Monthly Archives: June 2008

Law Review Issue on Nonobviousness

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The summer 2008 issue of the Lewis & Clark (Vol 12, No. 2) Law Review is dedicated to the matter of nonobviousness in patent law- Business Law Forum: Nonobviousness — The Shape of Things to Come.

The papers are scholarly articles and are very densely written (sorta like some posts in this blog!!). But if you can tolerate that style or are an insomniac, some of the work seems to be worth plowing through.

Nonobviousness is one of the most vexing aspects of patent law. I find that my natural inclinations about what constitutes obviousness are completely inapplicable to patents. Perhaps one day I’ll get it.

Secular Marriage. Gaussling’s 8th Epistle to the Bohemians.

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Below is a comment that I left on the Volokh Conspiracy some time ago. Rather than squander perfectly good ramblings there, I have reproduced it here and attached a link.  Th’ Gaussling

Broadly, we have two kinds of marriage in the USA. One is before a god and the other is before the state. Marriage before a god is a supernatural arrangement that is beyond the scope of this letter.

It would seem that the states compelling interest in marriage is mostly confined to the disposition of debts, assets, and minor children during the marriage and in the event the marriage fails. Married partners have an obligation to the welfare of minor children born to them or adopted. Married partners also have a status that allows for decision-making in critical care situations. It seems to be a kind of partnership whereupon responsibility for the secular aspects of married life are defined. After all, the state is called in to make decisions as to the disposition of civil matters in the event of a divorce. Surely the state can clearly define certain basic responsibilities and privileges in advance.

The moral/spiritual aspects of marriage “can” be interpreted as being perpendicular or orthogonal (like the x and y axes in a graph) to the legal dimension of property rights and other secular aspects of married partners. The state is without supernatural powers, thankfully, so it is inherently impotent in the spiritual dimension. If that is the case, and in the absence of a uniform interpretation of supernatural governance, it should be silent on spiritual matters.

The state should have no interest in how married partners conduct their lawful affairs beyond the normal confines of civil and criminal law.

A code defining the responsibilities of married partners in a variety of configurations could be modeled easily. If you accept the premise that secular marriage is confined to the mundane matters that are already contestable in a court, then it is a simple matter to imagine same sex or plural marriages under the same constraints. What is the compelling interest of the state in barring same sex partners from having automatic authority in giving comfort to a dying partner? We already have codes regulating many other kinds of complex relationships between people- corporations, partnerships, LLC’s, government, etc. Minimally, the state should entertain the prospect of recognizing limited entry of some new definitions of marriage to adult parties wanting to be responsible members of society with the rights and responsibilities thereto appertaining.

Verbund Manufacturing

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German manufacturing culture does many things very well, but a few things particularly stand out. One of these items pertains to the concept of verbund manufacturing. Verbund simply means “integrated” or “linked”. Verbund manufacturing sites are clusters of manufacturing units that take advantage of proximity. Clustering can offer certain logistic and energy advantages if done intelligently.

A cluster of manufacturing sites can operate and share a co-generation plant for the distribution of steam, waste heat, and electricity. Large capital items like steam plants can be shared so funds can be plowed into larger scale for better economy. Rail operations and other transportation resources can be shared as well. Clustering also provides for the possibility of vertically integrated manufacturing on site and a reduction in transportation costs.

Clustered manufacturing may also have the effect of concentrating the supply of skilled workers for the labor pool. A manufacturing nexus can attract community colleges and other vocational opportunities for the next generation of employees.

The USA has many manufacturing sites where similar industries congregate. Look at the Gulf coast with all of the refinery locations. But the extent to which there are synergistic interactions between companies is unclear.

In the US, corporations tend to behave as the Republic of Exxon or the Republic of the Union Pacific. This kind of a fragmented confederation of corporate states is becoming obsolete as we go up against nationalized business entities that control key resources and trade. The key to future vitality is greater efficiency with resources. Synergistic cooperation is one model that is available. But to do this requires trust and the desire to cooperate for mutual benefit. Competition begets gamesmanship and posturing which works against the verbund model for US businesses.

US corporations have much to learn from this business model.

Good Stink, Bad Stink, and Weird Stink

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There is tempest in a teapot brewing in regard to the chemical safety of shower curtains. It seems that someone got curious about the composition of the “new shower curtain smell”.  The alert has sounded and the troops are scrambling to general quarters. A lurking menace in the bathroom hangs there unnoticed, quietly off-gassing a cruel industrial bouquet of death vapors.

A Google survey of the issue turns up quite a number of hits, all reporting the same meager bowl of gruel. Over 100 toxic chemicals have been detected in the fragrance, they say. It would be interesting to see the actual data.

OK. This is the feedback that the manufacturer needs to reformulate the composition of their product. PVC is extremely useful in manufacturing. But the deal with the devil you have to make if you want durable and flexible PVC is the incorporation of plasticizers. The PVC industry has steadfastly outlived many predictions of its demise. It will outlive this toxic curtain episode as well. However, they will have to address this matter of odor in their products, hazardous or not.

I smell opportunity for manufacturers of other polymers to step in and exploit the fear and loathing over PVC curtains.

It may be foolish to offer an opinion here, but it seems to me that the population at greatest risk are the factory and warehouse workers.  They face potentially chronic occupational exposure.

REACH!!

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From June 1 to November 30, 2008, manufacturers have the opportunity to register under REACH, the EU program of Registration, Evaluation, and Authorization of Chemicals. Failure to do so may result in having a product banned from the EU. So says Joe Acker, president of the Synthetic Organic Chemicals Manufacturers Association (SOCMA), according to the latest issue of ICIS Chemical Business (June 2-8, 2008, pp 14-15).

Non-EU chemical manufacturers have been slow to realize the effect of REACH regulations.  According to the ICIS article, Acker explains that 8,000 to 10,000 chemicals now sold into the EU may be pulled back. The reason is that many low profit specialty products will be discontinued owing to the expense of registration and manpower needed to manage compliance. 

EU manufacturers are facing the grim prospect of yet more regulatory compliance expense added to their portfolio of products.  This kind of expense only reduces competitiveness for EU manufacturers.

Suppliers who elect to discontinue supply of specialty products will leave users of these materials in need of a new supply or face the shutdown of the end use.

To add to the pain, REACH authorizes the European Chemicals Agency (ECHA) to charge for registration, updates, appeals, and most maddeningly, charge an extra fee for confidential disclosures.

My lament here is not that I am hoping for a chinese night market of chemical sales to the EU. My lament is that REACH seems likely to accelerate the chemical deindustrialization of the EU. The uptick in petrochemical raw material costs unfortunately coincides with the startup of REACH and the paper storm that it will cause. It is very bad timing.

Let’s get some new archetypes and paradigms. Please?

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I viewed the new version of The Andromeda Strain recently. The miniseries is directed by brothers Ridley and Tony Scott and was broadcast on A&E. I really like and respect Michael Crichton for the book and the original movie was quite good. And, Ridley Scott is one of my favorite directors.

But this remake is a problem. The production value is excellent and the cinematography is quite inspired in a few places. I couldn’t do better than Ridley Scott, so who am I to complain? But there is the rub. While it is technically competent and visually stimulating, the storyline is a bit … well, I’ll just say it … overwrought. The updated storyline is just too bloody complex. Too many little cul-de-sacs and backstories to keep track of. It has that same manic, runaway train feel as ER. Just like Crichton’s most recent books. I can’t finish them.

Part of the problem with much of contemporary movie making is the persistance of formulaic and over used themes. Tired, threadbare archetypes of reluctant heroes, corrupt politicians, and busty nubiles who are handy with martial arts and firearms. I enjoy watching Angelina Jolie spraying machine gun fire as much as the next guy, but enough! Lets move on to something new.

Which brings me to the latest Indiana Jones movie. This movie proves that even George Lucas is subject to the Peter Principle. The storyline is a patchwork of whatever few baby-boomer oriented euphamisms that haven’t already been hijacked by the trolls at Industrial Light and Magic. It’s a contrived piece of cinema that was apparently designed by MBA’s and industrial psychologists to extract money from your debit card. (But I did enjoy some Milk Duds during the show.)

For Gawd sakes, George, go out back and dig up some of that money you have buried in the back yard and buy a better script next time.

“60 Minutes” and Dust Explosions

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Sunday evening on 60 Minutes on CBS there was a segment on dust explosions. For the most part, it was an expose on the failings of OSHA. It is hard to avoid the conclusion that OSHA is lead by a bunch of dullards who are under the enchantment of an administration reluctant to impose new regulations on industry.

The thrust of the program was that OSHA is completely unable to recognize incipient dust hazards on their site inspections, partly due to a lack of training and partly due to a slack-jawed lack of direction.  It wasn’t pretty.

As a dramatic backdrop, numerous instances of major plant explosions were trotted out for all to see. The message is that plants keep blowing up from dust explosions, but OSHA isn’t holding companies to higher standards- because there aren’t any.  The Secretary cited OSHA’s housekeeping requirement as broad enough to cover the dust explosion scenario. It was less than convincing.

I couldn’t help but notice that the subtext was that there can only be safety if more regulations were written. I didn’t see any company officials grilled in the same manner that the Secretary was grilled.

In fairness to OSHA, someone needed to clarify just what that agency is free to do in regard to rule making and what must be done by the Congress.  I know there are smart people in OSHA, but being federal employees, there is little incentive to champion new regulations. Between institutional inertia, lobbyists, and an antagonistic executive branch, who wants to charge ahead of the parade on new rules?

 

Friday’s assorted scribblings

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Crimony. There was a new coat of snow on the mountains yesterday down to the 9 or 10 thousand foot level.

I’m living the Chinese curse “May you live in interesting times”.  The good thing about my job is that I get to wear a lot of hats. The bad thing is that I get to wear a lot of hats.

Reunite Gondwana! 

 

Chemists and Engineers

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What would happen to innovation in chemical technology if we had a more intimate comingling of chemistry and the engineering sciences?  What effect would there be on the stream of chemists graduating into the world if more schools had a chemical engineer on the chemistry faculty? Could a single engineer on the faculty actually make a difference in altering the direction of the boat a few degrees?

Why is such a change desirable? One way to change the trend of deindustrialization and economic repositioning of manufacturing out of North America is to stimulate innovation in the industrial sciences. To do this we can rely on business leaders individually to formulate strategic plans to upgrade plants and processes by way of step changes in technology. But for business leaders, the calculation for such a change must also take into account the alternative of moving production to another country. Many times it is easier and faster to move production to China rather than taking a gamble on the invention of better technology. A large amount of pharmaceutical manufacturing has been shifted to China, Mexico, and India for this very reason.

To rely on business leaders (top down) to ramp up innovation really means that one is relying on the market. While letting the marketplace drive the economics and distribution of manufacturing has a certain appeal to purists, the global marketplace is highly distorted by government and taxation. Letting “pure” market forces govern innovation as the sole driver is to bet all of your money on a horse that limps.  Why not find ways to stimulate innovation with an improved stream of chemical innovators and a renewed urgency?

Universities do this all of the time. But it is my sense that other disciplines perhaps do this better. It is all too easy for we chemists to invent a reaction or composition, publish it, and then move on to the next outcropping of opportunity. We do this thinking that surely somebody will pick up the ball and run it to the end zone of commerce.

But for any given paper published in SynLett or JOC or ______, the likelihood of commercialization is low. It is not automatically the role of academic science to drive its work towards commercialization. That has been the role of engineering. 

What has been lacking is more significant early overlap of the two disciplines. For a chemist to truly be a part of bringing a transformation to the manufacturing scale, the chemist has to begin thinking about how to prepare the chemistry for the big pots and pans. This is what the art of scale-up is about. And in scale-up, the practice of chemistry has to overlap with the practice of engineering.

Industry already provides for itself in this way by training chemists to do scale-up work. This kind of work has always been beyond the scope of academic training.  But what if there were a course of study wherein chemistry faculty and students could more thoroughly address the problems of chemical manufacture? What if engineering concepts would be allowed to creep into the training of chemists?

Chemistry faculty would begin writing grants for process oriented research. Schools without engineering departments might start hiring the odd engineer or two in an effort to “modernize” the chemistry department.  Gradually, a department might become known among recruiters and donors for producing a strain of BS, MS, and PhD chemists who are already adapted to process research.

It is important to stress that the goal is not to plop conventional engineering curriculum into the chemical course of study.  That will not work. But what is possible is to build a minor in industrial chemistry applications. This pill will be easier to swallow for the P-chemists because in short order it would be apparent that chemical engineering is heavily loaded with physical chemistry.

I have tried to make a case that one way to make a positive influence in chemical innovation in North America is to begin a grass-roots effort to stimulate the culture of chemistry. I believe that providing an avenue of study that includes early exposure to engineering and process economics will stimulate many more students and faculty to make significant contributions to entrepreneurism and industry.

The Chemistry Curriculum

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It is time to have a frank talk about the fundamental merits of the college chemistry curriculum. This plan of study has remained substantially unchanged for decades (see comment by bchem). Certainly minor changes occur through nudges and bumps here and there pertaining to details. But in the last generation has there been a dialog or debate on the fundamental assumptions of the common curriculum? And I refer specifically to the ACS certified curriculum, which has been the gold standard across the country. Major changes that I have been witness to mainly accomodate an increased emphasis on biochemistry or new computerized instrumentation. 

The undergraduate chemistry curriculum is a very logical and thorough survey of the three pillars of chemistry- Theory, synthesis, and analysis. This covers the fields of inorganic, organic, physical, analytical, and biochemistry. Along the way we teach a few other areas of specialty by way of electives.

The current program of chemical pedagogy is certainly true to itself. There is genuine concern and care to avoid dilution of the content and over-inflation of grades, generally. The core domains of the subject are sorted out and given special consideration. Much work has been done to spark interest in the field and textbooks seem to be written quite well as a rule.  Resources like J. Chem. Ed. are a continuous stream of clever tools and tricks to make the subject more plain.

Our colleges and universities have been quite good at churning out chemical scholarship. And students are given scholarly exposure in their learning program. Not surprisingly, scholars are very good at producing more scholars.

But has the academy been keeping up with the role of chemistry in the world?  Just look around. How many CEO’s and upper executives in the top 100 chemical companies are chemists? I have not seen this statistic tabulated. But I am confident that relatively few chemists populate those ranks. Those that do often arise through marketing or finance channels.

But why should they? The field of chemistry attracts people interested in science, not business. Chemical educators have a responsibility to educate chemical scientists with a minimum proficiency in the field.  That requires a minimum number of semester hours of coursework within a 4 year period. There is only so much a department can do and so much a student can absorb.

Yet, the purpose of a college education is to prepare a student for a productive life. A learning program that is internally consistent but blind to the needs of the external world is a fantasy. Have we come to value programmatic tidiness more than practicality?

Chemistry is a highly practical field. It involves problem solving and production. Chemists make stuff. Chemists solve problems. Chemists are specialists in the transformation of matter. But chemists do not operate in a vacuum. They do their work for organizations, and there is the rub.

By training, chemists are woefully prepared to function outside the laboratory. And as a direct result, chemists are poorly prepared to leave the lab and function elsewhere in the organization.  Traditionally, education in the organizational arts has been considered on-the-job training. In a sense this is not unreasonable. How can educators anticipate the needs of a student 5 years into the future? 

What is under appreciated by educators and students alike are the many opportunities that will follow for a chemist in industry. Many if not most chemists will come to a fork in the road in their careers. Will they stay in the lab or will they go to the business side? Usually, the path to greater opportunity in a business organization is the business side. Technical sales, customer service, marketing, procurement, management, etc.

I am not proposing that chemistry faculty teach coursework that cover such material. I am trying to suggest, however, that chemistry departments take a closer look at what an industrial career really looks like and try to anticipate a few needs that will arise as a result of this career path. Advisors can talk to students about the possibility of a business minor. An accounting or marketing class could be very helpful for a student who is uncertain about his/her career path. These are painless actions that can be of great use to a graduate.

But there is more than the passive approach of suggesting alternatives to undergrads. There is a more active approach that would definitely serve the needs of students and society alike.

Elective coursework covering intellectual property and patents, business law, the regulatory world (TSCA, EPA, OSHA, CERCLA, REACH, etc.), industrial hygiene, and perhaps most importantly an introduction to chemical engineering. This last item I cannot overemphasize.  Chemical engineering includes the basics of unit operations, process economics, thermodynamics, and controls. I would offer that the whole package could be called Industrial Chemistry. 

There are junior college programs for chemical operators that do provide exposure to some engineering concepts. But this isn’t necessarily for management track graduates.

I would offer that the department with an industrial chemistry program would be very successful in job placement as well as attracting new majors.  Comments?