matter and the interpretation of 35 U.S.C. 101.  On July 29, 2011, the Court of Appeals for the Federal Circuit largely overturned a decision on summary judgment by Judge Sweet of the Southern District of New York that rendered unpatentable claims to isolated DNA molecules per se and methods of diagnosis relying on comparisons of mutated DNA molecules with corresponding patient DNA samples.

It would be natural for the Supreme Court to combine the appeals of Prometheus v. Mayo and Association for Molecular Pathology v. Myriad because they both probe similar and related issues of patentable subject matter.  Such a combined appeal would have the potential to settle fundamental issues of patent eligibility surrounding many biotechnology inventions for a generation.

The eyes of biologists, the biotechnology industry, and patient advocacy groups are now firmly fixed upon the Supremes.

More biolaw at LEXVIVO.

Toxodebtosis

Toxoplasmosis is a fascinatingly tragic condition.  A mouse infected by the protoctistan, Toxoplasma gondii, behaves strangely.  Instead of scampering away at the first whiff of feline scent, as an uninfected murine certainly would, the mouse is dangerously attracted to eau de chat.  As its predator steadily approaches, the unfortunate mouse simply awaits, even welcomes, its catastrophic end.

Humans may also be infected by T. gondii.  Those with toxoplasmosis often exhibit an unreasonable penchant for obviously risky behavior.  Neurally transfixed by the parasite, an infected person may not only stare danger in the eyes, but willingly step within its opened jaws.

Though many metaphors, some more purple and florid than others, have been offered to describe the debt ceiling crisis currently threatening the United States, toxoplasmosis may be as good as any.  Like a parasitized mouse, the American economy and polity seem to be marching steadily and willingly towards a possible August 2, 2011, default.  Unlike the mouse, however, if the United States is consumed by default, it will likely take the rest of the world with it.  The weird serenity currently infecting the political classes in the District of Columbia, some of whom appear not simply to have accepted default, but positively to welcome it, suggests a debilitating political disease capable of leading to much economic pain.

While it remains unlikely that the United States will actually default next week, equity, bond, gold, and even food markets, as well as credit rating agencies, have already begun to price in significant economic damage.

Can a treatment be found in time?  If so, will it merely control the symptoms, or cure the disease?  Whatever the result, the current debt ceiling crisis amounts to the largest and most dangerous game of cat and mouse ever played.

More biolaw at LEXVIVO.