Saturday, June 14, 2008

Saturday Roundup

To our knowledge Floyd Landis should have started the Lumberjack 100 NUE race early this morning in northern Michigan's Manistee National Forest. We'll post any news we hear about it as soon as it comes our way.

The Boulder Report reviews some of this week's strangely absurd news in cycling.

The CyclingNews previews the Lumberjack 100 with nary a mention of Floyd Landis, who hasn't exactly performed to his potential in the NUE series thus far this year.

In more CyclingNews the UCI has approved the 15 day "no start rule" as a first step towards the possible sanctioning of any rider whose blood values do not conform to the profile established by the blood passport.

Legal Analogies Dept.
The HuffPost has an article about problems and argments about Patent law that seem to us similar to some things we've seen with doping, the formation of WADA, and the expansive view of what should be regulated, and how punishment should be meted out. Some snips:

So, should the patent system be only about technology -- or about everything?

While it may not be surprising that patent lawyers favor everything, it is remarkable to see an amicus brief of 22 patent law and business professors advocating for everything as well. Indeed, the professors (many of whom practice as well) argue that circumscribing limits to the patent system is futile. Why? Because patent lawyers have managed to evade judicially crafted limits to subject matter through clever draftsmanship and will continue to do so. This remarkable argument -- "let's get rid of limits because lawyers will figure out how to get around them" -- is rarely heard in other contexts. Why should it be so compelling in patent law? Are patent lawyers so extraordinarily innovative that judges should throw up their hands and allow anything novel and non-obvious to be patented?

Should we allow doping because clever dopers will always find their way around any limits we draw? Should we bother with doping hearings, because clever lawyers will always find a way to justify errors in protocol and procedure, so there really is no defense once accused?

The official reason for having a new appellate court hear all patent appeals was to make patent law consistent -- NOT to enhance the patent incentive. Maybe some, including patent lawyers, wanted to do so but that's not what Congress thought it was doing when it created the Federal Circuit in 1980.

Perhaps the Federal Circuit's pro-patent tilt was the inevitable result of staffing a specialized court with patent specialists. As distinguished scholar and jurist Richard Posner puts it, "a specialized court tends to see itself as a booster of its specialty." And if judges can advocate expansion of their specialty, why not professors?

We need the CAS because athletics is an area that is too special for any other dispute resolution forum to handle. That the specialty of athletic law under develops it own arcana and clubbiness is a good thing. We need WADA not just to (fail to) harmonize rules and standards, but to beat the bully pulpit against the evil that is doping, and for the rightness of the holy war against doping.
Without citing any evidence and without acknowledging the costs imposed by the patent system, the professors claim that innovation would suffer if patents on business methods were curtailed.

Genetic Doping! Think of the kids!

The pro-everything professors acknowledge the plethora of bad patents on software and business methods. But they argue that instead of trying to limit what is patentable, we should look to the basic tools of the patent system to eliminate bad patents. In other words, trust us (and our practitioner colleagues).

The IOC/WADA model of testing and ajudication may have had some minor problems over the last quarter century, and there is nothing wrong with the approach. We should trust the people involved that they will get it right sooner or later, because they are the experts.
There appears to be something democratic about patents for everything. Every discipline, field, sector, industry, and niche gets its patents. Doctors, dentists, psychologists, legislators, accountants, athletes, yoga instructors, cooks... Anybody in the real world. You can get them, or not -- it's your choice. But everybody, like it or not, is obliged to search, identify, evaluate, defer to, and negotiate patents -- and to hire the professional help needed to do so cautiously and prudently. Yes, you still might lose in litigation (half the litigants do!) but this is the sport of kings, and it's a privilege to play.

There appears to be something noble in the pursuit of "doping cheats", yet everybody involved in an organized sport is being asked to sign away rights in order to participate, held to strict liability standards regarding substances most have never heard of, forced to accept adjudication in systems intentionally biased against them, against government funded bodies against which an individual has no support.

It's sport, and a privilege to play, so shut up.


5-iron said...

I live a couple hours from Manistee, where the Lumberjack 100 is being held (nobody would cover for me at work, so I'm a loser and couldn't go watch). I cannot find any news of this. The sportscasters apparently are only concerned with the Tigers beating the Dodgers and whether or not Chelios is coming back next year. They underestimate my Floyd Landis enthusiasm! There was some bad weather up there a few nights ago. Many, many roads were washed out and they closed some of the state parks due to flooding. I'm wondering if participants were even able to reach the venue, and if they did, was the course still there and in shape for a race. I'm assuming it's still on since there is nothing to indicate otherwise on the website.