Wednesday, December 25, 2013

Little options of Saudis as they push tougher foreign policy

Saudi Arabia, regardless of its deep discomfort about the West’s hesitant rapprochement with Iran, seems to have some viable selection for practicing a more independent and straightforward foreign policy.

Disappointed with the United States from constructing tactical relations with other world powers to thrusting a tougher line in opposition to Iranian allies in the Arab world and, in an instance that the world powers be unsuccessful to foil Tehran’s nuclear objectives, even looking for its own atomic bomb so senior Saudis have expected at a range of possibilities.

However substitute powers are tough even to think for a nation that has been holding back to U.S. ally for decades.  Russia is on the conflicting side against Riyadh concerning the Syrian war and China’s military clout is still modest as compared with the United States’.

Robert Jordan, U.S. ambassador to Riyadh from 2001-03, said there would be limits to any Saudi alliances with other powers.

Good judgment in forecasting international affairs

The Economist’s The World in 2014 issue focuses international attention on the geopolitical outcomes we can expect to see over the next 12-14 months hits the newsstand.  It features an article by University of Pennsylvania psychologist Phil Tetlock and journalist Dan Gardner on the Good Judgment Project.  That said article isa research study funded by the Intelligence Advanced Research Projects Activity (IARPA, the U.S. government’s analog to DARPA), as a result, makes such geopolitical predictions each day.

IARPA has posed approximately 100-150 questions every year to research teams partaking in its ACE forecasting tournament on topics like the Syrian civil war, the constancy of the Eurozone and Sino-Japanese relations since 2011.  Every research team was obliged to collect individual forecasts coming from many forecasters online and to produce daily collective forecasts that allocate sensible probabilities to potential outcomes.

The Good Judgment Project came out as the evident winner and the Good Judgment Project forecasters have established the capability to produce more right forecasts that have surpassed even a few of the most positive approximation at the start of the tournament.  The supplementary graphic shows the calculation from three GJP forecasting techniques on a up to date question about whether the first round of chemical weapons inspections in Syria would be completed before Dec. 1.

Thursday, December 19, 2013

Industry, labor, foes sound off during hearing on nuclear waste

Not often carry out nuclear industry executives and hardline activists who be against them agree on anything.

Mutually the two hates the thought of continuing to stockpile highly radioactive waste the reactor cores of nuclear power plants on the site of each power-generating station.

An hour-long hearing held December 2, 2013 drew almost 200 people from Ohio and Michigan to the Hilton Garden Inn in Perrysburg’s Levis Commons was a reminder that both sides are still far apart on what the government’s next step should be.

Although it would mean putting up with the waste decades longer than expected, industry and trade unions eventually want a single, national repository. Failure to develop a solution is reason enough to shut down the industry; this is the antinuclear activists claim to the government.

Nuclear power provides 20 percent of America’s electricity.

The Nuclear Regulatory Commission, the government agency that oversees the nuclear industry, learned a lot of information, the 11th stop on the agency’s 12-city tour in which it ought to do just that: Get a cross section of opinions.  As an answer to the government’s decision to unfinished plans for a national repository in Nevada’s Yucca Mountain, the NRC has been asking Americans about their thoughts regarding the agency’s proposed “waste confidence” rule and its affiliated environmental impact statement,.

As a consequence, the NRC is inquiring what the public’s thoughts concerning leaving the waste where it is, at least for the time being.

Thursday, November 28, 2013

British-Muslims contribute 31 billion pounds to economy

Britain has more than 10,000 millionaires from among 2.72 million Muslims contributing 31 billion pounds or Rs 3.0 trillion to its economy, says a report.

‘The Muslim Pound - How Muslims Add Value to Britain’s Prosperity’ was released by the Muslim Council of Britain ahead of the just-concluded 9th World Islamic Economic Forum Meet 2013 in London, one report says.

Five decades on, there are more than 10,000 millionaires and thousands of others are engaged in higher managerial, administrative and professional occupations.

Nearly 2.8 million Muslims in the UK contribute over 31 billion pounds to its economy and wield a spending power of 20.5 billion pounds, a report said this November.

A paper from the Muslim Council of Britain (MCB) said from coffee houses in Elizabethan London, to curry houses in modern day Britain, thousands of Muslim-owned businesses have made a significant contribution to the UK economy and by extension, the cultural life of Britain.

The report said there are some 2.78 million Muslims in Britain, contributing over 31 billion pounds to the economy.  There is an anticipated 10,000 Muslim millionaires in the UK with liquid assets of more than 3.6 billion pounds, with more than a dozen British Muslims listed in the 2013 Sunday Times Rich List of the most affluent in the UK.

In London alone, there are over 13,400 Muslim-owned businesses in London creating more than 70,000 jobs, the paper said.

The report was published to highlight Muslims' growing contribution to the UK and to mark the 9th World Islamic Economic Forum (WIEF) went to London this month, the online portal Huffington Post UK reported.

The MCB report comes as Prime Minister David Cameron is set to unveil a new Islamic index on the London Stock Exchange.  The move, as expected to be worth 1.3 trillion pounds next year, marks the capital's significance as a global centre for Islamic finance.

The city will be the first non-Muslim city to host the World Islamic Economic Forum.

"I welcome the effort of the British Muslim community in bringing the World Islamic Economic Forum to London. My have worked with the Muslim Council of Britain to bring this Forum to London, who has been a key delegation at World Islamic Economic Forum since its inception," said London's Mayor Boris Johnson.

The MCB is a national representative Muslim umbrella body with over 300 affiliated national, regional and local organizations, mosques, charities and schools.

Sunday, November 3, 2013

International relations: Russia rises as world leader

Many are the references in the speeches of US Presidents about the need to "lead the world", an arrogant and intrusive approach from those elected by a percentage of their own people and nobody else. Yet today, what has America's "leadership" led to, where has it led the USA and its allies, what is its standing in the hearts and minds of the international community?

The Helsinki Final Act, or Helsinki Declaration, of 1975, was perhaps the visible face of the stance of the Union of Soviet Socialist Republics, looking for friendly relations with the West while it brought generations and millions of oppressed persons education, healthcare and decent public services, freeing them from the yoke of imperialist tyranny.

By 1989, the USSR was spending on average 250 billion dollars - a quarter of a trillion USD - on development projects overseas, implementing policies which guaranteed the right to basic services in countries where imperialism and colonialist policies had syphoned off the resources, placing corrupt political figures in power so as to guarantee the one-way direction of resource flow - outwards.

Scroll back seventy years, when the Russian Revolution was for the first time bringing backward societies into the front line of industrial development, guaranteeing housing, for free, free public utilities, free or heavily subsidized communications, subsidized public transportation, free primary and secondary education, free higher education, free healthcare, free dental treatment, zero unemployment, safety on the streets, security of the State, social mobility, indexed pensions, guaranteed basic foodstuffs, leisure time activities, free sports facilities, free cultural facilities... and back then we could already see the true mettle of the west.

The psyche of the United States of America, its poodle-in-chief, the UK and in turn the ex-colonies of London, principally Australia and the sickening clique of sycophants which crawl around, licking Washington's legs and feet - namely France and to varying degrees the NATO pack - is in essence Anglo-Saxonic, is based upon wanderlust, imposition of cultural values in a top-down, holier-than-thou approach which saw the same nations drawing lines on maps.

Tuesday, October 1, 2013

The World’s Top Ten Most Dynamic Economies

Of the top 10 world economies with the highest prospects for commerce growth in 2013, the U.S. is noticeable for its absence.
Based on Grant Thornton’s 2013 Global Dynamism Index (GDI) involving 50 countries, the U.S. slid down from No. 10 last year, to No. 11 in 2013. And to make it worse, its stats for indicators such as financing and labor markets, sank from a collective 64.1 in 2012 to 60.5 in 2013.
Yet, it is not that bad. U.S. left behind the Japanese (15) and the South Koreans (13). It also crushed the U.K., which ranked 34 overall, scoring only 51.5 out of a perfect 100. So, things in the U.S. are far from being that bad.
“I believe the U.S. is playing out almost exactly the way we expected,” said Marc Tommasi, a managing director at investment company Manning & Napier. “It is neither bright nor that terribly bad.”
Grant Thornton’s index provides insights into which of the 50 nations evaluated presents the best ecosystem for investment growth. The U.S. has dropped from the charts. But it has some company. Only a few nations have scaled the charts, and among the most stellar performers is China. It joined the top 10 this year after having placed No. 17 in 2012.
Rankings are according to performance in five main areas – business working environment, economics & growth, science & technology, labor & human capital and the lending conditions.
The obvious news from this year’s index: Asia is a powerhouse for investment growth. And even with the Nordic nations sliding, government policies there make it one of the most ideal areas in the globe to nurture a business. Even more so than the center of capitalism, Uncle Sam.
For China, the business working environment and financing were both graded badly, close to the base of the stack. However, nothing defeats the Chinese labor market. Not merely is it cheap, but on the East Coast especially, they are exceedingly skilled as well. In addition, in terms of holistic outlook there, China is No. 2 for general business growth.
This makes China the second highest jumper, right behind the upcoming tiger-economy Philippines (which climbed 25 places from No. 46 last year). The progress in China is principally powered by its science & technology ranking, where it jumped 8 places to rank 14 on the back of stable information-technology firms and spending on research and development.
“As China advances to a more sustainable economic development path, the GDI 2013 results provide a major sign that our business growth environment remains on the road to improvement,” Grant Thornton managing partner Xu Hua was cited as saying in the report published last week.

The top 10 most dynamic economies in 2012 were, namely from 1 to 10: Singapore, Finland, Sweden, Israel, Austria, Australia, Switzerland, Korea, Germany and the United States.
Here are the top 10 most dynamic economies of 2013.

No. 10: Norway

Norway got 60.9 points on the index this year, down from 62.6 last year. Multinationals have worked in Norway for so many years, most of them engaged in the oil and gas industry. The most popular Norwegian companies are Statoil and Norsk Hydro.


No. 9: Sweden

Sweden stands No. 9 and gained 61.6 out of a perfect 100. Last year, Sweden's business vitality scored a 69.6 on the Grant Thornton Global Dynamism Index, so this year's economic deceleration in southern Europe made a dent. Swedish technology exists in many American homes and enterprises. Ericsson is location in Stockholm. Husqvarna lawn-mowers mow many American lawns. 


No. 8: Israel

Israel scores lower this year with 61.8 on the index compared with 69.3 last year, losing its former No. 4 spot. Israel's growth economy is founded on biotechnology and software. Teva Pharmaceuticals is Israeli-owned and is the largest manufacturer of generic medicines in the world.

No. 7: Singapore

Singapore slid down this year but remains up there. On the index in 2013, it scored 61.9 out of a perfect 100, down from the No. 1 spot last year at 72.1. The country is generally noted as the biggest trade center in the world.

Tied with Canada: Finland

Finland ties with Canada with 62.3 this year, dropping from the No. 2 spot last year with a score of 70.5. Naturally, everyone remembers Finland as the people who gave us Angry Birds. Rovio Mobile is housed in Espoo. Microsoft adores Finnish tech so much it acquired Nokia this year.


No. 5: Canada

Canada and Finland both scored 62.3 out of a perfect 100 and is improving. Last year on the index, it gained 61.7. Canada is popular as the country that gave us the smartphone. BlackBerry is located in Waterloo. And while BlackBerry has seen brighter days, Canada likewise hosts TD Bank and airplane manufacturer Bombardier. 


No. 4: New Zealand

That Fly Emirates symbol printed on the jib sail of an America's Cup catamaran belongs to Team New Zealand. The country ranked No. 4 with an index score of 62.6, sliding from 63.9 last year on the Grant Thornton Global Dynamism Index. In spite of this lower index number, New Zealand climbed from No. 13 in 2012. 


No. 3: China

China is doing something right, climbing from Rank 20 last year to No. 3. It scored a 62.7 out of 100, up from last year's score of 61.4. China is the world's No. 2 economy, and here in the U.S., it is referred to as the economy every politician “loves to hate”. Accused of causing massive losses of manufacturing jobs in America and a crushing trade deficit, China is no longer merely a Happy Meal toy-manufacturing economy. It is now noted for being a melting-pot for luxury retailers. However, it is also popular for Internet pet-companies such as Tencent, Baidu and Sina. 

No. 2: Chile

Chile has always been favoured by the global executive. The only thing that has changed is that it continues to get better. Last year, it garnered No. 11 with an index score of 63.8. This year, it is No. 2 with an index score of 64.5. Noted for its copper mining, red wine and salmon, it is also home to LAN Airlines, the biggest airline owned by Latin Americans. Chile is good; but not as good as these guys...


The Most Dynamic Business Climate On Earth... Downunder. Australia climbed from No. 7 last year with an index score of 65.6 to No.1 with an index score of 66.5. Australia has so much to offer prospective investors: twenty two years of continuous economic growth; stable institutions; a trained, industrious labor force and a vigorous culture of investment in research and development. The country’s most noted firms include mining giant BHP Billiton, surf apparel and culture brand Billabong and Rip Curl, and brewery Fosters Group. Addicted to playing fruit ninja on X Box Kinect? It is a product of Halfbrick Studios of Australia.

Wednesday, August 14, 2013

GCHQ: inside the top secret world of Britain's biggest spy agency

A couple years back, GCHQ held its yearly sports fest on Wednesday, 15 June at London’s Civil Service Sports Club. A gender-friendly, six-a-side football match was the main event of the activity, with games kicking off at exactly 11 A.M..

The day was a cheerful experience for those normally ensconced in the agency's unique doughnut-shaped command centre in Cheltenham. Participants were given a six-page list of rules and regulations to ascertain that people played fair.
"Each team MUST field at least ONE lady player at all times," the note said. "Proper footwear shall be worn. Crocs, sandals or flip-flops are not allowed. The wearing of shin-pads is REQUIRED."
Among all the extremely confidential papers about GCHQ exposed by the whistleblower, Edward Snowden, this has to be one of the least delicate. But it provides a peek into the world of the 6,100 people packed into the open-plan and underground GCHQ offices; that there is a sports activity at all shows something about the agency which many people outside their world could not appreciate.

Last year, GCHQ also made trips to the Paris Disneyland, and its sailing club participated in an offshore regatta at Cowes. The agency also has a chess club, regular pub quiz nights, cake bazaars and an in-house puzzle newsletter named Kryptos. A member of Stonewall beginning last year, GCHQ has its own Pride group for employees who are gay, lesbian, bisexual or transgender.

There is also a paranormal group that describes itself as "GCHQ's ghost-hunting group". It is open to staff and their partners either "sceptics or believers" who want to explore "supposedly haunted properties".

Employees reckon their age on the internal directory, "GCWiki", by their "internet age", a gage of how long they have been experts on the web.

They meet friends during yearly family open-days, or through messages on the agency's own version of MySpace, aptly titles SpySpace.
Colleagues are bound to meet others cut from the same fabric. The agency's 2010/11 recruitment guide states that GCHQ hires top-calibre technologists and mathematicians familiar with the intricate algorithms that fuel the Internet. But it has space for a few accountants and librarians. No vacancies available for classicists, however.

Sunday, August 11, 2013

26 Million People Struggling Financially

Approximately 26 million Britons are presently having money problems because the economic

slump has induced a “live for the moment” mentality, based on a major report on the wellbeing of the country’s finances.

Over fifty percent of UK adults stated that they were struggling with their finances, the

government-sponsored body, Money Advice Service (MAS), bared. This is a sudden increase

from 35 percent of people who were undergoing a hard time paying their bills compared to the

previous time a similar study was conducted in 2006.

Hourly salary has plummeted by 6 percent in real value since the previous research was carried

out, making it more difficult for people to eke out a living.

A “live for the moment” culture and lack of financial smarts were also discovered to be possible


Twenty percent of those polled stated that they would prefer to have £200 at present than

£400 after four months, with twenty-five percent of people replying they choose to live for the

present rather than plan for the future.

The report also showed that a disturbing number of Britons are deficient in financial awareness.

About 12 percent of those asked believed the Bank of England’s base rate, which has been at a

remarkable 0.5 percent low for over four years, was over 10 percent.

Over one third of the people asked did not comprehend the great effect that inflation has on

their savings and 16 percent could not tell the right balance on a bank statement.

Nevertheless, more encouraging result from the survey revealed that the number of people

checking their bank account statements had grown since 2006 and almost 84 percent of people

said they constantly monitored their finances.

40 percent of those questioned said they stay clear of doubtful dealings and 85 percent said

they were laying aside some money in savings.

Caroline Rookes, chief executive of the MAS, said: “In principle, financial management is easy –

spend less than you make and think about your future – but the challenge comes from how we

apply it in actual life.”

The MAS, an autonomous body established by the Government, has a legal duty of enhancing

public awareness and knowledge about financial issues. It plans to publish a method to assist

citizens improve their financial condition next year.

Over 5,000 people participated in the survey, with more than 70 families monitored over the

period of one year for the Financial Capability of The UK Report, which uncovered “a common

sentiment that people worry about their capability to endure until the next payday”.

Sunday, June 30, 2013

Constitutionality of Renewable Energy Mandates in Question

In a potentially crushing strike against advocates for renewable energy mandates, a federal court ruling recently raised the issue of constitutionality of major provisions of many states’ renewable energy mandates.

On June 7, 2013, U.S. Circuit Court of Appeals upheld the Federal Energy Regulatory Commission’s (FERC) position against the state of Michigan (and other petitioners) in a disagreement over FERC’s proposal to distribute costs for new power lines to supply millions of megawatts of wind power in the Great Lakes area.  Michigan believes that this plan would, in essence, require them to pay for expensive new power lines intended for transmitting renewable energy out of the state. Based on the law establishing Michigan’s 2008 Renewable Energy Standard, only renewable energy generated inside its state borders is qualified to fulfill Michigan’s obligation to utilize 10% of eligible renewable energy sources by 2015.

Speaking for the Court, Judge Richard Posner ruled:

“Michigan’s first argument—that its law prohibits it from crediting wind power from out of state in favor of the state’s obligated use of renewable energy by its utilities—trips over an unbreakable constitutional precedence. Michigan cannot, without violating Article I of the commerce clause of the Constitution, discriminate against out-of-state renewable energy (emphasis added).”

Thirty states, including the District of Columbia, have mandates on renewable energy that require electric companies to purchase a certain quota or percentage of renewable energy by a projected year. Just like Michigan which has a clear ban on wind produced in other states from being allowed into their mandate, other states also “discriminate” against out-of-state renewable power. When counting mandate compliance, several states count in-state power at a higher rate than out-of-state power, a practice popularly labelled as “multipliers”:

Delaware has a 300% credit multiplier for customer-sited, in-state photovoltaic (PV), a 350% multiplier for a specific offshore wind project, and a 150% multiplier for all other in-state wind projects;
Colorado applies a 1.25 multiplier for its in-state generation;
Michigan provides an extra 0.1 credit for projects that use state-available components and its local workforce;
Missouri grants a 1.25 multiplier for all in-state generation.
Kansas uses a 1.1 multiplier for all in-state resources;
Moreover, some state renewable policies have a list of renewable energy grades, where certain power sources can only be utilized to fulfill a part of the mandate.  Others have grade levels dedicated particularly to in-state power generation that may now be doubtful in view of the recent decision by the federal court:

New Mexico’s Tier V applies to customer-sited resources;
Massachusetts’ Tier IV exclusively applies to in-state PV projects;
New York’s Tier II covers customer-sited resources.
The new ruling is significant since one of the main points raised by mandate proponents is the creation of jobs in the concerned state.  Certainly, these claims merely consider the overall “green” jobs provided, while totally neglecting the loss of net jobs resulting from increased electricity rates arising from these mandates. The federal court ruling might just end up nullifying the argument for in-state green-job employment since renewable power can be imported out-of-state to comply with the mandate.

Lawmakers in these states with power mandates may now question the value of raising electricity rates on their state power consumers for the purpose of subsidizing “green” job creation in another state nearby. In the end, what this ruling has done is to unravel the problems and complexities with a market for renewables that has been created through government policies.

Monday, June 10, 2013

The State of the Nation’s Air, and Your Lungs

In most places, the quality of air in America is better than ever.

As China remains blanketed by an ever-thickening haze, we in the United States can be grateful of one thing: The air is getting cleaner in most parts. The American Lung Association reported in its State of the Air 2013 that 18 cities have lower dust pollution compared to previous years, while 16 had their lowest figures ever.

Nevertheless, the improvement is not that widespread. About 25 million Americans live in conditions of harmful levels of ozone and particle pollution. Around 131 million people (42%) live with either type of unhealthful environment. California’s busy and highly-populated metros rank badly in the rankings, consistently topping the five most-polluted metros by ozone, year-round and short-term particulate pollution. Bakersfield, the highest for particulates among 277 metros, fares worst of all although it has already improved.

In general, 119 counties have levels of ozone that affect the health of citizens with "aggravated asthma, difficulty breathing, cardiovascular harm and lower birth weight". Particulate levels in 58 counties are such that they "increase risks of heart attacks, strokes and emergency room visits for asthma and cardiovascular disease".

Cities, such as Salt Lake City and Fairbanks, Alaska, experience more frequent short-term spikes in pollution. Out of 25 cities that had the worst short-term problems, 14 recorded more poor days than in previous reports of the "State of the Air". According to the report, some cities experienced higher pollution arising from increased burning of wood and other fuels for heating during winter, especially with the use of highly-polluting indoor wood-stoves or outdoor wood-boilers.

Of the cleanest cities, New Mexico proudly ranks third and fifth for least particulates (Santa Fe and Farmington), Wyoming has another (Cheyenne), then Prescott, Arizona, and St. George, Utah. To help you determine your city’s ranking, the Lung Association website provides a friendly search function using the zip code.

"State of the Air" utilizes data gathered by the E.P.A. from 2009 to 2011. Its main objective is to promote continued enforcement of the Clean Air Act. Since 1970 when the Act was first amended, population and energy consumption has increased by about 50% while gross domestic product rose 212%, the report shows. Since then, emissions of the six most common pollutants have decreased by 68%. China, on the other hand, can only dream of achieving such a growth-to-pollution ratio.

Thursday, May 2, 2013

Sea disputes, N. Korea in spotlight at ASEAN summit

Concerned about possible escalation of long-seething tensions over certain isles in South China Sea, Southeast Asian officials meeting in Brunei this week are planning to press China to agree to begin talks to draft a new pact aimed at preventing a major military confrontation in one of the busiest waterways in the globe.

Apprehension over North Korea’s recent saber-rattling is also expected to compete for attention over vital economic issues in the annual ASEAN (Association of Southeast Asian Nations) Summit being held Wednesday and Thursday in Bandar Seri Begawan, capital of Brunei.

The 10-nation ASEAN bloc is under time-pressure to try to develop the significantly culture-differentiated region of 600 million people after the European Union model-community before 2016.

First conceptualized in a 2007 master plan, the work to transform the dynamic region into a singular market-and-production hub has reached about 77 percent completion, according to a draft declaration to be released after the summit. No details as to what remains undone have been given.

A copy of the joint statement obtained by The Associated Press on Monday states the ASEAN leaders’ continuing commitment to ensure the peaceful resolution of South China Sea conflicts within the bounds of international law  and “without resorting to the threat or use of force.”

ASEAN stands to call for “the early adoption of a code of conduct in the South China Sea,” referring to a legally-binding agreement it would like to forge with China to replace a 2002 nonaggression accord that has failed to stop territorial conflicts.

China, Taiwan and ASEAN members Malaysia, Brunei, Vietnam and the Philippines have overlapping territorial claims across the South China Sea, which Beijing claims in its entirety. Vietnam and the Philippines, for instance, have been constantly playing cat-and-mouse with China over the region in recent years, with diplomatic squabbles exploding over gas and oil exploration and fishing rights.

A tense standoff last year between Chinese and Filipino naval ships over the resource-rich Scarborough Shoal has remained unsettled.

The Philippine vessels withdrew; but China has adamantly declined from pulling out its three surveillance ships and removing a rope stopping Filipino fishermen from venturing into a Scarborough lagoon.

The Philippines, early this year, protested against China’s extensive territorial claims before an arbitration tribunal of the United Nations Convention on the Law of the Sea in a bold legal action that China has all but ignored. The tribunal is still hoping to appoint three more of five arbiters by Thursday, then begin investigating the complaint whether it has jurisdiction.

A pre-summit conference of ASEAN foreign ministers in Brunei two weeks ago generally revolved around concerns over the territorial disputes and concluded with a demand for an early completion of a nonaggression pact with China, Philippine Foreign Secretary Albert del Rosario stated.

Chinese officials, however, have not specifically signified when they would decide to meet for discussions on the proposed accord.

ASEAN unity has been endangered by the territorial issue. Cambodia, an all of China, rejected moves to have the issue inserted in a post-ministerial statement during last year’s summit. Vietnam and the Philippines protested the snub and the ASEAN summit concluded without issuing an after-conference communique, a first in the bloc’s 45-year existence.

China has vigorously refused to bring the issues to the international forum, opting to deal with each of its rivals on a one-on-one basis. It has also warned U.S. not to intervene in the regional disputes.

Founded in 1967 as a front against communism in the Cold War era, ASEAN has often been caught in the crossfire of major conflicts. As it is, the bloc walks an unsteady tightrope between a growing China and a powerful America that is reasserting its status in Asia-Pacific.

The two giants wield tremendous influence over the developing, small ASEAN nations, whose region has become a battleground for political and security control and export markets as it contains one of the world’s busiest sea lanes.

National Defense Forces from all of members of ASEAN, together with eight other countries that include the United States and China, will conduct, for the first time, three-day disaster preparedness drills in Brunei come June to promote confidence among the multinational troops, the draft summit statement also mentioned.

Sultan Hassanal Bolkiah, Brunei’s media-shy leader, has initiated the tedious ground-work to prevent any major fisaco in the ASEAN summits his tiny but oil-rich kingdom is hosting this year.

Bolkiah has separately met with US President Barack Obama and Chinese leader Xi Jinping prior to this week’s summit. Last week, he flew to Manila, to discuss part of the summit agenda with Philippine President Benigno Aquino III.

When his gleaming Royal Brunei Air plane taxied to a red-carpet welcome in Manila, Philippine officials were surprised to see Bolkiah, who also commands Brunei’s defense forces, at the pilot’s seat.

Tuesday, April 30, 2013

Jakarta Can Be a ‘New Manhattan’: Tomy Winata

Jakarta is poised to become a “new Manhattan” according to an ambitious city plan described by Tomy Winata, founder of Artha Graha Group founder, during to an interview with cable TV broadcaster CNBC aired last weekend.

Danayasa Arthatama, a subsidiary of Winata’s company, closed a deal with US firm MGM Hospitality to construct a $2 billion, 638-meter tower — Indonesia’s tallest building in the future — within Sudirman Central Business District, South Jakarta.

Dubbed Signature Tower, the building will claim the world’s fifth-tallest building tag with its 111 stories, dwarfing Kuala Lumpur’s Petronas Towers as the tallest building in Southeast Asia. Based on the ompanies’ program, it will house 70 floors of office space, a six-star luxury hotel and will include conference facilities.

Tomy, 54, told CNBC that the project will anounce to the world that “Jakarta … is not a big village. Jakarta is becoming a new Manhattan.”

Meantime, on his proposed $15 billion Sunda Strait bridge project, the native of West Kalimantan declared, “I haven’t got the rights to do the project.”

Former Finance Minister Agus Martowardojo hesitated to grant the central government support to Artha Graha’s plan as well as the Banten Lampung provincial governments to build a 29-kilometer bridege connecting Sumatra and Java.

Nevertheless, Tomy Winata feels confident the project will push through in the end. “If one day the government gives the opportunity to us, the project financing will come from the private sector, without any guarantee from the government,” he told CNBC.

The government’s public-private partnership program requires state guarantees, considering the major investment risks involved. Agus, who will soon assume as Bank of Indonesia governor next month, has declared that he wanted to avoid a recurrence of the fiasco over the Jakarta monorail project.

Monday, April 29, 2013

Here’s The Argument That The Entire World Economy Is Starting To Go Bad

Lately, the stock market has weakened with commodities been getting crushed.

Is the global economy slowing down hard? Maybe.

Recent U.S. economic data especially in housing has been disappointing.

And growth in China, a global growth engine, has slowed as it continues to crack down on corruption, property prices, and shadow banking. Its plan to shift its economy from exports to domestic-demand-powered growth has also added to the lower growth rate.

In Germany, Europe’s so-called strong-arm, economic hopes fall.

Let us briefly consider some salient data arising around the globe:

The U.S.

Housing, considered a huge source part of the economic recovery, is also showing signs of faltering. Building permits are decreasing and so is homebuilder confidence while foreclosure procedures are up and capacity limitations among mortgage lenders are also affecting the initial rebound.

America’s manufacturing rebirth also seems off-target. The Empire Fed manufacturing survey went down to 3.05 in April, below expectations. Today, we saw the April Philly Fed fall to 1.3, with the unemployment sub-index going down to -6.8.

In March, retail sales suddenly fell 0.4%. Nomura explained that the decreasing trends in sales in the last two months meant that “consumer adjustment to lower disposable income at the start of the year has begun.” Consumer confidence also missed the mark, falling to 72.3 in April, from 78.6 in March.

Reports regarding employment showed that only 88,000 new jobs were created in March, way below the expected 190,000 goal. The unemployment rate fell to 7.6% only because of a slow down in the rate of labor-force participation.

Topping this somber picture is the sequester, which has just started to move.


Chinese GDP fell down to 7.7% in Q1, missing the 8% growth target. Industrial production, manufacturing (as represented through PMI) and exports, likewise, did not make the grade.

The government’s campaign against corruption through ‘gift giving’ has affected retail sales, especially in the catering industry.

Latest surveys also indicated that home prices in China went up in 68 of 70 cities. Top-ranking cities posted a huge rise in home prices. Policymakers will most likely maintain the stringent measures to control the rise in property prices and shadow-banking.

Final assessment: The three major economic regions show clear signs of instability.


Germany showed some positive signs; but economic sentiment fell down to 42.

In the United Kingdom, joblessness increased by 70,000 to 2.56 million from December through February. Unemployment rate increased to 7.9%. Moreover, retail sales, including fuels, fell 0.7% within March, and 0.5% within the year. And next week’s GDP data will show if the U.K. has entered a triple-dip recession.

Tuesday, March 26, 2013

Can the New Argentine Pope Save the Catholic Crisis in Latin America

Can the New Argentine Pope Save the Catholic Crisis in Latin America

There had never been a Latin American pope despite that it is home to nearly half of the world’s 1.2 billion Catholics but between 2000 and 2010, the percentage of Mexicans that identify as Catholic dropped from 88 to less than 83 — the largest fall recorded to date.  Now that the new Pope is the place, can he save his church?  Furthermore, the Vatican had been concerned about the remarkable decline of Catholicism throughout the region in the preceding decade. Vatican had once seen the area as a “continent of hope,” it now thought of it as a “continent of concern.”

Politicians have defied the church in ways, such as in Mexico City, officials legalized euthanasia, and same-sex marriage and adoption, in 2009.  The peril of excommunication did nothing to alter their minds.  Argentinian President Cristina Fernández de Kirchner legalized same-sex marriage in 2010.  She countered to the resistance accumulated by Bergoglio by accusing him a relic from the past “reminiscent of the Middle Ages and the Inquisition.”  Chilean President Sebastián Piñera, of the historically Catholic Christian Democratic Party, enacted an anti-discrimination law that included sexual orientation as a category for protection against the strenuous opposition from Catholic officials in 2012.  And up to this day, Piñera is pushing legislation to legalize same-sex civil unions.

10 Years After: Britain Today

Prime Minister Tony Blair, addressed the nation: Britons woke to the footage of fireballs over Baghdad on March 20, 2003.  The first cruise missiles were launched from American ships in the Persian Gulf.
“The threat to Britain today is not that of my father’s generation.  War between the big powers is unlikely.  Europe is at peace.  The Cold War already a memory.  But this new world faces a new threat: of disorder and chaos born either of brutal states like Iraq, armed with weapons of mass destruction, or of extreme terrorist groups. Both hate our way of life, our freedom, our democracy.”
The comments wittingly said by Mr. Blair in his speech in Chicago in 1999 in which the prime minister, flush with success in Kosovo, had outlined his doctrine:
“We are all internationalists now, whether we like it or not. We cannot refuse to participate in global markets if we want to prosper. We cannot ignore new political ideas in other counties if we want to innovate. We cannot turn our backs on conflicts and the violation of human rights within other countries if we want still to be secure.”

Sunday, February 17, 2013

United States: Intellectual Property Outlook: Cases And Trends To Follow In 2013

I. Introduction
In the coming year, we anticipate a series of events and decisions with varying degrees of impact on intellectual property law in the United States and the way we advise our clients. This article highlights cases we are monitoring that present, in our view, significant issues relating to various aspects of intellectual property law. Most of these cases are pending appeal at some level, and each has the potential for considerable impact on the landscape of U.S. intellectual property law. A small number of recently-decided cases have also been selected for inclusion in this discussion, as it remains to be seen precisely how these decisions will play out in practice over the coming year. Lastly, we take a look at continuing trends in the intellectual property marketplace and review key legislation, including what to expect from the recently-enacted America Invents Act.

II. Cases to Watch in 2013
A. Patentability of Isolated Human Genes
The Association for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398, is once again headed to the Supreme Court—this time on the merits. The Supreme Court recently granted certiorari on one seemingly simple question: "Are human genes patentable?" In 2012, the Court reversed and remanded the Federal Circuit's split decision that isolated DNA sequences were patent eligible—ordering the Federal Circuit to reconsider its ruling in light of the Court's opinion inMayo Collaborative Services v. Prometheus Laboratories, Inc. In finding that the claims at issue covered nothing more than laws of nature, the Mayo Court focused on "whether the claims do significantly more than simply describe [] natural relations" and whether the "claims add enough to their statements of the [law of nature] to allow the processes they described to qualify as patent-eligible processes that apply natural laws." On remand, the Federal Circuit achieved substantially the same result as before Mayo: a 2-1 split decision finding that isolated human DNA sequences are patent eligible.
By way of background, Supreme Court precedent establishes three judicially created exceptions to Section 101's broad approach to patent subject matter eligibility: "laws of nature, natural phenomena, and abstract ideas." These general categories have also been interpreted to exclude mental processes and products of nature because "[t]he concepts covered by these exceptions are 'part of the storehouse of knowledge of all men . . . free to all men and reserved exclusively to none.'"Mayo further defined the law of nature exception, focusing on whether a particular claim would preempt others from applying a law of nature. On remand, the Federal Circuit once again found that isolated DNA is patent eligible; however, the fractured panel issued three separate opinions. The heart of the majority opinion that isolated DNA is patent eligible is its finding that "isolated DNA is not just purified DNA." Judge Lourie, the majority's author, explained, "Purification makes pure what was the same material, but was combined, or contaminated, with other materials. Although isolated DNA is removed from its native cellular and chromosomal environment, it has also been manipulated chemically so as to produce a molecule that is markedly different from that which exists in the body." Naturally occurring "DNA exists in the body as one of forty-six large, contiguous DNA molecules. Each of those DNA molecules is condensed and intertwined with various proteins, including histones, to form a complex tertiary structure known as chromatin that makes up a larger structural complex called a chromosome." Thus, because an isolated DNA molecule is a free standing nucleotide sequence divorced from the naturally occurring chromosome, isolated DNA molecules "are different from the natural products in 'name, character, and use.'"
Judge Moore was unconvinced that the chemical change cited by Judge Lourie was sufficient to render an isolated DNA molecular patent eligible because, in part, the isolated gene "does not clearly have a new utility and appears to simply serve the same ends devised by nature." In the end, Judge Moore concluded that the settled expectations of the biotechnology industry and Congress' implicit approval of the USPTO's policy of awarding patents on human genes was enough to tip the scales. Thus, Judge Moore found "it is not clear to me that [precedent] leads inexorably to the conclusion that isolated DNA molecules are not patentable subject matter."
While Judge Lourie, and, to a lesser extent, Judge Moore focused on the structural differences between isolated DNA and native DNA, Judge Bryson's dissent focused on the structural similarities. For Judge Bryson, Mayo dictates that "a patent involving a product of nature should have an inventive concept that involves more than merely incidental changes to the naturally occurring product." Judge Bryson continued, although an isolated DNA molecule may have different terminal ends than its naturally occurring counterpart, "[t]he functional portion of the composition—the nucleotide sequence—remains identical to that of the naturally occurring gene." Thus, for Judge Bryson, isolated genes fall outside of Section 101's broad subject matter eligibility net.
The Supreme Court's decision will lay to rest the gene patent saga that has captured the attention of the popular press since Judge Sweet's district court ruling invalidated many of Myriad's patents in 2010. As the sea of amici briefs indicates, the issue of gene patents is hotly contested by patent practitioners as well as medical organizations. The Court will be forced to tackle difficult policy issues and the biotechnology industry's settled expectations, and decide whether to create a categorical rule excluding isolated genes from patent eligibility.

B. Abstract Ideas and Mental Processes Post-Bilski
Section 101 of the Patent Act provides that a "process, machine, manufacture, or composition of matter" may be patented. While the machine-or-transformation test may still be a presumptive starting point in any Section 101 analysis, following the Supreme Court's decision in Bilski, the Federal Circuit has increasingly looked to whether the claims at issue recite a process that is "manifestly abstract," and therefore ineligible for patent protection. However, neither the Supreme Court nor the Federal Circuit has set forth any clear test for evaluating whether a process is "manifestly abstract." In addition to the inherent difficulties in defining when something is "abstract," Federal Circuit jurisprudence post-Bilski has been complicated by the court's inconsistencies in deciding cases involving similar patents with comparable claim language, with the court often applying certain indicia of non-abstractness in one way in some cases and then in an entirely different way in others.
The Federal Circuit's July 2012 opinion in CLS Bank Int'l v. Alice Corp., No. 11-1301, is an example of yet another sharply divided decision. Alice asserted patents relating to a computerized trading platform for exchanging obligations in which a trusted third party settles obligations between a first and second party so as to eliminate 'settlement risk' against CLS Bank. The district court had granted summary judgment of invalidity on the basis that the patents did not claim patent eligible subject matter. When overturning the district court's decision, the Federal Circuit declined to define the concept of 'abstract,' instead implementing a new heightened standard for holding that a claim is not patentable under Section 101. Under CLS Bank, a claim is not abstract "when—after taking all of the claim recitations into consideration—it is not manifestly evident that a claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under §101."
On the other hand, Judge Prost issued a relatively strongly worded dissent, characterizing the majority's decision as an attempt to resist the Supreme Court's unanimous directive to apply the patentable subject matter test with more vigor and by not following the Supreme Court's instructions in its holding and approach by failing to see if the claims include an "inventive concept." She noted that the Federal Circuit had been reversed in a §101 case for a second time in the last three terms of the Supreme Court, "hinting (not so tacitly) that our subject matter patentability test is not sufficiently exacting." Judge Prost's dissent found the claims clearly directed to an abstract idea.
On October 9, 2012, the Federal Circuit vacated the July 2012 decision and ordered a rehearing en banc. The Federal Circuit will be considering two questions: a) what test should the court adopt to determine whether a computer-implemented invention is a patent ineligible "abstract idea;" and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea; and b) in assessing patent eligibility under Section 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for Section 101 purposes?

C. Claim Construction
Earlier this year, the Supreme Court denied certiorari in a case involving, among other things, whether appellate courts should grant deference to district courts' claim constructions. See Retractable Technologies, Inc. v. Bectron, Dickinson and Company, No. 11-1154. Although the Court denied certiorari, the issues raised are sure to be revisited in subsequent Federal Circuit opinions and perhaps again at the Supreme Court on the merits. Of particular importance is the growing support to revisit the Federal Circuit's en banc opinion in Cybor Corp. v. FAS Tech, which held claim construction should be reviewed de novo. In Judge O'Malley's dissent from the Federal Circuit's denial of Retractable's petition for rehearing en banc, she noted that six active Federal Circuit judges have expressed a desire to revisit the court's holding in Cybor. With Judge Bryson and Judge Linn recently taking senior status, there are currently three vacancies on the court and the majority of the active judges (five of nine) have expressed a desire to revisit Cybor. As the composition of the court shifts and vacancies are filled, there is a strong possibility that the court will revisit the standard of review for claim construction.

D. Standing to Challenge Validity When There is a Covenant Not to Sue
In a decision issued earlier this year, the Supreme Court found that a party seeking to divest a court of jurisdiction over a declaratory judgment claim must meet the "formidable burden" of showing that it "'could not reasonably be expected to resume' its enforcement efforts against [the party seeking declaratory judgment]." Already, LLC v. Nike, Inc., 568 U.S. ___, No. 11-982 (Jan. 9, 2013). In finding that Nike's unilateral Covenant not to Sue met this high burden, the Court laid out a blueprint for safely exiting litigation, while leaving room for courts to maintain jurisdiction where the party seeking declaratory judgment can show an intention to develop products falling outside the scope of the covenant.
Nike designs and manufactures popular athletic shoes under the registered trademark Air Force 1. Already also designs and manufactures athletic shoes including lines known as Sugars and Soulja Boys. In July 2009, Nike filed suit against Already claiming trademark infringement, unfair competition, and trademark dilution under the Lanham Act and New York State law. In response, Already filed counterclaims for a declaratory judgment that Nike's Air Force 1 trademark was not, in fact, a valid trademark under 15 U.S.C. §1127 or New York law and for cancellation of the trademark's registration with the United States Patent & Trademark Office. Some four months after Already's counterclaims but before the start of discovery, Nike unilaterally delivered Already a "Covenant Not to Sue." Citing Nike's belief that Already no longer infringed or diluted the Nike mark "at a level sufficient to warrant the substantial time and expense of continued litigation," Nike promised that it "would not raise against Already or any affiliated entity any trademark or unfair competition claim based on any of Already's existing footwear designs, or any Already designs that constituted a colorable imitation."
Nike subsequently moved voluntarily to dismiss its claims with prejudice and to dismiss Already's counterclaims without prejudice on the grounds that the district court lacked subject matter jurisdiction. Already opposed dismissal of its counterclaims, arguing that the Declaratory Judgment Act created jurisdiction because an independent controversy existed over whether Nike had violated Already's rights by improperly obtaining a trademark registration. In support, Already presented affidavits from potential investors asserting that Nike's enforcement activities had either deterred them from investing in Already or had prompted them to withdraw prior investments. Further, an investor affidavit explained that Nike's Covenant did not provided adequate assurance that Nike could not "assert its trademarks against" Already in the future.
The Court found that under the voluntary cessation doctrine, Nike had the "formidable burden" of showing that it "'could not reasonably be expected to resume' its enforcement efforts against Already." The Court emphasized that the burden should not be taken lightly, noting that the Court must be "satisfied that it is 'absolutely clear' that the allegedly unlawful activity cannot reasonably be expected to recur." Nevertheless, the Court found that Nike met that burden because of the sheer breadth of the Covenant.
The Court emphasized that (1) "[t]he covenant is unconditional and irrevocable;" (2) "[b]eyond simply prohibiting Nike from filing suit, [the covenant] prohibits Nike from making any claim or any demand;" (3) "[i]t reaches beyond Already to protect Already's distributors and customers;" and (4) "it covers not just current or previous designs, but any colorable imitations." The Court further noted that because the Covenant covers not only the original allegedly infringing shoes but any colorable imitations of those designs, "'it is hard to imagine a scenario that would potentially infringe [Nike's trade-mark] and yet not fall under the Covenant.'"
Although Nike had the burden of showing mootness, the Court noted that "it was incumbent on Already to indicate that it engages in or has sufficiently concrete plans to engage in activities not covered by the covenant." The Court highlighted that Already had several opportunities but failed to show concrete plans to design or market a shoe that could even arguably fall outside of the scope of the Covenant. In short, the affidavits presented by Already failed to show "the sort of 'concrete' and 'actual' injury necessary to establish Article III standing."
In the end, the Court endorsed Nike's Covenant Not to Sue as sufficient to divest a court of subject matter jurisdiction. Those who face a declaratory judgment and wish to exit litigation without jeopardizing future enforcement of their intellectual property may do so by delivering a covenant not to sue that encompasses the four elements highlighted by the Supreme Court and discussed above. On the other hand, the Court sent a strong signal that not all covenants not to sue will be sufficient to divest a court of jurisdiction over declaratory judgment claims. As noted above, the majority highlighted the "formidable burden" the covenant granter must meet. Further, a concurrence written by Justice Kennedy and joined by three other justices asks lower courts to take heed of potentially abusive litigation tactics and to "proceed with caution before ruling that [covenants not to sue] can be used to terminate litigation." Whether courts and litigants will heed that warning remains to be seen.

E. Patent and Copyright Exhaustion
The issue of exhaustion, both under patent and copyright law, will be taken up by the Supreme Court in two separate cases, and possibly a third. The anticipated decisions will help clarify the law surrounding exhaustion on replicating technologies and international sales and importations into the United States, all of which are critical to effectively managing and maximizing your intellectual property rights.
1.Bowman v. Monsanto
The Supreme Court recently granted certiorari in Bowman v. Monsanto, No. 11-796, a case that, at least on its face, involves the doctrine of patent exhaustion and the conditional sale exemption.
The exhaustion doctrine (also known as the first sale doctrine) has its roots in longstanding Supreme Court precedent. It holds that once an authorized sale of a patented article occurs, the patentee's rights in the article are exhausted, and the purchaser is free to use or resell that article free of infringement. The conditional sale doctrine is of more recent origin, and comes from the Federal Circuit case Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992). That doctrine holds that patented articles can be "licensed" in such a way that restricts the rights of future licensees to make, use, or sell an invention. In many respects, the conditional sale doctrine is the exception that swallows the exhaustion rule.
The technology at issue in Bowman involves Monsanto's patented "Roundup Ready®" soybeans and soybean seeds. These soybeans are genetically modified to exhibit resistance to certain herbicides that are used, for example, in Monsanto's "Roundup®" product. Monsanto licensed farmers these seeds under the condition that the seeds may only be used by a licensed farmer in a single season, and that the second-generation seeds resulting from any crop may not be used, sold, or supplied to others for planting. However, the license agreement allowed farmers to sell second-generation seeds to local grain elevators as a commodity, without requiring the growers to place restrictions on grain elevators' subsequent sales of that seed.
The petitioner, Vernon Bowman, purchased seeds from a local grain elevator and later discovered that the seeds had herbicide resistance. These seeds turned out to be Monsanto seeds that were sold to the grain elevator pursuant to the authorization in the license agreement. After Bowman planted his first crop of seeds purchased from the grain elevator, he saved the resulting seeds and used them for subsequent seasons. Monsanto sued Bowman for patent infringement in the Southern District of Indiana, and later moved for summary judgment of infringement. Bowman defended that the authorized sale to the grain elevator exhausted Monsanto's patent rights in the seed. The district court disagreed, and found no exhaustion.
On appeal, the Federal Circuit affirmed, while sidestepping the issue of exhaustion. The court of appeals held that even if exhaustion applied to the seeds sold to the grain elevator, "such a conclusion would be of no consequence because once a grower, like Bowman, plants the commodity seeds containing Monsanto's Roundup Ready® technology and the next generation of seed develops, the grower has created a newly infringing article." By so doing, the Federal Circuit cast the issue as an infringement rather than an exhaustion question.
The petition for certiorari in Bowman v. Monsanto raised a two-part question: "whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?" Monsanto opposed the petition partly because the Federal Circuit did not rely on the exhaustion doctrine. Thus, Monsanto contended, the case was not a proper vehicle to consider exhaustion, as that issue was not properly presented.
Despite Monsanto's opposition, the Supreme Court granted certiorari on October 5, 2012. Oral argument is scheduled for February 19, 2013.
Due to the ambiguousness of the questions presented, the potential implications of this case are unclear. If the Supreme Court decides to visit the doctrines of exhaustion and conditional sales generally, the decision could have an impact across many industries. More likely, the Supreme Court will focus narrowly on the issues as applied to self-replicating technologies like plant seeds. The sleeper issue of whether the planting of a lawfully-acquired seed constitutes impermissible "making" of a patented article also lingers in this case.

2.Ninestar v. ITC
Ninestar v. ITC, No. 12-552, is a petition for certiorari that involves the issue of international patent exhaustion. The question is whether the authorized sale of a patented article abroad exhausts the patent rights in that article, such that the article may be imported into the U.S. without infringement.
In Jazz Photo v. ITC, 264 F. 3d 1094 (Fed. Cir. 2001), the Federal Circuit held that sales of patented articles abroad do not exhaust a patentee's U.S. rights. Thus, under the current approach, a U.S. patentee can restrict imports of patented articles that were sold abroad. Ninestar challenges the Jazz Photo line of cases.
The technology at issue in this case is Epson's patented ink cartridges. The petitioners ("Ninestar") bought used Epson ink cartridges abroad, refilled them with ink, and imported the "remanufactured" cartridges into the U.S. at a lower price.
In the underlying action against Ninestar, the ITC found that Ninestar's importation of ink cartridges infringed Epson's U.S. patents and issued exclusion orders. In a later enforcement proceeding, Ninestar defended on the grounds of patent exhaustion. Ninestar argued that the prior international sales exhausted Epson's patent rights in the cartridges, and that its refilling of the cartridges constituted a permissible repair. Because the remanufactured cartridges were non-infringing, Ninestar contended it did not violate the exclusion orders.Relying on Jazz Photo, the ITC rejected Ninestar's exhaustion arguments on the basis that the foreign sales of ink cartridges did not exhaust Epson's U.S. patent rights. The Federal Circuit affirmed on the same grounds.
Ninestar subsequently filed a petition for certiorari on November 2, 2012. First, Ninestar contends that Jazz Photo improperly departed from the common law, which held that foreign, authorized sales of patented articles constitute exhaustion of domestic patent rights. Second, Ninestar argues that the Supreme Court's decision in Quanta compels an opposite conclusion.
The Supreme Court has not yet granted certiorari in this case. However, given the other IP exhaustion cases already being considered this term—Bowman and Kirtsaeng—the Supreme Court may well consider this case also.
This case could have major implications for U.S. patent owners who sell patented articles internationally. Often, such patented articles are sold for cheaper abroad than they are domestically. If the Supreme Court were to overturn Jazz Photo, it would mean that, in many cases, importers will be able to undercut domestic pricing by buying abroad. In order to face competition from importers, patentees may have to raise foreign prices or lower domestic prices. The overall effect will be to decrease the value of a U.S. patent.

3. Kirtsaeng v. John Wiley & Sons, Inc.
The Supreme Court heard oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697, on October 29, 2012. In the underlying case, Kirtsaeng purchased legitimate, international copies of Wiley's textbooks, and imported them into the United States for resale. These international versions were slightly different than the U.S. version. The first sale doctrine under Copyright law, codified at 17 U.S.C. § 109(a), allows for the owner of a lawfully made copy of a copyrighted work to resell it without the authority of the copyright holder. However, 17 U.S.C. § 602(a) makes it unlawful to import foreign-made copies of copyrighted work into the U.S. without the copyright holder's approval.
The Second Circuit held that a book legally manufactured outside of the United States cannot be imported without the copyright owner's approval, finding that "lawfully made" under the first sale doctrine means "legally manufactured within the United States." John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210 (2d Cir. 2011). The Second Circuit acknowledged that a likely result of their finding would be that copyright holder would produce all of their goods abroad before importing them into the United States, but were not deterred from their interpretation of the Copyright Act.
Amici briefs urged a strict finding to limit the holding to the Copyright Act without importing from trademark and patent law. At the same time, as suggested during the oral arguments, the practical consequences of a strict reading of the statute could overly restrict the innocent purchaser and operations of bookstores, art museums, and other such businesses.
The doctrine of patent exhaustion is rooted in the same common law origins as copyright exhaustion, although patent exhaustion is not bound by a specific statute. As explained above, the Supreme Court will be hearing oral arguments in Bowman v. Monsanto next month regarding patent exhaustion, and the Supreme Court rulings in the two cases could be related.

F. Pharmaceutical Reverse Payment Standards
In Federal Trade Commission v. Watson Pharmaceuticals, Inc., et al., No. 12-416, the Supreme Court is set to decide whether reverse payment settlements, colloquially known as "pay-for-delay" settlements, violate antitrust laws. In order to market a new drug in the United States, a company must first obtain approval from the Food and Drug Administration by filing of a new drug application (NDA). Along with the NDA, the manufacturer must also submit detailed reports about the drug's safety and efficacy in addition to any patents the drugs embodies. A generic drug manufacturer may bypass most of the NDA requirements by filing an abbreviated new drug application (ANDA) with the FDA. The ANDA generally need only show that the generic drug has the same active ingredients and is bioequivalent to the brand-name drug. An ANDA applicant can petition to begin selling immediately a generic drug arguably covered by patent by certifying its belief that "the patent is invalid or will not be infringed by the manufacture, use, or sale of the new drug for which the application is submitted." The patent holder then has 45 days to institute infringement proceedings against the ANDA applicant. Once a suit is filed, the FDA stays the approval process for 30 months, during which the infringement lawsuit can run its course. After the 30 month stay, the FDA may approve the ANDA and the generic drug may be marketed.
At the end of the 30-month period, or on the cusp of a non-infringement or invalidity finding, the brand-name manufacturer is faced with a generic manufacturer poised to flood the market with a cheaper product thereby drastically diminishing the brand-name's profits. In the alternative, the brand-name manufacturer can pay the generic manufacturer to settle the infringement suit and withdraw its ANDA application. In exchange, the generic manufacturer agrees not to enter the market for a period of time. Thus, the brand-name manufacturer can avoid the possibility of an invalidity finding or a finding of non-infringement and maintain its position as the market leader.
The Supreme Court is presented with a clear circuit split. The Eleventh, Seventh, and Federal Circuits have held that federal competition law categorically permits reverse-payment agreements unless the underlying patent litigation was a sham or the patent was obtained by fraud. The theory is that these agreements are lawful provided that they do not exceed the scope of the original patent grant. Thus, a patentee may avoid the risk of a court invalidating a drug patent or the expiration of the 30-month stay by paying a would-be generic manufacturer to remain out of the market up to the term of the patent. Opponents to this approach argue that the ANDA proceedings were designed to facilitate judicial review of validity and infringement and that naked agreements not to compete violate antitrust laws.
The Third Circuit, however, treats reverse-payment agreements as presumptively anticompetitive because "any payment from a patent holder to a generic patent challenger who agrees to delay entry into the market [is] prima facie evidence of an unreasonable restraint of trade." According to the Third Circuit, this presumption can be rebutted by showing either "that there is in fact no reverse payment because any money that changed hands was for something other than a delay" or "that reverse payment offers a competitive benefit that could not have been achieved in the absence of a reverse payment."
The Court is set to hear argument later this year.

G. Obviousness Standard
Recently, in Kinetic Concepts v. Smith & Nephew, No. 2011-1105 (Fed. Cir. Aug. 13, 2012), the Federal Circuit issued a decision involving the role of the judge and jury in determining the legal question of obviousness. Many commentators expected a petition for rehearing en banc, which was ultimately not made. However, the Kinetic Concepts case highlights an area of patent law that is ripe for reconsideration in the upcoming year.At trial in the Kinetic Concepts case, the judge asked the jury to resolve disputed questions of fact regarding obviousness. The judge also allowed the jury to issue a conclusion on the underlying legal issue of obviousness, which the judge indicated he would take as "advisory." The jury ultimately concluded that obviousness had not been proven. On a motion for JMOL, the judge ruled to the contrary, finding that the differences between the prior art and the claimed invention were so minimal as to be obvious to anyone of skill in the art.
On appeal, the Federal Circuit reversed the district judge and reinstated the jury verdict. The court observed that the jury made both explicit and implicit factual findings in reaching its non-obviousness conclusion. The court held that the district court erred by failing to defer to the jury's factual findings, which were supported by substantial evidence. According to the court, the jury's findings on secondary considerations of non-obviousness compelled the legal conclusion of no obviousness.

III. Evolving Trends in the IP Marketplace
A. FTC Review of Patent Assertion Entities
The FTC and Justice Department are considering whether patent assertion entities ("PAEs"), also commonly referred to as non-practicing entities ("NPEs") disrupt competition in high-tech markets, recently holding the first of potentially more workshops in early December 2012. PAEs generally do not make or sell any products or services of their own, depending solely on licensing for revenue. Accordingly, they are less susceptible to counter patent claims and because they have fewer documents than traditional practicing entities, they are less concerned about discovery burdens. Proponents of PAEs and NPEs argue that they promote a fair market by protecting the IP rights of smaller inventors. Without the backing of PAEs, the argument goes, small inventors do not have the resources or the clout to obtain fair licensing deals from established corporations. Regardless of the merits of these arguments, one thing remains clear: with estimated revenues of $29 billion from licensing in 2011 alone, PAEs have been wildly successful at extracting value out of patent portfolios.
Further complicating the NPE debate is the evolving structure of NPE's corporate networks. Many NPE's are subsidiaries of larger corporations that exist only to monetize particular patent portfolios. Moreover, traditional corporations such as Microsoft, Google, and others have joined forces to create patent assertion entities aimed at recuperating some of the cost of defensive patent acquisitions. For example, Apple, Microsoft, RIM, Sony, and Ericsson created the Rockstar Consortium to monetize patents purchased from Nortel Networks. Similarly, Nokia and Sony have assigned certain of their patents to an entity, Mobile-Media Ideas LLC, which has since sued Apple for patent infringement.

B. Trends of E-Discovery
Last year, two major e-discovery movements gained headway with the courts: the development of model e-discovery orders designed to reduce the cost of discovery and the acceptance of predictive coding. Predictive coding generally involves the use of computer software to classify automatically documents according to the degree to which they match certain input criteria. The end result is a relatively small pool of documents incorporating key concepts ripe for human attorney review. Courts and attorneys had been reluctant to adopt the technology, instead relying on "linear review," in which attorneys search documents through Boolean search terms. However, last year, several courts permitted the use of predictive coding in efforts to reduce litigation costs and perhaps improve the quality of document productions.
Around the same time that predictive coding was gaining traction, several courts adopted iterations of the Federal Circuit's Model E-Discovery Rules with the hope of curbing the rising cost of discovery in patent cases. While these model rules limit the number of search terms and custodians in e-discovery, none have adopted provisions regarding predictive coding. As the costs of patent litigation continue to rise, parties may encourage courts to incorporate predictive coding measures into their e-discovery orders.

C. Kodak Patent Sale
On January 11, 2013, a federal bankruptcy judge approved the sale of Eastman Kodak Co.'s digital imaging patent portfolio for $527 million. The deal was much less than the $2 billion or more Kodak had hoped to achieve, but it remains the largest sale since Nortel Networks' $4.5 billion patent sale last year. The deal is expected to close in late-February or early-March, and will settle a lot of patent litigation that could have hurt the company's reorganization efforts. Purchasers include Apple, Microsoft, Google, RIM, Adobe, Samsung, and Facebook, among others.

IV. Legislation to Watch in 2013
A. Final Provisions of American Invents Act (AIA) Coming Into Effect
The final provisions of the Leahy-Smith America Invents Act (AIA) will go into effect on March 16, 2013. Significant features include the implementation of the "first inventor to file" system, and a broadening of the definition of prior art.
The biggest upcoming change is the transition from the "first to invent" system to a "first inventor to file" system. The new approach awards patent rights to the first person to file for a patent, with some exceptions that are roughly outlined here. First, the filer must be an actual inventor of the technology. The AIA provides a new "derivation" proceeding, whereby a later filer can prevail in the rights to a patent by proof that an earlier filer derived the technology from him. Second, patent applications are still subject to invalidation by prior art. The AIA allows an inventor to make a public disclosure that will operate as prior art against other filers, while giving that inventor a one-year grace period to file himself.
The AIA also significantly broadens the scope of prior art. Beginning with patent applications filed March 16 or later, prior art will encompass any disclosure available to the public before the effective filing date of the claimed invention. This includes foreign patents and applications, and public use anywhere in the world. In addition, unpublished patent applications will, for the first time, serve as prior art. These additional sources of prior art will make it easier for patent infringement defendants to raise invalidity defenses. However, the effect of the new prior art definition will not be seen immediately, as it will take several years for applicable patents to begin being enforced.

Last year, two Congressmen introduced the Saving High-Tech Innovators from Egregious Legal Disputes Act of 2012 (H.R. 6245)—or the SHIELD Act for short. The goal of the SHIELD Act was to amend existing patent laws "to provide for the recovery of computer hardware and software patent litigation costs in cases where the court finds the claimant did not have a reasonable likelihood of succeeding." The SHIELD Act was touted as a mechanism for businesses to fight back against "patent troll" lawsuits by forcing a patent owner who loses an infringement suit to pay the winner's legal fees. However, existing law protects innovators from "egregious legal disputes" under 35 U.S.C. § 285, that is, a court may award attorney's fees in "exceptional cases." The SHIELD Act would expand plaintiff's exposure by permitting—but not mandating—a court to award attorney's fees in the event the court decides that the plaintiff did not have a reasonable likelihood of success. The SHIELD Act of 2012 was referred to the judicial committee where it languished until the end the 112th Congress. Supporters will likely reintroduce the bill in 2013, but it is equally likely that the 2013 version will suffer the same fate as the 2012 SHIELD Act.

C. Hague Agreement Concerning International Registration of Industrial Designs
On December 18, 2012, President Obama signed into law the Patent Law Treaties Implementation Act of 2012, Pub. Law 112-211, which enacted provisions to implement the Hague Agreement Concerning International Registration of Industrial Designs and the Patent Law Treaty. Implementation of the Hague Agreement will result in a filing system for design patents similar to the already existing PCT system for utility patents. The main difference is that design patents will now be afforded provisional patent rights under 35 U.S.C. 154(d) for published international design applications. The law likely will not become effective until December 19, 2013.

D. Changes to Trade Secret Law
Straddling the start of 2013, the Senate and the House of Representatives passed significant legislation altering the Economic Espionage Act ("EEA"), sending a clear signal that Congress intends to protect intellectual property. The EEA criminalizes two types of trade secret misappropriation: (1) the theft of a trade secret to benefit a foreign government, and (2) the theft of a trade secret carried out for economic advantage, regardless of whether or not the theft is intended to benefit a foreign entity.
The Theft of Trade Secrets Clarification Act of 2012, S. 3642, was Congress' response to a Second Circuit Court of Appeals opinion that overturned a defendant's conviction under the EEA for stealing trade secrets from his employer, Goldman Sachs. The Second Circuit interpreted the EEA's requirement that a trade secret "is related to or included in a product that is produced for or placed in foreign commerce" narrowly, finding that a former employee who copied Goldman's internal high frequency trading system could not be prosecuted under the EEA because Goldman's system "was neither 'produced for' nor 'placed in' interstate or foreign commerce." The Theft of Trade Secrets Clarifications Act amends the EEA to replace the requirement that an alleged trade secret must be "related to or included in a product that is produced for or placed in interstate or foreign commerce" with language covering trade secrets found in "a product or service used in or intended for use in" interstate or foreign commerce. The EEA as amended criminalizes the misappropriation of trade secrets that are used internally to gain a competitive advantage but may not be embodied in a product placed in interstate or foreign commerce.
On January 1, 2013, the House of Representatives passed The Foreign and Economic Espionage Penalty Enhancement Act of 2012 (H.R. 6029) ("Penalty Enhancement Act"), which increases the maximum penalty for certain trade secret misappropriations under the EEA. The Penalty Enhancement Act seeks to increase the U.S. Government's ability to deter misappropriation by drastically increasing the penalty for misappropriating trade secrets for the benefit of a foreign government. The act increases the penalty for individuals from a fine of "not more than $500,000" and/or imprisonment of not more than 15 years to a maximum of fine of $5,000,000 and maximum prison term of 20 years. Similarly, the Penalty Enhancement Act enhances the penalty for organizations from a $10,000,000 fine to "not more than the greater of $10,000,000 or three times the value of the stolen trade secret to the organization, including the expenses for research and design and other cost of reproducing the trade secret that the organization has thereby avoided."By drastically increasing the penalty for misappropriating trade secrets for the benefit of a foreign government and increasing the scope of trade secret protection across the board, Congress has sent a clear signal that it is serious about protecting domestic intellectual property. The growing support for protecting domestic trade secrets could spill over to creating a private right of action for companies to recover in federal court for the misappropriation of their trade secrets. Currently, most trade secret cases are tried under state law in state courts or in federal courts sitting in diversity jurisdiction. Despite many states' adoption of the Uniform Trade Secrets Act, there continues to be widespread differences in states' application of the law. As a result, there is little uniformity in the application of trade secret law across the United States.
Last year the Senate introduced the Protecting American Trade Secrets and Innovation Act of 2012, which would amend the EEA to include a private right of action. The Act includes a provision permitting the ex parte "seizure of any property (including computers) used or intended to be used, in any manner or part, to commit or facilitate the commission of the violation alleged in the civil action" provided that the plaintiff shows "by clear and convincing evidence that issuing the order is necessary to prevent irreparable harm." This would permit a trade secret holder to limit quickly the damage done to its position in the competitive market place. Perhaps more importantly, the nationalization of trade secret law would create a greater degree of uniformity and may facilitate a more efficient resolution of trade secret misappropriation claims.
Although the Protecting American Trade Secrets and Innovation Act of 2012 languished in the Senate Judiciary Committee, the growing support in Congress for stronger protection of domestic trade secrets suggests that when reintroduced in 2013, the Act will gain some traction.

V. Conclusion
As in years past, we can expect 2013 to bring significant developments in the intellectual property arena. Both the courts and practitioners will continue to grapple with the bounds of patentable subject matter post-Bilski and other issues that have far-reaching impact on how companies choose to pursue, litigate, and invest in intellectual property. As provisions of the America Invents Act continue to go into effect and Congress considers additional legislation, the year promises to shed light on the interaction between patent-related legislation and the intellectual property marketplace.