A little over a week ago, according to the New York Times, someone posted a large number of emails and other internal correspondence that the University of East Anglia said was stolen from their computer systems. What makes this important news is that the material shows the inner workings of the university's Climatic Research Unit (CRU), a leading research center that advises the United Nations' Intergovernmental Panel on Climate Change (IPCC). The IPCC, in turn, has largely taken the lead in convincing the rest of the world that global warming is the issue of our times upon which the fate of the world turns. Or at least that's the way their outlook seems to me.
I have not examined the emails in detail, and so will not try to make a judgement on what some sources allege is a cavalier and even conspiratorial attitude the emails reveal, on the part of the CRU's leading climate scientists, to stifle papers written by researchers who oppose the idea that global warming is as serious or severe as the CRU claims. Rather, I'd like to ask the question: what are the roles of engineers and engineering organizations in a situation so fraught with politics and uncertainty as the controversy surrounding global warming?
First, there is the nature of the issue itself. We had next to no idea about what prehistoric climates were like until the last three or four decades, when techniques of ice-core measurements at the South Pole and similar methods began to enable us to reconstruct. with impressive detail, the temperatures and carbon dioxide content of ancient atmospheres. The story these data tell is a complex one, and gives us no direct information about what will happen next. The earth has been considerably warmer in the past than it is now, and certainly much colder. There is more carbon dioxide in the air now because of anthropogenic causes than there ever was before. But the more you try to pin down climatologists as to exactly what is going to happen when, and the farther into the future you go in your request for forecasts, the fuzzier and less certain the answers get. This is just the nature of trying to forecast a strictly chaotic system, which is what the global climate is. Chaotic systems always operate within certain broad boundaries, but they can produce short excursions beyond those boundaries and predicting exactly when these extremes occur is next to impossible. Only in this case, "short" may mean a century.
So the scientific problem itself is fraught with uncertainty, since it is in the class of problems that cannot be exhaustively explored either in the laboratory or with a computer. Unfortunately, since it involves the whole world, the playing out of the problem in real time will involve us all to some degree, so it combines intractibility with universality. A worse situation for the application of engineering design and prediction techniques could hardly be devised.
But if (and that is a big "if") global warming really is the crisis of our times, engineers are at least partly responsible for getting us into the difficulty. What is their responsibility in getting us out again?
There seem to be two distinct schools of thought on how to answer that question. The first school, favored by the IPCC and its political allies, says basically that modern industrial society has been a bad boy and needs to go sit in a corner for a timeout. The timeout consists of throwing over most of the fossil-fuel infrastructure and drastically restricting energy use (by governmental fiat, since free-market economics won't do the job) until we can retool our lives to live with a much smaller "carbon footprint." Doing all this would fit into the ambit of engineering, which is the application of science and technology to the wants and needs of man. But the wants and needs in this first course of action would be artificially imposed, for the most part, by a small elite who have convinced themselves that they are averting global disaster by exerting a form of political control over the vast unwashed multitudes, which will otherwise plunge themselves like lemmings into the rising seas caused by unchecked global warming.
The second school of thought, which is not discussed much in the circles frequented by the IPCC and its friends, takes the attitude that, well, if global warming's going to happen and we've got all this carbon dioxide in the air already, let's see what we can do to deal with the consequences. There are proposals to spray sulfur-dioxide particles in the air to produce global cooling that would counteract the global warming we are trying to avoid. And there are the thousand-and-one adaptations to whatever circumstances global warming will produce, from rising sea levels to changed weather patterns, which in the nature of things people would come up with one by one. If South Pacific islands slowly disappear and coastlines change, people aren't passive sheep. They won't just sit at the dinner table while the waters rise over their heads. They will move to higher ground, and complain, and the poorest will suffer the most in many cases, which is too bad. But global warming might not be the unqualified ill wind it is advertised by the IPCC to be. It might actually blow some good somewhere. This second school of thought takes a positive view of humanity's ingenuity and adaptability, which can turn what looks initially like a bad situation to advantage.
In case you haven't figured it out, I belong to the second school of thought. If indeed the leading climatologists at the University of East Anglia have, consciously or unconsciously, formed a kind of peer-review mafia to protect their own prominent political positions and resources at the cost of sacrificing scientific truth to personal advantage, well, that is too bad as well. But it wouldn't be the first time such a thing happened. Even if global warming is as bad as they say and they were simply doing wrong in a good cause, there are sound economic reasons to believe that the resources we should spend on global warming should not be so large as to seriously disrupt the world's economies, which are not in stellar shape right now anyway. Even if engineering got us into this fix, whatever it is, my view is that engineering, based on truth, as good engineering always must be, can get us out of it again.
Sources: A good summary article on the CRU email release appeared in the New York Times on Nov. 27, 2009 at http://www.nytimes.com/2009/11/28/science/earth/28hack.html. In my blog of Feb. 18, 2008 ("Should We Discount Global Warming?") I discussed some of the economic arguments relating to global warming.
Monday, November 30, 2009
Monday, November 23, 2009
Ethics: Evolved or Given?
Every now and then we take a look at ethics in general: what ethics is, how to think about it, and, although you don't have to figure this one out to do engineering ethics, where ethics comes from. Where you say ethics comes from depends on your philosophical presuppositions. People who think the physical universe is all there is will generally say something different about the origins of ethics than those who believe there is something beyond nature, that is, supernaturalists such as myself. But the surprising thing is, even researchers who take no account of supernatural explanations end up with a conclusion about the nature of ethics worldwide, that is surprisingly close to what believers in the supernatural claim.
Jonathan Haidt, a psychologist at the University of Virginia, has developed what he calls Moral Foundations Theory. It is based on data gathered from over 100,000 surveys of people all around the world, so you would have a hard time accusing Haidt of ethnocentrism. What he and his colleagues have found, is that our sense of right and wrong can be traced to one or more foundational principles or ideas that essentially all cultures he studied share in common. These principles are: (1) "Harm/care"—the ability to understand pain and other results of harm in others, and to empathize and care for them; (2) "Fairness/reciprocity"—the kind of thing that makes even three-year-olds scream, "That's not fair!!" in every language; (3) "Ingroup/loyalty"—the ability to identify with and sacrifice for a group one belongs to; (4) "Authority/respect"—the sense that legitimate authority and traditions should be obeyed; and (5) "Purity/sanctity"—the notion of sacred spaces and the purity of the human body. On his website (which contains basically all I know about his theory), Haidt traces each of these traits to an evolutionary root. The trait of purity/sanctity, for instance, which Catholic author Flannery O'Connor called "the most mysterious of the virtues," derives from the evolutionary psychology of "disgust and contamination."
The details of each foundational principle (or should I say foundational/principle?) are not as important as the fact that according to Haidt, they are shared universally among all cultures he has studied. This gives the lie to people who say that ethics is always relative to the specific culture, and what is right in one culture could just as easily, and logically, be wrong in another one. Details differ, of course. What passes for modest apparel in Tahiti would not pass muster in Times Square (not now, anyway), but the remarkable thing is that there really are universally shared moral mechanisms or tendencies at all. One would think that evolution would have come up with a splendid and contradictory variety of ethical notions, just as we see a tremendous variety of colors and shapes among birds or reptiles in different parts of the world.
For supernaturalists, this is no surprise. There is an old, somewhat battered, but nonetheless still vigorous concept called "natural law" which says, in a nutshell, the laws of morality are written on the heart of every person, and the Author is God. According to natural law, there are certain innate principles of morality that people know by nature, even if they later convince themselves otherwise for various, often self-serving, reasons. Just as Haidt has found, natural law says these basic principles are universal, though details can vary according to customs and cultures of different peoples. For example, the Christian tradition says a man can have only one wife at a time. Islam and some other religions allow four or more wives at once. But there is no culture anywhere (Margaret Mead notwithstanding) which says you may simply have any woman you like anytime. This is not to say that some people don't act that way; but if they do, they are going against the morality of their culture.
What difference does this make to engineering ethics? In one sense, very little, and in another sense, everything.
In the sense that engineering ethics deals with practical applications of generally accepted ethical principles to specific problems, the field is not that concerned with where the ethics come from—whether evolution or God. This is why engineering societies composed of people from many religions, or no religion, can nevertheless agree on certain basic codes of ethics to follow worldwide. Although bribery is a widespread practice, nearly everybody agrees that to live in a world without bribery would be better than to live with it. People who take and receive bribes make the excuse that they simply couldn't get things done otherwise. While that may be true in a particular case, it doesn't change the fact that a country or system without bribery is a better thing morally than one where you have to bribe people to get even legitimate things done.
On the other hand, if you ask yourself "Why be moral at all?" the origins of moral principles make all the difference in the world. Engineers often pride themselves on their ability to reason logically. If we are really just products of a blind evolutionary process that came from nowhere and leads nowhere—I don't know about you, but if I believed that, I would have trouble just getting out of bed in the morning, let alone devoting years of study to a profession that will produce only a transient gleam in the eternal void. A common alternative, according to mathematician and philosopher Blaise Pascal, is to distract oneself from the awful reality of death, and engineering is as good a distraction as any, for a while, anyway. But in this view, it's only a distraction.
Next time we'll examine some specific technical matter with an ethical angle to it, and life will go on. But every now and then, it's good to ask why right and wrong is there at all, and where it comes from.
Sources: I discovered the Moral Foundations Theory website from reading a piece by skeptic Michael Shermer in the December 2009 issue of Scientific American. The website is at www.moralfoundations.org.
Jonathan Haidt, a psychologist at the University of Virginia, has developed what he calls Moral Foundations Theory. It is based on data gathered from over 100,000 surveys of people all around the world, so you would have a hard time accusing Haidt of ethnocentrism. What he and his colleagues have found, is that our sense of right and wrong can be traced to one or more foundational principles or ideas that essentially all cultures he studied share in common. These principles are: (1) "Harm/care"—the ability to understand pain and other results of harm in others, and to empathize and care for them; (2) "Fairness/reciprocity"—the kind of thing that makes even three-year-olds scream, "That's not fair!!" in every language; (3) "Ingroup/loyalty"—the ability to identify with and sacrifice for a group one belongs to; (4) "Authority/respect"—the sense that legitimate authority and traditions should be obeyed; and (5) "Purity/sanctity"—the notion of sacred spaces and the purity of the human body. On his website (which contains basically all I know about his theory), Haidt traces each of these traits to an evolutionary root. The trait of purity/sanctity, for instance, which Catholic author Flannery O'Connor called "the most mysterious of the virtues," derives from the evolutionary psychology of "disgust and contamination."
The details of each foundational principle (or should I say foundational/principle?) are not as important as the fact that according to Haidt, they are shared universally among all cultures he has studied. This gives the lie to people who say that ethics is always relative to the specific culture, and what is right in one culture could just as easily, and logically, be wrong in another one. Details differ, of course. What passes for modest apparel in Tahiti would not pass muster in Times Square (not now, anyway), but the remarkable thing is that there really are universally shared moral mechanisms or tendencies at all. One would think that evolution would have come up with a splendid and contradictory variety of ethical notions, just as we see a tremendous variety of colors and shapes among birds or reptiles in different parts of the world.
For supernaturalists, this is no surprise. There is an old, somewhat battered, but nonetheless still vigorous concept called "natural law" which says, in a nutshell, the laws of morality are written on the heart of every person, and the Author is God. According to natural law, there are certain innate principles of morality that people know by nature, even if they later convince themselves otherwise for various, often self-serving, reasons. Just as Haidt has found, natural law says these basic principles are universal, though details can vary according to customs and cultures of different peoples. For example, the Christian tradition says a man can have only one wife at a time. Islam and some other religions allow four or more wives at once. But there is no culture anywhere (Margaret Mead notwithstanding) which says you may simply have any woman you like anytime. This is not to say that some people don't act that way; but if they do, they are going against the morality of their culture.
What difference does this make to engineering ethics? In one sense, very little, and in another sense, everything.
In the sense that engineering ethics deals with practical applications of generally accepted ethical principles to specific problems, the field is not that concerned with where the ethics come from—whether evolution or God. This is why engineering societies composed of people from many religions, or no religion, can nevertheless agree on certain basic codes of ethics to follow worldwide. Although bribery is a widespread practice, nearly everybody agrees that to live in a world without bribery would be better than to live with it. People who take and receive bribes make the excuse that they simply couldn't get things done otherwise. While that may be true in a particular case, it doesn't change the fact that a country or system without bribery is a better thing morally than one where you have to bribe people to get even legitimate things done.
On the other hand, if you ask yourself "Why be moral at all?" the origins of moral principles make all the difference in the world. Engineers often pride themselves on their ability to reason logically. If we are really just products of a blind evolutionary process that came from nowhere and leads nowhere—I don't know about you, but if I believed that, I would have trouble just getting out of bed in the morning, let alone devoting years of study to a profession that will produce only a transient gleam in the eternal void. A common alternative, according to mathematician and philosopher Blaise Pascal, is to distract oneself from the awful reality of death, and engineering is as good a distraction as any, for a while, anyway. But in this view, it's only a distraction.
Next time we'll examine some specific technical matter with an ethical angle to it, and life will go on. But every now and then, it's good to ask why right and wrong is there at all, and where it comes from.
Sources: I discovered the Moral Foundations Theory website from reading a piece by skeptic Michael Shermer in the December 2009 issue of Scientific American. The website is at www.moralfoundations.org.
Monday, November 16, 2009
Air Accidents In Perspective
A good fraction of classic engineering-ethics cases are concerned with accidents involving air transport of some kind, with commercial airline traffic taking the lead in terms of fatalities involving members of the public (as opposed to astronauts, for example). For example, in the early 1970s, problems with a DC-10 cargo door latch led to one near-fatal accident, halfhearted attempts to remedy the problem, and then a serious crash in France on Mar. 3, 1974, that killed 346 people. This case is held up to generations of engineers as an example of how not to fix a mechanical flaw in a life-critical system.
Although we have dealt with individual air accidents in this blog from time to time, before last Saturday I had never come across a book that takes a thoughtful, coherent look at the whole history of air accidents and the intriguing problems associated with investigating them. A small bookstore had opened a few months ago in what passes for downtown San Marcos, and I had a few minutes to poke around in it. (Small independent bookstores are going the way of the newspaper before the onslaught of the Internet, but that is a discussion for another time.) My attention was attracted by a striking photo of the French Concorde in flames as it left the ground, and after perusing David Owen's clear, unsensational prose inside, I concluded to buy Air Accident Investigation.
Owen, a former engineer turned journalist, has the disciplined rhetorical skills that one finds more often than not in good British writers. While not pretending to write an exhaustive history, he does start with the early days of commercial aviation, with an even-handed treatment of both U. S. and European practice. I was intrigued by a photo of what has to have been one of the largest biplanes ever built, a Handley Page H. P. 42 flown by Imperial Airways in trans-Channel service in the early 1930s. It was about four stories high and had four engines clustered around the fuselage. Owen's point in including it was that although there were plenty of accidents back then, early commerical aviation was operated so conservatively that in ten years of use, the H. P. 42 never lost a passenger to a fatal accident.
All this changed after World War II, when jet aviation and economic growth transformed the flying public from a few privileged individuals into hordes of airborne bus passengers. Higher speeds and long over-water flights raised the cost of in-flight mechanical failure to the point that surviving a commercial airline crash was a dubious proposition at best.
Most of Owen's examples date from the period of about 1953 to 1990, and are organized by the type of accident: mechanical failure, weather-related, pilot error, and finally terrorism. One theme that emerged out of the dozens of individual tales of smooth takeoffs followed by unexpected tragedies is the role of metal fatigue in airline safety, or lack thereof. It was metal fatigue, poorly understood at the time, that caused the terrible series of accidents to the first British jetliner, the de Havilland Comet, in the early 1950s. And right up to the 1990s, fatigue continues to exact a toll on airliners, their designers, and maintenance personnel who fail to exercise the utmost diligence in checking for and combating this all-too-common problem. I came away with the strong impression that a modern airliner is a kind of chessboard showing the long history of how human ingenuity can checkmate aluminum's tendency to crack under repeated stress caused by the thousands of takeoffs, flights, and landings in a plane's useful service lifetime. Owen points out that although there is no fixed "retirement age" for airframes, the problem of so-called geriatric aircraft will only increase as the industry's fleet ages.
Another factor that is familiar to those who have read a number of engineering-ethics cases is the way that serious accidents have of coalescing from a number of relatively independent small mistakes, each of which if taken in isolation doesn't seem that serious. The investigation of a runway accident between two 747s on the island of Tenerife in the Canaries in 1977 revealed a chain of problems beginning with a terrorist bomb that shut down a better-equipped airport nearby, and ended with fortuitous radio interference during the last control-tower message that could have conceivably avoided the accident. As a result, one 747 trying to take off collided with another on the ground, killing over 500 people in all. This emphasizes the importance of keeping track of the "near-miss" kind of error which could have resulted in fatalities, but didn't simply because other factors were not also wrongly aligned at the time. Good engineering practice is to establish a system for reporting such incidents and making sure that even mildly dangerous problems do not arise in the future.
The book is illustrated with helpful original diagrams that clarify the often complex situations involved in many accidents. Owen's engineering background gives him a confident familiarity with the technical aspects of aviation, but he always makes sure that the essential details are clear enough for the reasonably intelligent reader to follow. Add to this the inherent suspense of reading about unexpected death and destruction, and how investigators painstakingly piece together evidence (sometimes quite literally) after a crash, and you have a book that is both a valuable addition to the engineering ethics literature, and a fascinating read as well. Which is, frankly, an unusual combination, although it need not be.
Owen's book is still in print (in fact, it's in its third edition), so I would highly recommend it for anyone interested in the technology of aviation or the drama of accident investigations. Notably, the rate of serious accidents has fallen off in the last decade or two, largely because jet aviation is now a mature technology. Many of the major ways aircraft and air transportation systems can fail are pretty well known by now and avoidable. We can only hope that, in spite of terrorism and war, air travel safety keeps improving to the point that major air disasters will recede into the distant past.
Sources: David Owen's Air Accident Investigation (3rd edition, 2006) is published by Haynes Publishing, Somerset, England (ISBN 9978 1 85260 614 5).
Although we have dealt with individual air accidents in this blog from time to time, before last Saturday I had never come across a book that takes a thoughtful, coherent look at the whole history of air accidents and the intriguing problems associated with investigating them. A small bookstore had opened a few months ago in what passes for downtown San Marcos, and I had a few minutes to poke around in it. (Small independent bookstores are going the way of the newspaper before the onslaught of the Internet, but that is a discussion for another time.) My attention was attracted by a striking photo of the French Concorde in flames as it left the ground, and after perusing David Owen's clear, unsensational prose inside, I concluded to buy Air Accident Investigation.
Owen, a former engineer turned journalist, has the disciplined rhetorical skills that one finds more often than not in good British writers. While not pretending to write an exhaustive history, he does start with the early days of commercial aviation, with an even-handed treatment of both U. S. and European practice. I was intrigued by a photo of what has to have been one of the largest biplanes ever built, a Handley Page H. P. 42 flown by Imperial Airways in trans-Channel service in the early 1930s. It was about four stories high and had four engines clustered around the fuselage. Owen's point in including it was that although there were plenty of accidents back then, early commerical aviation was operated so conservatively that in ten years of use, the H. P. 42 never lost a passenger to a fatal accident.
All this changed after World War II, when jet aviation and economic growth transformed the flying public from a few privileged individuals into hordes of airborne bus passengers. Higher speeds and long over-water flights raised the cost of in-flight mechanical failure to the point that surviving a commercial airline crash was a dubious proposition at best.
Most of Owen's examples date from the period of about 1953 to 1990, and are organized by the type of accident: mechanical failure, weather-related, pilot error, and finally terrorism. One theme that emerged out of the dozens of individual tales of smooth takeoffs followed by unexpected tragedies is the role of metal fatigue in airline safety, or lack thereof. It was metal fatigue, poorly understood at the time, that caused the terrible series of accidents to the first British jetliner, the de Havilland Comet, in the early 1950s. And right up to the 1990s, fatigue continues to exact a toll on airliners, their designers, and maintenance personnel who fail to exercise the utmost diligence in checking for and combating this all-too-common problem. I came away with the strong impression that a modern airliner is a kind of chessboard showing the long history of how human ingenuity can checkmate aluminum's tendency to crack under repeated stress caused by the thousands of takeoffs, flights, and landings in a plane's useful service lifetime. Owen points out that although there is no fixed "retirement age" for airframes, the problem of so-called geriatric aircraft will only increase as the industry's fleet ages.
Another factor that is familiar to those who have read a number of engineering-ethics cases is the way that serious accidents have of coalescing from a number of relatively independent small mistakes, each of which if taken in isolation doesn't seem that serious. The investigation of a runway accident between two 747s on the island of Tenerife in the Canaries in 1977 revealed a chain of problems beginning with a terrorist bomb that shut down a better-equipped airport nearby, and ended with fortuitous radio interference during the last control-tower message that could have conceivably avoided the accident. As a result, one 747 trying to take off collided with another on the ground, killing over 500 people in all. This emphasizes the importance of keeping track of the "near-miss" kind of error which could have resulted in fatalities, but didn't simply because other factors were not also wrongly aligned at the time. Good engineering practice is to establish a system for reporting such incidents and making sure that even mildly dangerous problems do not arise in the future.
The book is illustrated with helpful original diagrams that clarify the often complex situations involved in many accidents. Owen's engineering background gives him a confident familiarity with the technical aspects of aviation, but he always makes sure that the essential details are clear enough for the reasonably intelligent reader to follow. Add to this the inherent suspense of reading about unexpected death and destruction, and how investigators painstakingly piece together evidence (sometimes quite literally) after a crash, and you have a book that is both a valuable addition to the engineering ethics literature, and a fascinating read as well. Which is, frankly, an unusual combination, although it need not be.
Owen's book is still in print (in fact, it's in its third edition), so I would highly recommend it for anyone interested in the technology of aviation or the drama of accident investigations. Notably, the rate of serious accidents has fallen off in the last decade or two, largely because jet aviation is now a mature technology. Many of the major ways aircraft and air transportation systems can fail are pretty well known by now and avoidable. We can only hope that, in spite of terrorism and war, air travel safety keeps improving to the point that major air disasters will recede into the distant past.
Sources: David Owen's Air Accident Investigation (3rd edition, 2006) is published by Haynes Publishing, Somerset, England (ISBN 9978 1 85260 614 5).
Monday, November 09, 2009
To Patent or Not To Patent: Supreme Court to Judge
Most historians recognize the development of the legal framework of patents as an important, if not essential, part of the Industrial Revolution. The proper function of patents and patent law can perhaps be understood best by considering two extremes.
For most of history, the world was at one extreme: no patents or patent law at all. If a clever inventor came up with a new way of doing something or building a useful device, he had to keep it secret in order to maintain the competitive advantage his invention provided for him. Because if the goldsmith or millwright next door found out how the invention worked, the original inventor had no legal way to stop the imitator from using his invention. Consequently, processes and techniques were handed down from father to son or closely held in small guilds whose members were sworn to secrecy. And the pace of technological development during much of this time was consequently slow.
Now suppose we have a patent law, but instead of providing a limited-term monopoly to the inventor of twenty years (in current law), suppose it provided protection in perpetuity. Once somebody invented something, no one else could ever use that invention without the inventor's permission. Paradoxically, this opposite extreme would land us in a situation not too different from the one that prevailed before there were any patents at all. More information would be available, but you couldn't use it legally. Or at best, people would spend most of their inventive time and energy trying to get around the ever-growing forest of issued patents, rather than simply concentrating on inventing new stuff that the market needed.
In the last few decades, the situation in U. S. patent law has moved closer to the extreme of perpetual patents on anything—not so much in terms of the time limits on patents, but in terms of what can be patented. Unfortunately, the effect is much the same. If you can do one little tweak on someone else's patented idea and get a patent on it yourself, the situation is ripe for exploitation by patent lawyers and general confusion. By many accounts, that is more or less the state we're in today. Given enough money, I'm pretty sure you can patent anything these days, whether it's been around for decades or not, because the patent office has tended to neglect its former duty to make sure that inventions are original and worthy of patent protection. Although I haven't checked this to be sure, there is the legendary patent on a way a child swings in a yard swing. If this patent really exists, thousands of kids all across America unconsciously risk falling afoul of the patent laws every time they head for the playground.
Today (Nov. 9) the U. S. Supreme Court is scheduled to hear their first patent case pertaining to the scope of the patent laws in many years. At issue is more than a single patent decision, although a patent claimed by businessmen Bernard Bilski and Rand Warsaw having to do with energy-price trading started the ball rolling. In a 2008 decision by the Federal Circuit (a special court that tries appeals of patent cases), Chief Judge Michel radically restricted his court's earlier generous interpretation of the kinds of things that can be patented. The rule he proclaimed says that a patentable process can only be issued if it is related to a "particular machine or apparatus" or transforms an article into "a different state or thing." If carried to its logical conclusion, this decision could invalidate or cast into question thousands of esxisting patents on business methods, software, diagnostic techniques, and many other technologies. A blogger at the intellectual-property website ipwatch.com excoriated Judge Michel for going way beyond the matter at issue, since whatever the Federal Circuit says about patents is the last word unless the Supreme Court says otherwise.
Sudden invalidation of a lot of patents would certainly be disruptive, especially at a time when the technology industry is not doing that well financially. Many high-tech companies are watching this case closely for that reason. The hope is that the Supreme Court will correct what many people perceive as a blunder on the part of the Federal Circuit, but how far they go in correcting the earlier decision could have important implications for the future of patent law in the U. S.
Patent law is a creature of the legislative branch, not the judicial branch, and perhaps all this attention will lead Congress to revisit the state of patent law with a view toward streamlining and modernizing the system. One practical problem that has led to the flood of dubious patents in recent years is the fact that the Patent Office is grossly understaffed. The sense is that rather than give patents the attention they need at the price of taking many years to issue a patent, the Office simply does something close to rubber-stamping in a matter of two years or less. Another problem is that two years is still only a little less than eternity in some businesses such as software, where entire generations of products rise and fall in a matter of months. But Congress is busily engaged on other matters for the time being.
The Supreme Court will take some months to decide this case, so we look forward to revisiting it in the spring, by which time a lot of things will look better, I hope.
Sources: I used material from the following websites: http://www.huffingtonpost.com/2009/11/08/supreme-court-to-hear-key_n_349964.html (the Huffington Post is not something I routinely visit, but showed up first on a Google search—I don't recommend it for general viewing!), http://www.ipwatchdog.com/2009/11/09/argument-day-in-bilski-at-us-supreme-court/id=7209/, and http://online.wsj.com/article/SB10001424052748704328104574517882062296034.html?mod=googlenews_wsj.
For most of history, the world was at one extreme: no patents or patent law at all. If a clever inventor came up with a new way of doing something or building a useful device, he had to keep it secret in order to maintain the competitive advantage his invention provided for him. Because if the goldsmith or millwright next door found out how the invention worked, the original inventor had no legal way to stop the imitator from using his invention. Consequently, processes and techniques were handed down from father to son or closely held in small guilds whose members were sworn to secrecy. And the pace of technological development during much of this time was consequently slow.
Now suppose we have a patent law, but instead of providing a limited-term monopoly to the inventor of twenty years (in current law), suppose it provided protection in perpetuity. Once somebody invented something, no one else could ever use that invention without the inventor's permission. Paradoxically, this opposite extreme would land us in a situation not too different from the one that prevailed before there were any patents at all. More information would be available, but you couldn't use it legally. Or at best, people would spend most of their inventive time and energy trying to get around the ever-growing forest of issued patents, rather than simply concentrating on inventing new stuff that the market needed.
In the last few decades, the situation in U. S. patent law has moved closer to the extreme of perpetual patents on anything—not so much in terms of the time limits on patents, but in terms of what can be patented. Unfortunately, the effect is much the same. If you can do one little tweak on someone else's patented idea and get a patent on it yourself, the situation is ripe for exploitation by patent lawyers and general confusion. By many accounts, that is more or less the state we're in today. Given enough money, I'm pretty sure you can patent anything these days, whether it's been around for decades or not, because the patent office has tended to neglect its former duty to make sure that inventions are original and worthy of patent protection. Although I haven't checked this to be sure, there is the legendary patent on a way a child swings in a yard swing. If this patent really exists, thousands of kids all across America unconsciously risk falling afoul of the patent laws every time they head for the playground.
Today (Nov. 9) the U. S. Supreme Court is scheduled to hear their first patent case pertaining to the scope of the patent laws in many years. At issue is more than a single patent decision, although a patent claimed by businessmen Bernard Bilski and Rand Warsaw having to do with energy-price trading started the ball rolling. In a 2008 decision by the Federal Circuit (a special court that tries appeals of patent cases), Chief Judge Michel radically restricted his court's earlier generous interpretation of the kinds of things that can be patented. The rule he proclaimed says that a patentable process can only be issued if it is related to a "particular machine or apparatus" or transforms an article into "a different state or thing." If carried to its logical conclusion, this decision could invalidate or cast into question thousands of esxisting patents on business methods, software, diagnostic techniques, and many other technologies. A blogger at the intellectual-property website ipwatch.com excoriated Judge Michel for going way beyond the matter at issue, since whatever the Federal Circuit says about patents is the last word unless the Supreme Court says otherwise.
Sudden invalidation of a lot of patents would certainly be disruptive, especially at a time when the technology industry is not doing that well financially. Many high-tech companies are watching this case closely for that reason. The hope is that the Supreme Court will correct what many people perceive as a blunder on the part of the Federal Circuit, but how far they go in correcting the earlier decision could have important implications for the future of patent law in the U. S.
Patent law is a creature of the legislative branch, not the judicial branch, and perhaps all this attention will lead Congress to revisit the state of patent law with a view toward streamlining and modernizing the system. One practical problem that has led to the flood of dubious patents in recent years is the fact that the Patent Office is grossly understaffed. The sense is that rather than give patents the attention they need at the price of taking many years to issue a patent, the Office simply does something close to rubber-stamping in a matter of two years or less. Another problem is that two years is still only a little less than eternity in some businesses such as software, where entire generations of products rise and fall in a matter of months. But Congress is busily engaged on other matters for the time being.
The Supreme Court will take some months to decide this case, so we look forward to revisiting it in the spring, by which time a lot of things will look better, I hope.
Sources: I used material from the following websites: http://www.huffingtonpost.com/2009/11/08/supreme-court-to-hear-key_n_349964.html (the Huffington Post is not something I routinely visit, but showed up first on a Google search—I don't recommend it for general viewing!), http://www.ipwatchdog.com/2009/11/09/argument-day-in-bilski-at-us-supreme-court/id=7209/, and http://online.wsj.com/article/SB10001424052748704328104574517882062296034.html?mod=googlenews_wsj.
Monday, November 02, 2009
Toxic Drywall: All the Housing Market Needs
As if Florida homeowners didn't have enough to worry about already since many of them are "under water" financially, a recent report I heard on National Public Radio revealed that many thousands of houses in Florida and at least six other states may have been built with toxic drywall imported from China. People living in these houses have reported many kinds of health problems, ranging from acute sinus infections to nosebleeds and insomnia. Besides the health hazards, anything made of copper in these houses tends to turn black and often fails. Think wiring, plumbing, and air conditioning coils. How can something like this happen, and what can be done about it?
The "how" is fairly easy to answer, at least in general terms. Drywall is a sandwich made of cardboard surfaces on either side of a core made of partly dehydrated calcium sulfate, otherwise known as gypsum. Although there are places where you can mine gypsum, increasingly the material is obtained from flue-gas desulfurization plants associated with coal-fired power generation. Coal with a lot of sulfur in it releases the sulfur when it's burned, and if you don't de-sulfurize the flue gas that results, you get a terrible air pollution problem. Scrubbers can capture the sulfur, but the byproduct is a lot of sulfate stuff which can be purified into calcium sulfate by processes I have no clue about, not being a chemist.
But I can easily imagine that if someone who wanted to profit from the hot market in drywall caused by the building boom earlier in this decade got careless about converting impure flue-gas-derived gypsum to calcium sulfate suitable for making drywall, they might accidentally leave in some chemicals (such as iron sulfide in an acidic matrix) that, upon getting moist, would release hydrogen sulfide. And hydrogen sulfide is very nasty stuff. Its toxicity is comparable to hydrogen cyanide, which is what California used to use in it gas chamber for executions. Nobody wants to live in a gas chamber.
Something like this apparently happened in China when a good amount of Chinese drywall was imported to the U. S. and used in several states to build houses. If this hypothesis is correct, the first place you'd expect to hear about problems is where the average humidity is highest, and that's Florida. Sure enough, as long ago as 2004 complaints began to emerge in that state about weird rotten-egg odors, blackened and failing copper air-conditioner tubing, and wiring faults. Although the Environmental Protection Agency has reportedly investigated the problem, their findings are "not conclusive," so any redress from the government will be delayed if it arrives at all.
That's probably how it happened; now, what to do?
The parties involved are: the Chinese manufacturers of the defective drywall, the importing and marketing firms that sold the stuff in the U. S., the builders who used it to build houses, the homeowners who live in these houses, the financial institutions holding mortgages on the houses, the insurance companies insuring the houses, and various governmental regulatory agencies whose responsibilities touch on a problem like this. Already you can see the legal tangles just waiting to happen. Because of the lack of recourse many homeowners have run up against, someone has organized a Chinese Drywall Complaint Center that acts as a clearinghouse for information and news on the problem. Misery may love company, but that doesn't get rid of the toxic drywall.
This is an example of how a novel problem can take longer to solve than one we've dealt with before. As far as I know, the only similar situation involved polyurethane insulation that emitted formaldehyde gas or other toxic materials. Formaldehyde is not something you want to smell a lot of either, but it's not nearly as toxic as hydrogen sulfide. And it doesn't leave physical traces behind like blackened pipes and wiring. Another complicating factor is that the defect doesn't show up immediately. Evidently months or years of exposure to high humidity brings out the problem, and so builders who bought the defective drywall and installed it promptly can legitimately claim they had no idea it would do this. On the other hand, if the stuff fell off the ceiling as soon as they put it in, they would have known something was wrong immediately. So there is the time-bomb aspect to the situation as well.
Any time an international border appears between the perpetrators of a wrong and the victims, things are more complicated than otherwise, and that is the case here as well. Probably some rough justice will happen as the next importer of Chinese drywall finds that their market has disappeared, but that is unfair to the Chinese drywall manufacturers who are doing things right, assuming there are some. Unfortunately, in the rather xenophobic United States, most people think of China in simplistic terms and don't consider that it's at least as complicated as the U. S., if not more. But the Wild-West aspect of China's economy makes it hard for its government to enforce any kind of uniform regulations or safety codes, with the result that a few grossly negligent firms can put lead paint on children's toys, or melamine plastic in pet food, or hydrogen-sulfide-emitting compounds in drywall and get away with it, at least until the newshounds get involved. And then the whole country gets a black eye that only a minority of companies deserve.
As for the consumers who are stuck with toxic drywall, they still have few recourses. Not enough is known about the problem even to recommend a remediation strategy. It's pretty clear that tearing out all the old drywall in a house and putting in new non-toxic wallboard would probably cost more than tearing down the whole place and rebuilding from scratch. So insurance companies, builders, and even the government agencies involved are reluctant to pay for or recommend such an extreme course. What may happen is that people will simply walk away from such houses, many of which are underwater anyway, and take the consequences. Which won't help the banks any.
In the meantime, if you're looking to buy a cheap foreclosed home, take a look at the copper fixtures in it first. If you see any black corrosion, it's probably not a bargain after all.
Sources: Text relating to the NPR report on this subject is available at http://www.npr.org/templates/story/story.php?storyId=114182073&ps=cprs. As long ago as last March, Time Magazine posted an online article on the subject at http://www.time.com/time/nation/article/0,8599,1887059,00.html. The Chinese Drywall Complaint Center website is Http://ChineseDrywallComplaintCenter.Com/. I also used material from the Wikipedia articles on drywall and hydrogen sulfide.
The "how" is fairly easy to answer, at least in general terms. Drywall is a sandwich made of cardboard surfaces on either side of a core made of partly dehydrated calcium sulfate, otherwise known as gypsum. Although there are places where you can mine gypsum, increasingly the material is obtained from flue-gas desulfurization plants associated with coal-fired power generation. Coal with a lot of sulfur in it releases the sulfur when it's burned, and if you don't de-sulfurize the flue gas that results, you get a terrible air pollution problem. Scrubbers can capture the sulfur, but the byproduct is a lot of sulfate stuff which can be purified into calcium sulfate by processes I have no clue about, not being a chemist.
But I can easily imagine that if someone who wanted to profit from the hot market in drywall caused by the building boom earlier in this decade got careless about converting impure flue-gas-derived gypsum to calcium sulfate suitable for making drywall, they might accidentally leave in some chemicals (such as iron sulfide in an acidic matrix) that, upon getting moist, would release hydrogen sulfide. And hydrogen sulfide is very nasty stuff. Its toxicity is comparable to hydrogen cyanide, which is what California used to use in it gas chamber for executions. Nobody wants to live in a gas chamber.
Something like this apparently happened in China when a good amount of Chinese drywall was imported to the U. S. and used in several states to build houses. If this hypothesis is correct, the first place you'd expect to hear about problems is where the average humidity is highest, and that's Florida. Sure enough, as long ago as 2004 complaints began to emerge in that state about weird rotten-egg odors, blackened and failing copper air-conditioner tubing, and wiring faults. Although the Environmental Protection Agency has reportedly investigated the problem, their findings are "not conclusive," so any redress from the government will be delayed if it arrives at all.
That's probably how it happened; now, what to do?
The parties involved are: the Chinese manufacturers of the defective drywall, the importing and marketing firms that sold the stuff in the U. S., the builders who used it to build houses, the homeowners who live in these houses, the financial institutions holding mortgages on the houses, the insurance companies insuring the houses, and various governmental regulatory agencies whose responsibilities touch on a problem like this. Already you can see the legal tangles just waiting to happen. Because of the lack of recourse many homeowners have run up against, someone has organized a Chinese Drywall Complaint Center that acts as a clearinghouse for information and news on the problem. Misery may love company, but that doesn't get rid of the toxic drywall.
This is an example of how a novel problem can take longer to solve than one we've dealt with before. As far as I know, the only similar situation involved polyurethane insulation that emitted formaldehyde gas or other toxic materials. Formaldehyde is not something you want to smell a lot of either, but it's not nearly as toxic as hydrogen sulfide. And it doesn't leave physical traces behind like blackened pipes and wiring. Another complicating factor is that the defect doesn't show up immediately. Evidently months or years of exposure to high humidity brings out the problem, and so builders who bought the defective drywall and installed it promptly can legitimately claim they had no idea it would do this. On the other hand, if the stuff fell off the ceiling as soon as they put it in, they would have known something was wrong immediately. So there is the time-bomb aspect to the situation as well.
Any time an international border appears between the perpetrators of a wrong and the victims, things are more complicated than otherwise, and that is the case here as well. Probably some rough justice will happen as the next importer of Chinese drywall finds that their market has disappeared, but that is unfair to the Chinese drywall manufacturers who are doing things right, assuming there are some. Unfortunately, in the rather xenophobic United States, most people think of China in simplistic terms and don't consider that it's at least as complicated as the U. S., if not more. But the Wild-West aspect of China's economy makes it hard for its government to enforce any kind of uniform regulations or safety codes, with the result that a few grossly negligent firms can put lead paint on children's toys, or melamine plastic in pet food, or hydrogen-sulfide-emitting compounds in drywall and get away with it, at least until the newshounds get involved. And then the whole country gets a black eye that only a minority of companies deserve.
As for the consumers who are stuck with toxic drywall, they still have few recourses. Not enough is known about the problem even to recommend a remediation strategy. It's pretty clear that tearing out all the old drywall in a house and putting in new non-toxic wallboard would probably cost more than tearing down the whole place and rebuilding from scratch. So insurance companies, builders, and even the government agencies involved are reluctant to pay for or recommend such an extreme course. What may happen is that people will simply walk away from such houses, many of which are underwater anyway, and take the consequences. Which won't help the banks any.
In the meantime, if you're looking to buy a cheap foreclosed home, take a look at the copper fixtures in it first. If you see any black corrosion, it's probably not a bargain after all.
Sources: Text relating to the NPR report on this subject is available at http://www.npr.org/templates/story/story.php?storyId=114182073&ps=cprs. As long ago as last March, Time Magazine posted an online article on the subject at http://www.time.com/time/nation/article/0,8599,1887059,00.html. The Chinese Drywall Complaint Center website is Http://ChineseDrywallComplaintCenter.Com/. I also used material from the Wikipedia articles on drywall and hydrogen sulfide.
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