The Downside of Branding

Just some miscellaneous notes in passing —

• Here's an irritated note to the fashion industry — especially that portion of the fashion industry that "serves" men:

  Your customers are not your bloody billboards.

  Especially not those of us who have worn a uniform. I do not want, and will not wear, your logo or brand identification on my casual clothing (or, indeed, any clothing). It's especially ridiculous for not just casual clothing, but inexpensive casual clothing, to be "forced" to show where I shop. A simple, solid mesh polo shirt should not tell everyone that I shop at Target, or at Kohl's, or wherever. You should be paying me to be your bloody billboard... and it should be strictly my choice, not mandated by everything in the store bearing somebody's external logo. The only such logo I've ever tolerated is the shiny metal "U.S." on each side of my lapel, so you can keep your bloody polo ponies. I'm not about the clothes; I'm about me.

• A long, fascinating decision from the Federal Circuit yesterday on patent eligibility has some important implications for a wide variety of issues. In CLS Bank Int'l v. Alice Corp., No. 2011–1301 (PDF), the Court of Appeals sitting en banc held — across half a dozen opinions filling 135 pages — that merely converting an existing, noncomputing process to a computer is not, without more, eligible for a US patent. In a sense, this opinion is about the disjuncture between legal words and scientific thought, as implied by Chief Judge Rader's closing "additional reflections." This is a particular problem for computer science because the relevant words were written by lawyers in the 1950s.

  The implications of CLS Bank for the Internet are many and varied. For one thing, seven, or perhaps eight, of the judges imply that merely creating an algorithm and embedding it in a computer system can never be eligible for a patent. This obviously implicates Amazon's "one click" patents; it also implicates the very data on (and off) the 'net, particularly compressed graphics (.gif), video (.mpeg), and audio (.mp3) files — all of which are or have been subject to patents, licensing transactions, and litigation over the years. Perhaps this is merely a long-overdue recognition that computers are no more fundamentally different from "ordinary" processing (and worthy of a patent) than is a specification that a banking transaction must take place in an artificially-lit space on the thirtieth floor of a skyscraper. Perhaps this is merely a long-overdue recognition that an awful lot of things that lack an "inventive concept" (see slip op. at 27) are nonetheless being patented because the examination process has historically neglected subject-matter eligibility, particularly in the face of "process" patents. Perhaps there's even more going on.

  And perhaps the entire apple cart is going to be overturned yet again in the next few weeks when the Supreme Court decides, in Myriad, whether or not isolated human genes are patentable subject matter; CLS Bank implies not. The most important implication, though, is that patentability is often a sufficient motivation to do basic research, but not a necessary one... because not all scientists, engineers, and innovators are in it solely for the money.

• So the Infernal Revenue Service has been criticized for selectively giving greater scrutiny to certain 501(c)(4) applicants. Leaving aside the "sauce-goose-gander" schadenfreude for a moment, recalling treatment of the NAACP during my lifetime, because two wrongs don't make a right, there's something subtler at work here, too. If I'm a police officer, I'm going to be skeptical of new businesses with "Pawn" in their names — not because all pawn shops are illegitimate, but because some are (and most draw other problems to them). As Klein notes, the problem is that there wasn't enough skepticism directed to the entire universe of 501(c)(4)s as much it was the misuse of discretion in choosing which 501(c)(4)s got extra attention.