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RELIGION WHERE ART THOU(edited excerpt from a Road Once Traveled)

Joseph R. Carvalko

Copyright 2009

 

THE LONG AWAITED Christmas Eve came—long awaited that is for my grandchildren; for on this eve they would sing in the choir group for tots four through eight. The church stood large and white in the center of a medium sized New England town. I was not one of its parishioners but had been here several times to witness my cherubs sing and perform. I arrived a half-hour before the service started to insure that I had a seat with a view. The pews just behind those reserved for special guests were vacant. I had a clear vision of the altar. At the appointed time the children assembled in the front of a large hall in front of the plain protestant alter. A few moments passed as the choir director assured that everyone align for best performance. Robin was on one end and April, her older and taller sister was in the center. The group began with The First Noel. I was moved but wondered what I really believed in about this. I concluded my newfound sense of spirituality had to do with the miracle of my grandchildren rather than in some supreme being. Perhaps, the spirituality I felt stemmed from my witness of the daughters of my blood. I can believe in this self-evident thing. If that truth manifests god, so be it.  Do I need to know more? The children sang, the minister preached, the penitents prayed and dead spirits communed in this sequestered hall that celebrated the recurrence of life and death as I wandered into and out of a timeless reverie that intellectualizes what I do and do not feel about a god.

 

For hundreds of years Old World families maintained the cyclicality of the Christian faith in the Feast of the Circumcision, Ash Wednesday, Palm Sunday, All Saints Day, Christmas, and then over again. But in a place like the New World, mainly after the war, the fabric that once wove these rituals into a unified whole began fray and inevitably the last threads that held the cycle intact unraveled. Both sides of the family were Catholic. My paternal grandmother and her daughter attended church regularly. As for my immediate family, my father never went to church (or mentioned the word god) and my mother who mentions God a great deal in greeting cards, only spent Easter or Christmas there. I, on the other hand, did attend church regularly as a child, ordered to.

 

Unlike their modern counterparts, the churches of my childhood were from the Old World and another millennium, and in fealty to that origin faced eastward. Their design intentionally permitted morning’s light to enter the sacred basilica and cast God’s beam over a tiny missal we all carried. Once morning passed the vacuous hall became dark once again, foreclosing the written word, and forcing our concentration on the Rosary, where you only needed to feel the beads strung along a loop that inevitable lead you back to the beginning, the Crucifix. Candles outlined the outer aisles and served as the main source of illumination in the small vestibules, where they burned beneath the feet of some revered icon in a reminder of the duality of fire, both as a symbol of God’s kingdom and the devil’s perdition. Magnificent halls of Baroque and Classic Italian architecture where huge marbled columns lined granite aisles, down which generous, but mostly poor, humble and somber penitents marched forward and backward and toward forgiveness and ultimate salvation, in a daily struggle to be perfect and human at the same time. And, importantly here the capped channelers baptized, wedded and ultimately funeralized our ghostly spirit. We ritualized our presence on earth so we might find freedom in an after life. The altars represented the last vestige of an ancient rite, solemnized in a Latin mass for the masses whose vernacular long since diverged from any comprehension of the sacred soliloquy. My fascination with the mystery of it all consumed my quiet time, the time when I talked inside my head so only I could hear my thoughts or commune through prayer with a reticent Trinitarian God whom I would later believe dispensed justice according to an odd prescription of predestination. Or as Saint Augustine would rationalize, God may be inequitable, but certainly not unjust! History certainly has its share of intellects smitten by superstition.

 

In the nineteen forties, churches in most northeastern cities symbolized the ethnic make up of its neighborhoods. In their structure we see a reflection of the various group’s strengths, hopes and aspirations.  Where I lived, a red brick Russian Orthodox church sat on the tallest hill in the Russian enclave, a granite Slovak church, squat in the Slovak section. Saint Patrick's church presented an austere looking and overall brighter edifice than its Italian counterpart. There were two Italian churches the Holy Rosary and St. Raphael and both yellow brick. Perhaps the yellow reminded its members of Italy and its many bright pastel colored villages. The Holy Rosary, resembled a miniature of IL Duomo in Florence, it had its own golden dome. St. Raphael’s had been resurrected in the early fifties as a less ornate patrician church of solid granite floors, highly polished marble pillars, gold leafed cornices and the usual statutory assemblage of the more popular Italian saints to guide us through the ever complex human travail, safely and if not safely, spiritually.

 

In St. Raphael’s I received three of the five sacraments I could expect over my lifetime, the other two, being marriage and extreme unction.  This last one I would assiduously try to avoid. The priests conferred the outward signs of the Lord’s inner gift of Grace: Baptism, First Holy Communion and Confirmation. In this last ceremony, I knelt before and then kissed the golden ring of a corpulent bishop sitting on a gilded red velvet throne (I beamed in god’s approval). In the hallowed halls of the cross erected for the good parishioners of St. Raphael’s, I a child of seven, without sin, would feel guilt, and thence methodically recite the Confiter:

 

“I confess to almighty God, To Blessed Mary, ever Virgin, To Blessed Michael, the Archangel, To … that I have sinned exceedingly, In thought, word, and deed, Through my fault, …Therefore I beseech the Mary, ever Virgin, …Pray to the Lord, my God, for me.”

 

At seven I had already assumed that sins unknown to me consciously must nevertheless exist and I must confess them, and ask a cadre of saintly agents, whom I have never met, to intercede on my penitent behalf. Everything from how we live our lives, to how we celebrate the rituals of confession, birth and death must involve these paradoxical incorporeal and ethereal beings.  This early spiritual connection with beings I had never encountered, except buried deep within the imaginary pockets of my cerebellum, has had much to do with my sense of right and wrong, so that in my inner self, in that place of sanctified solitude, I should feel guilty, for perhaps not having a sin to report for not to have sinned could constitute a sin (the church needs to have it this way, for after all if people stopped sinning the church would go out of business and that cannot be good).  I also strangely began to look forward to a solitude that reflected the growing need to find peace at the tender age of seven. 

 

After my First Communion at the age of seven, the good nuns from St. Raphael conscripted me into altar boy service. They would teach me Charity, Faith and Grace, subjects that only metaphysicians appreciate.  But, I took my duties seriously, the first of which I learned to navigate the altar, transport the holy water, focus the candles, fan the incense, dress in the black and white clerical vestments, and to respond to the priest’s Latin liturgy. These differed for the several kinds of celebrated masses, one set of general muttering reserved for Sundays, but customized for each of the religious seasons. Another set of muttering for the common couple’s wedding and another for those of influence, funerals (the same), and so on. I say muttering, because the priest recited mass in a dead language no one understood. I muttered, too. I had to learn a dozen different stock responses to the priest's incantations.  I could not keep straight when to move the Gospel from one side of the altar to the other, or when to light the candles, or ring the bell or genuflect. In my desire to take orders perfectly, I often became befuddled and lost clarity of mind.  I could not remember the difference between the stole and the amice. I could not remember when to announce the coming of Jesus by ringing the bells and beating my chest at the same time. But, here I learned that the rituals played out in this temple, were not unlike the rituals I would later observe in all manner of institutions, the military, the corporation, the court and prison.  You must learn the language, the times you can cross from one place to another, when you are permitted to light the candles, ring the bells, when to genuflect and say may I. And, loose that habit of befuddlement. In fact the greater part of success in life depends on one’s ability to perform all manner of rituals. I found this later in the adult world of government and corporations, all in which I frequently found myself lighting candles, ringing bells, moving things from one side of the altar to the other, muttering, looking up to the idols and always, always remembering to genuflect in their presence. 

 

In 1950 after my family moved into the north end of town, a ten-cent bus ride would take me to the church to first memorize the Latin phrases, and then later to serve the mass. I saw the yellow brick convent secured behind a steel page fence, seeming to incarcerate the mother superior and her habited cadres of beatific teenaged nuns not only as a sanctuary, but also as a prison. I had the feeling of both security and suffocation, of faith and agnosticism, of hope and despair. Awed by their austerity, sanctuary, myths, miracles and intermediating Madonna, I wondered if I could ever aspire to priesthood.  I wondered if I would go to heaven. I asked the icons that lined the chapel, I beseeched the Holy Ghost, I prayed for an answer.  I wondered if I would ever memorize the solemn phrases, but eventually, the last wonder would quell in the quiet of the small dimly lit convent foyer, I finally memorized the Latin that to this day I cannot erase from my memory, even though I still don't know what it all means. It’s better left that way, but in the convent's celestial atmosphere of pedagogical insignificance, it still casts an everlasting notion of my catholicness (intended small “c”), even though I, like my parents before me, would someday only attend church occasionally for baptisms, weddings and funerals.  For nearly a year, patiently, the saintly nuns at St. Raphael's bathed my childlike mind in the sanctimony of their innocent outlook, leaving me with a residue of both veneration and dread, which to this day arouses me every time I find myself in church. In years past my heart would beat fast and my eyes would gloss over tear-like. As I now find my self in the grip of old age, I have concluded that my tears flowed because the Madonna, Mother of the World never answered. I have concluded that the idea of her represents only an image, the image of a black abyss, an abyss that delimits the beginning and the end of my life as difficult as it is to accept this thought.

 

The church shaped my outlook regarding rituals of guilt, death, and serving idols. Like all cults, the ecclesiastical order moves its novitiates from mere lambs to staunch lions for a god, his apostles, disciples, popes, cardinals, bishops, monsignors, priests, nuns and then the saints, archangels, angels and guardian angels in that order. Religious programming serves to foster the ceremonies, observances of traditions and its deities. More importantly it informs us of the sacrifices we need to make to exorcise the demons from our soul. When we deviate from its prescriptions, we feel guilty—in this the church, our parents and schools have done a splendid job. The Catholic culture, like all cultures, passes down its moral traditions in the parable or its religious stories, the prayer, the Gospel, and the Catechism.  I leave out the Bible, because in the Catholic Church only the priests have access to it, the church considers the laity too ignorant to interpret it correctly (considering the wide spread belief in creationism among U.S. politicians, withholding the Bible may not be a bad thing). The pope must have realized this sometime during the Reformation.

 

Beyond holy significance, our religious culture defines our day-to-day behavior, how we ritualize birth and death, and how we respond the ought and naught of secular exigencies. These rituals inculcate the religion’s orthodoxy of values of fairness, justice or sin that get converted into a civic order.  Eventually these become the moral, ethical and legal foundation for our lives. It drives important decisions: whom we marry, how many children, how we earn our living, how we see suffering, crime, punishment, equity and duty. It serves to guide our actions in individual and collective ways, sometimes for good and sometimes for evil. It establishes the grounding, upon which we resolve to fashion our race, our tribe, and our society.

 

Contradictions, paradoxes and doubt summarize my theological insights. If a god exists, it defies logical explanation. We have no ability to comprehend Him or It on rational terms. In the late 90’s, a group of old men were executed in Kosovo, and five young teenage girls were beaten and raped in the same town by the rebel forces sympathetic to the Serbs for no apparent reason, except that they were Moslems in a Christian world. More recently the Iraq War pits Moslem sect against competing Moslem sect. Terrorists attacked us on 9/11 in the name of Allah. But, it’s not just religious zealotry that shocks us. In another report, a woman and her four children walking along a Connecticut railroad track at two o’clock in the morning are killed. A six-year-old fires a gun and kills a six year old. It’s not death that contradicts god. It’s the manner of death, its meaninglessness, harsh random, casual and cruel causation that contradicts him. god’s presence, his teaching, His power never explains why good people often suffer the brute forces of Nature or why decent people die at the hands of despots crazed by ideological war or zeal, or at the whim of common criminals. And, why evil people may live lives of comfort and die in dignity and tranquility. Do we take it on Faith that he embodies Divine Justice?

 

I struggle to disavow the notion that predestination is god’s gift of Grace to some and not others, that he has favorites, or that he chooses one over the other, as He chose Jacob over Esau.  Does he choose friends and relatives of mine to live excruciating lives or to die excruciating deaths? Not a day goes by without hearing about some accident, epidemic or natural disaster reducing an otherwise healthy population. In the Balkans, Middle East, Sub Saharan Africa, Chechen Republic, Iraq, Darfur, and selected infernos of hell on earth, women and children succumb to the wars of mechanized killing at the hands of zealots, demigods, and diabolical politicians (mostly men). If there were a god, what is he thinking! Is he really just making room or deciding something else?

 

The deacon and his staff passed out lighted candles and we all headed for the front gray granite church steps. The December night was cold and windy, but the congregant’s demonstrated the will to sing one last verse of Silent Night. I held one granddaughter in each arm. We shivered with the rest of the chorus. The singing swelled my heart. In the words of the philosopher cleric Kierkegaard: “…if God does not exist it of course would be impossible to prove it; and if he does exist it would be folly to attempt it.” So after an evening of listening to my granddaughters sing their little hearts out, we sang the words of a song that made  me no wiser, but perhaps as joined together, warmer and richer.

 

PATENTS IN MOTION

A PIXEFFECTS COMPANY

50 Beach Avenue

Milford, Connecticut 06460

Tel. 203-876-1342

www.pixeffects.net

 

 

Patents In Motion^TM is a Pixeffects Company created to help inventors and entrepreneurs show how a patented invention works. Rather than the customary prototype creation we use 3D computer graphics, animation and digital film with after effects. Our idea improves the understanding of an invention especially when the patent forms the basis for a new venture, a license or litigation. Prototypes are enormously expensive because in many cases they require a mold or machining out of solid materials. The costs can run $15,000 to $30,000 for a simple product. The alternatives, computer aided design and conventional 3D computer modeling, has also been prohibitive in cost (similarly costing $10,000 to $20,000). We keep product development costs low based upon experienced in-house graphic design, patent and engineering specialists, having access to libraries of graphic templates, proprietary methods for creating the graphics and the latest software. For clients we create a 3D graphic directly from the patent specification and drawing. In most cases the cost is between $1,500 and $5,000. Our business model supplies the finished work product to firms who may use or integrate the product for their specific needs. We have 3D computer graphic patent demonstrations at: http://www.pixeffects.net/PatentsinMotion.html

The Ethical Reality of Bioengineering  

Joseph Carvalko, Jr.

Copyright 2008

 

From the recent successes of the Human Genome Project in deciphering DNA, scientists rapidly shift to catalog the library of millions of proteins that account for all cell structure, states of biologic affairs and processes. The bioengineering revolution moves forward at a lightening pace. In the latest addition to the technologic lexicon, proteomics now leads the way in the search for the Holy Grail of therapeutics. DNA may be the fundamental blueprint for life, but the final engineered products configure themselves from massive inventories of distinct proteins. These three dimensional combinations of molecules fasten together like beams, trusses and trestles to create both structure and dynamics in the performance of form and function without which life in any species would not exist. The popular press reports that the worldwide market for proteomics instruments, supplies and services (many of which are being patented) will reach $5.6 billion in the next three years. [1]   The new initiatives in scientific instrumentation will surely lead to new drugs, revolutionize the practice of medicine and shape the health care industry into the next century. The financial incentive cannot be underestimated. The billions being invested on R& D today will return rich rewards over the 20-year term that the inevitable patent provides for the object of these ambitious entrepreneurial efforts: proteomic drugs. 

 

Although there has been and continues to be much debate in the U.S. over stem cell research, the debate in the U.S. over patenting stem cells has not yet reached the stridency heard in Europe. In July 2002, after fierce protests and public colloquy on the patenting of stem-cell technology, the European Patent Office’s Opposition Division held that patents cannot support human or animal embryonic stem cells, but can claim other modified human and animal stem cells. In forming its judgment it found that the granted patent failed to comply with the requirements of Rule 23d (c) of the European Patent Convention (EPC) which stipulates that uses of human embryos for industrial and commercial purposes are excluded from patentability. [2]

 

In the U.S. resistance against stem cell research largely is one over the sanctity of life as embodied in the the embryo from which stems cells are mainly derived. As exemplified by the recent stem cell resistance in Europe over patenting stem cells, patents have social significance because they form not only assets which have economic value, but because they indicate something about the culture in which they are granted favored legislated status. At least in free market democratic societies the scales tilt in one or another direction depending upon how social values and economic values of intellectual property transform under institutional and political pressures. Too heavy an emphasis on economic considerations keeps social imperatives from finding their proper levels.[3] To keep the scales balanced requires that we factor moral purposes into any analysis.

 

Thomson’s human embryonic stem cell technology has yet to produce a commercial product, but ownership in the biotechnology of tissue samples, embryos, and life saving drugs raise important economic and moral issues. In November 2001, Advanced Cell Technology announced that it successfully cloned human embryos for therapeutic purposes. Others around the world are also working long hours to achieve the ambitious goal of human cloning, but for reproductive ends. In Italy Severino Antinori, founder of the Associated Researchers for Human Reproduction (RAPRUI) clinic, has been an outspoken advocate of human cloning for just this purpose. In claiming that he had already cloned a human embryo of 20 cells, he goes on to justify the practice in terms of a market demand where presently over 6,000 couples in the U.S. alone await a reliable protocol for cloning their future children.[4]  At a recent conference on human cloning at the National Academy of Sciences, Panos Zavos, a professor of reproductive physiology at the University of Kentucky and co-founder of a fertility clinic in Lexington, reportedly indicated that he would assist couples in achieving their reproductive goals through cloning when the male partner could not produce viable sperm. [5]

 

The articles that follow deal with law, social reality and ethics as applied to bioengineering. I again discuss intellectual property (IP) in the context of its ontology and its phenomenology. In short, IP represents a jurisprudential concept as does its common analog real property, but it also represents artifacts characterized by degrees of tangibility. It is in this second sense that intellectual property is not well understood. In some forms, the artifact is simply a thought (such as a creative idea) and at other times, the artifact is a physical device or process. The jurisprudential ontology (which deals with rights, such as ownership) and its existence as an artifact with degrees of tangibility are mutually affected by societal intentions. To establish this linkage, I have borrowed the concept of social construct from John Searle[6]. If we accept the proposition that law is governed by the rules of social construction, it permits us to project and analyze the economic, utilitarian and teleological considerations with greater insight than current treatments allow.[7] For example, much has been debated about the ethics of patenting life forms, but little exists by way of any, scientific, philosophical or legal theory that helps to separate the natural cytological manifestation of the life form from the science utilized in its creation or from the legal and moral rights that envelope each of these states of affairs.  

 

 

I have a jazz group that can be found at

 

 

Also see us on YouTube

 

 

 

ESSAYS ON LAW, SCIENCE AND TECHNOLOGY

 

Joseph R. Carvalko, Jr.

COPYRIGHT 2008

 

PREFACE

 

 

The manuscript that follows endeavors to weave the threads of law, science and technology for students who may find themselves having to deal with these issues in the course of their careers. Science and technology are in a state of unprecedented growth and although it is impossible to foresee what issues may arise in tomorrow’s world, through selected writings, I hope that an underlying structure will prevail and serve the student’s needs for some time to come.

 

At the intersection of law, science and technology we find society’s values, goals, and principles such as its ethics. The introductory essays survey the question ‘what is science’ primarily as viewed from the lawyer’s interest. In large part how we frame the issues in science and law depends on the objectivity of the terms used, and the dialectic and sophistry used by advocates on differing sides of the issue. As such, a section on language provides a perspective from differing professions, the ethicist, lawyer, and scientist. The middle essays set forth the proposition that law, ethics and technology shape our institutions and ultimately our society. Several essays deal with intellectual property protection, providing a sense for the scope of cover that the law traditionally allows. In a series of  discussions I venture into a scheme to formulate operators or rules that help separate natural laws, social constructs and legal regulation, each of which bear upon social change. Whether the idea has merit will have to be judged by critical readers on the subject. I also discuss the track the government has taken to liberalize the granting of software patents. The moves show the progression from patenting technology to patenting elements of our institutional reality. I next join technology and ethics in the context of intellectual property as a means of laying the foundation for analyzing evidence that attitudes towards biological and information-based patenting reflect a changing social structure raising moral questions.

 

In the closing essays, I draw upon facts presented earlier to look beyond economic issues in asking if the goals of the the country's founding political tenets (life, liberty and the pursuit of happiness) are adequately considered when formulating science, technology and intellectual property regulation.

 

Many readers will want to have a conceptual point of reference for the technologies discussed (biotechnology, artificial intelligence, computers, and business methods). Therefore, throughout the book I provide short histories of these technologies.

 

In the essays to follow, most are chosen from individuals and organizations who have offered the benefit of their backgrounds in ethics, law and science. Essays that I have authored state my opinion on a range of subjects. In many cases the opinions may be controversial or out of the mainstram of current thinking. I hope that some of the ideas expressed will foster a spirited debate in the interest of expanding our view of the matters addressed. In essays included from outside sources I have preserved the references as footnotes that accompany the article. In essays that I have authored references are found in the endnotes.

 

I caution the reader that what follows is a collection of readings that support a point of view. The core of the idea advanced throughout this manuscript considers that humanity constitutes a cycle of natural patterns that form our very existence. These patterns do not merely express the rules of reproduction and survival; they express the form of life through a consciousness and a conscience of social constructs. This includes a moral catechism, albeit authored within the realm of the narrative of the individual, her culture and the times to which she is born. Our social reality creates the very technology that affects where this life cycle both begins and ends. If through an irresponsible and irreversible application of technology we were to damage the patterns formed by nature, we would be accountable for affecting the moral ecology upon which all humanity as we have come to appreciate depends. I believe that the moral ends that one might objectively adopt ought to aim at securing the integrity of our natural patterns of formation; otherwise, we risk moving into patterns that looking forward might be sadly regrettable.

 

ABOUT THE AUTHOR

 

Joseph R. Carvalko, Jr. is a lawyer and engineer with over four decades experience in law, engineering and science. He currently practices law in the area of technology, science and intellectual property law representing clients as their needs as relate to technology licensing, acquisitions, and patent matters (prosecution/litigation). He is an adjunct professor of Law, Science and Technology at Quinnipiac University School of Law. He is also a member of the American Bar Association, Section on Law and Technology and and past editorial board member of The SciTech Lawyer a quarterly publication of the Section, and a former Chairman of the Behavioral Sciences Committee of the Section. He has taught trial practice to law students over the years as well as courses on management of intellectual property assets, diagnosing organizational behavior and the responsibility of business to society. He holds patents in a number of diverse fields such as biomedical, business machines and fuel systems. He has conducted research in the fields of data mining, cytological biomedical applications using information theory and its application to optical and acoustic holography; designing parallel processor computers and programming, developing pattern recognition systems for military and biological applications, working under the direction of the well-known information theorist Dr. Marcel Golay and professor Kendall Preston.  In his capacity as a lawyer he has represented a broad class of litigants from clients charged with crimes to patent infringement. He has conducted jury, bench trials, and arbitrations. Mr. Carvalko is a graduate of Quinnipiac University School of Law and a graduate of Fairfield University School of Engineering.

 

 

ESSAYS ON LAW, SCIENCE AND TECHNOLOGY

 

Joseph R. Carvalko, Jr.

COPYRIGHT 2008

 

PREFACE.. 7

INTRODUCTION... 11

PART I:  SCIENCE.. 14

A Continuum of Change-So What’s New?. 14

Reference Manual on Scientific Evidence. 18

Correspondence Rules. 25

How Science Works. 31

Galileo: The Church Controversy. 46

Intelligent Design and the Dover Area School District 48

Global Warming Science. 60

Theories and Nonobservables. 64

Federal Rules of Evidence (2004) 69

William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc. 71

PART II:  ETHICAL OVERVIEW.... 82

Ethical Questions in Law, Science and Technology. 82

The Language of Ethics. 86

Internal and External Goods. 93

The Inventive Spirit 96

Science and Technology and the Triple D (Disease, Disability, Defect) 102

Genetics and Discrimination. 113

Policy Making. 119

Legislation. 124

Moore v. Regents of University of California. 125

Atoms of Expression-Who Owns Them.. 140

PART III:  LANGUAGE.. 144

Language at the Bottom.. 144

Introduction to an Ontology of Intellectual Property. 147

Phillips v. AWH Corporation, et al 151

Empiricism, Semantics, and Ontology. 160

Who Speaks for the Stem Cell 167

On Terminology for Human Cloning. 172

The Maxim Rules. 187

Natural, Constitutive and Regulatory Rules. 191

PART IV:  TECHNOLOGY.. 195

Paradigms, Programs and Paragons. 195

A Short History of Computers. 200

NBICS (NANO-BIO-INFO-COGNO-SOCIO) Convergence to Improve Human Performance: Opportunities and Challenges  208

A Primer on Bioengineering. 225

Defense and Biology: Fundamentals for the Future. 232

The Magnitude of Change. 235

Getting to the Heart of the Mind. 238

PART V:  INTELLECTUAL PROPERTY.. 241

Converging Technologies and Intellectual Property Issues. 241

The Legal and Social Rules for Intellectual Property. 244

A Multithreaded Tessellation. 248

Patenting Biological Assets and Pharmaceuticals. 259

Patent Options for DNA Inventions. 260

Patentability. 263

The Business Method Patent- A New Look at a Brief History. 269

ANNEX III Improper Tests For Subject Matter Eligibility. 285

ANNEX IV Computer-Related Nonstatutory Subject Matter. 290

ANNEX 5 Mathematical Algorithms. 295

PART VI:  ETHICS OF PATENTING... 297

The Ethical Reality of Bioengineering. 297

Ethics Considerations in Patenting DNA.. 299

Patenting Life Forms – Ends in Themselves. 304

Diamond V. Chakrabarty. 315

The Emergence of a National Policy. 322

Reaping the Benefits of Genomic and Proteomic Research. 323

Real World Telos. 338

The Ethics of Patenting DNA Chapter 3. 341

Hardware, Symbolware and Natureware. 358

PART VII:  BEYOND INTELLECTUAL PROPERTY.. 367

Identity-That Which We Are. 367

Issues of Human Dignity in Procreation. 369

Utility of Form and Ethics. 380

Closing Remarks. 392

END NOTES.. 394

MATHEMATICS IN THE SOFTWARE

 

Joseph R.Carvalko

Copyright 2007

 

In 1992 and in 1994, the Federal Circuit extended patent protection to two inventions that solved a unique set of mathematical equations using a digital computer. In Arrhythmia Research Technology[1] the court found its footing in the Diehr pattern and held that the transformation of electrocardiograph signals from a patient's heartbeat by a machine through a series of mathematical calculations constituted a practical application of an abstract idea (a mathematical algorithm, formula, or calculation), because the condition of a patient's heart represents a useful, concrete or tangible thing.[2] Here the state was the condition of a patient’s heart. In point of fact the court moved beyond Diehr, because the Arrhythmia invention was not a transformation of one substance into a different substance (cured and uncured synthetic rubber), but of mensuration and interpretation, of the heart causing an electrical signal that in turn disclosed a heart’s condition (physical state). Clearly, the phenomenological elements changed, but the court did not view that change as having moved the matter outside the Diehr model. [3]

 

In reading a limitation not found in the patent statute into the term “process”, the Benson Court earlier determined that “a procedure for solving a given type of mathematical problem”, in that case a conversion from one numbering system to another, did not satisfy the patent statute’s utility requirement. In this regard, the Court’s holding had the effect of retaining the integrity of the “abstract idea” exception. In Flook, the court found that the process involved a mathematical calculation, and again determined that it was therefore unpatentable. Flook mixed the terms “formula” and “algorithm” and confused the meaning of “mathematical algorithm”. [4] The court in Arrythmia declared that an “algorithm” required both a mathematical problem and a procedure leading to a solution.

 

In Arrythmia, the court wrote, “…Mathematics, like a language, is a form of expression. The operation of a machine, the generation of electricity, the reaction of two chemicals, a baseball batter's swing, a satellite's orbit—all are within the descriptive power of mathematics. [5] … some mathematical algorithms ... represent ideas or mental processes and are simply logical vehicles for communicating possible solutions to complex problems… No wonder the Benson rule is confusing when electrical, chemical, or mechanical processes escape scrutiny when expressed in written language, but become suspect when expressed in the mathematical language.”

 

TURNING THE CORNER

 

John Searle helped us see how we seamlessly move from the material world of atoms to the social world of human intentionality.[6] A socially constructed world joins the world of intangible ideas, products, and processes through a social construct comprised of collective intentionality, constitutive rules, and the assignment of meaning. Social constructs serve to create, observe, and to explicate the world in terms that are not always scientific: the everyday life of expressing who, what, when, how, and where. Through the exercise of intentionality, we construct nonphysical social systems for our welfare, security, and propagation. And, it seems to move the physical requirement historically underlying the patent system into a socially constructed one.

 

Arrhythmia opened the patentability of software incrementally linking it to our socially constructed world. In 1994, Alappat cracked wide open what had become an increasingly crazed dam, trying to cut finer and finer distinctions around the concepts of “abstract ideas”, “mental steps” and causal connections. [7] However, on the facts, this was a tough case to make for moving abstractions into the realm of the material world. From all external appearances it represented a case of whether programs were patentable under the statute, but behind a scene was whether the court would permit the elimination of the causative factor we associate with physical systems.

 

The claimed invention was drawn to a rasterizer for presenting data on a digital cathode-ray tube (CRT). [8] Such a screen has limited resolution or the ability to show details smaller than a certain size. The discrete number of picture elements or pixels also affected the smoothness in the display of a curved line. As a result, when configured to display data that maps to a curve line, the rapidly rising and falling portions of the curve would appear jagged. [9] The input signal was digitized and formed a vector of values. The intensity at which each of the pixels was to be illuminated depended upon the distance of the center point of each pixel from the vector trajectory on the screen. Pixels squarely on the waveform trace was to receive maximum illumination, and pixels lying along an edge was to receive illumination decreasing in intensity proportional to the increase in the distance of the center point of the pixel from the vector trajectory. The invention solved the problem by effectively decreasing the illumination of the outlier pixels.

 

The Court’s majority found that the “means clauses” in the claim relating to software actually recited a machine composed of known electronic circuit elements.[10] The corollary finding was that the means for creating a smooth display in the CRT, should not be read as a process. This eliminated having to deal with whether an algorithm was involved. And, since algorithms only carry out processes, they have no material physicality. This obviously narrowed the argument. All attention would center on whether there were sufficient expressions of novel hardware, that is material elements to carry out the invention.

 

We understand from the holding that the data is transformed through a series of mathematical calculations. This would seem no different than summing a list of numbers by manually entering them into a mechanical or electronic calculator. It remains unclear how this produces any causal effect or becomes self-interpreting without an intermediate agency. In Alappat, this unnamed phenomenon produces a smooth waveform display on a monitor. A CRT display refers to a glass surface coated with a phosphorescent material that illuminates when showered by electrons. Although useful, concrete and tangible, such a device and its phenomenon may logically lack novelty. This logic gets lost in the majority’s argument.

 

Judge Archer writing for the minority argues rather persuasively that: “Even though it recites structure, claim 15 should be rejected under § 101…Thus, a known circuit containing a light bulb, battery, and switch is not a new machine when the switch is opened and closed to recite a new story in Morse code, because the “invent[ion] or discover[y]” is merely a new story, which is nonstatutory subject matter. An old stereo playing a new song on a compact disc is not a new machine because the invention or discovery is merely a new song, which is nonstatutory subject matter. The perforated rolls [of a player piano] are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination…Yet a player piano playing Chopin's scales does not become a “new machine” when it spins a roll to play Brahms' lullaby. The distinction between the piano before and after different rolls are inserted resides not in the piano's changing quality as a “machine” but only in the changing melodies being played by the one machine. The only invention by the creator of a roll that is new because of its music is the new music. Because the patent law does not examine musical compositions to determine their relation to those that have gone before, the distinction between new and old music can never qualify for patent protection.”[11]

 

The minority found that the rasterizer was a mathematical converter. Archer points out, “The rasterizer mathematically converted data. The question and the disagreement was over whether the rasterizer was, in addition to being a mathematical converter, also a “machine” under the patent statute. The majority found that is was and won that argument.

 

In Alappat, the Federal Circuit divided along an uneven fault line; with those who viewed objects of the technology under examination as producing harden tangible outcomes and others who saw them as producing ephemera. [12] The notion of stare decisis breeds into common law a measure of constancy, but often it suffocates the life out of dissenting opinions, even when they may take the better position or in retrospect makes the better argument.

 

In finding that the program deserved statutory protection, the Alappat Court had to properly interpret the significance of each and every term in their holding which essentially found that data, transformed by a machine through a series of mathematical calculations to produce a smooth waveform display on a rasterizer monitor, constituted a practical application of an abstract idea (a mathematical algorithm, formula, or calculation), because production of a smooth waveform is "a useful, concrete and tangible result". Implicit in this finding is a belief. This belief is grounded in the majority’s social reality, base upon its “collective intentionality”, its application of constitutive rules (the rule of law, both general and patent specific), and lastly its assignment of meaning, in this instance identifying the requisite albeit observer-dependent “use".

 

This holding has several problems beyond its disputable final effect. Data represents a mental construct of something that might or might not be tangible. The results from last year’s election, a weather map listing temperatures around the country, or the information on a birth certificate, contain data. But, we cannot hold this “data” as we can hold a hammer. The data sits in the mind’s eye. Data might be represented in the form of a chalk mark on a board or in an electrical state stored in a silicon chip. But, data represents nothing, unless we provide it an interpretation. So that data transformed by a machine, means in the case of a computer, electrical charge transformed into an accumulation of charges, perhaps at differing positions or manifesting at different times, all of which can be construed to mean whatever the individual exposed to the data decides it means. That something is not objective. It is subjective and beyond individual interpretation depending ultimately on the collective agreement as to its meaning.

 

In the Alappat invention, there were copious “means for” claiming.[13] As such, the underlying and important determination should have been whether the means, which constituted the hardware, were novel.[14] The majority opinion found that the “means for” support was found in the subsequent claims.  Claim 16 called for a means for determining the vertical distance between the endpoints of each of the vectors in the data list.[15] For this the judges refer to an arithmetic logic circuit configured to perform an absolute value function.[16] Claim 17 recited that means for determining the elevation of a row of pixels spanning the vector also comprises an arithmetic logic circuit, configured to perform an absolute value function. Claim 18 recited that the means for normalizing the vertical distance and elevation comprised a pair of barrel shifters. Finally, claim 19 recited that means for outputting comprised a read only memory (ROM) containing illumination intensity data. [17]

 

The matter in this instance and patenting software generally requires making proper epistemic and ontologic analyses. The mind must wrap itself around the question whether the software equates to the idea, the written work (source and object code), a process or a machine? Essentially, was “the means for” performing the specified functions without the recital of structure, material, or acts able to be construed to cover the corresponding structure, material, or acts described in the specification? And, if so were these artifacts novel? Bennett and Feldman point out: “If a categorization permits the hearer to draw a clear and sensible inference about the connection between the categorized symbols, the listener will make that categorized connection.” [18] Apparently, the majority felt that they heard what they needed to make the connection. Certainly they were mindful of the industry’s clarion call for intellectual property protection for software related inventions.

 

It had been conceded that each of the means were components known in the electronics arts before Alappat made his invention. Typically this would not bode well for an applicant trying to prove novelty. Oddly enough this gave the majority flexibility in constructing its vision of novelty. Neither courts nor we ever have all the facts that a complete description of the whole requires. We draw inferences in making empirical connections. This is precisely what the majority did. The validity of these connections and their relationship to each other are judged based on accuracy, appropriateness, consistency and completeness. In addition, each of these is in turn made with reference to a category of appropriate things. [19] The more someone knows about a subject, the broader one's range of accurate and appropriate responses and the greater their ability to sense ambiguities, report nuances and require details. However, without a unified theory of intellectual property, jurists are left with no map to get from point A to point B. As such they are apt to get lost in the complexity of the matter.

 

The majority stated that: “Although many, or arguably even all, of the means elements recited in claim 15 represent circuitry elements that perform mathematical calculations, which is essentially true of all digital electrical circuits, the claimed invention as a whole is directed to a combination of interrelated elements which combine to form a machine for converting discrete waveform data samples into anti-aliased pixel illumination intensity data to be displayed on a display means. This is not a disembodied mathematical concept which may be characterized as an “abstract idea,” but rather a specific machine to produce a useful, concrete, and tangible result.”

 

The revolution was nearly complete with the majority’s reassertion that the invention read on a programmed general-purpose computer. This alone did not justify holding the invention unpatentable, since it had previously held that such programming only creates a new machine. However, every time a general-purpose computer is programmed, it becomes a special purpose computer performing particular functions. Since, software does not function outside a computer, claiming software in combination with a computer satisfied the court, and for that matter most of the software community looking for a clear signal that the matter fell within the patent statute. 

 

LOOKING BACK

 

After Alappat, we might view that the connection between the software and the computer relate cause and effect, that the computer acts upon the software and the software acts upon the computer, and that this causality connects and unites the two into one machine. Neither Diehr nor Arrhythmia substantively changed patent law. Alappat did.  The holding would normally have required a change to the patent statute. It marginally changed the procedure by which patent applications would be examined. What did not change was the court’s recognition that engineered devices having requisite novelty might also have computational elements within the statutory scheme that Congress intended. By today’s standards Babbage’s computing engine would have been patentable. So what about its electronic analog? Unfortunately analogs are sometimes in the eyes of the beholder. As such it took years for the judiciary to view the analogy, that electronic computers operating under computational software were nothing more nor less than its mechanical analog, a calculating engine. The judiciary’s long trek from Abrams to Alappat demonstrated the elasticity patent law has in expanding its reach to embrace new technological processes. [20]  In the nineties software/computer cases lead the court to expand the category of things that fit within the framework of novel engineered devices.

 

From the very beginning, computers ran processes that were non-transforming. Producing new applications and labeling them Quicken or Microsoft Money did not change matters. Yet these too were processes that would be covered by patent protection. For example, to illustrate the jurisprudential distance between Diehr in 1980 and the mid-1990’s, the Federal Circuit now held that the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constituted a practical application of a mathematical algorithm. In this case, discussed below, and the thousands to follow, the sophistic thinking that had to consider the technological intricacies of “mental operation” had mysteriously vanished. In the mid-1990’ the courts were beginning to look at computer systems from fifty thousand feet and references to technology would seem as if they were more out of respect to a dying relic than a requirement under patent law. In 1995 the U.S. Patent Office promulgated guidance to its examiners and the patent bar alike to clarify what distinctions exist between data and purely descriptive material.[21]

 

Unfortunately, the Alappat court did not have a clear view of some fixed horizon, but one cluttered by the technicalities of technology, arcane patent law and a changing business environment clamoring for patent protection. When judges make new law, they legislate. If the judgment were made and applied only in this particular case, the entire matter would have reverted to its pre-Alappat era, none the worse. However, in regards to the line software cases the judges took up the task of the legislators. The decisions had the effect of changing patent law substantively. [22] Such dramatic judgments in high courts more often than not cause permanent alterations to the segment of society most affected. At the risk of overstatement, I believe that computers, having become ubiquitous to modern endeavors, affected virtually every economic and social fabric of life. For without a clear mandate that software was patentable, the modern era of the dot-com industry would not have materialized in the same way, whole new industries that create and manage patents would not have sprung, and in some sense the same kind of liberalizing force at work here, might not have drifted into the consideration of patenting life forms.

 

The Business Method Patent- A Brief History

Joseph R. Carvalko, Jr.

Copyright 2007

 

 

For the better part of 30 to 40 years following WWII isolated freestanding computers did not significantly affect our society, economy or our institutions. However, as computers have come to dominate our lives and influence how institutions (government, banks, insurance companies, hospitals, law firms, etc.) conduct business it has changed our social reality. Tracking this path has been the U.S. patent system’s effort to understand what role it would play as computers became ubiquitous. Part of this effort took us on a  path that lead from the convention that mathematical statements were not patentable to the convention that business methods (essentially computational statements) were patentable. This development turned out to be one of the most stunning in modern intellectual property history.[1]

 

Let us start at the beginning. Inventions have traditionally formed the bridge between objects or artifacts whose meaning we have assigned by virtue of physical features and a system of utility (e.g., a bathtub or a common pail each have a form or shape able to contain water). This characterization would exclude scientific theories and mathematical systems, because each of these entities are nonphysical. Although the water containment feature of the pail (e.g., a concavity for holding X gallons of a liquid) may be apparent, the application we assign to it  are in the eyes of the beholder (observer-relative). For instance it may not be assigned the role of pail, but that of an anchor if I were to fill it with concrete and use it on my boat. Every novel application creates a new entity in the world. Inventive entities as such are ontologically subjective, because their existence (what they are used for) depends upon someone assigning a function or a purpose to them. Nevertheless, certain artifacts, such as the pail or bathtub, have a high degree of objectivity, because a judgment about the fact that the thing is an artifact for doing X (in our example, containing a liquid) does not depend on anyone’s judgment or attitude, but upon objective facts about what sufficiently holds a liquid. We would consider the fact about the containment feature of the pail to be epistemically objective. However, as inventions progress into the abstractions of calculations, data, and symbols, we loose that sense of objectivity. An aboriginal friend of mine in the middle of the Amazonian rain forest and I would have no difficulty agreeing that a common pail retained water, but I doubt my friend would agree with me that a number in a computer register stood for a stock price.

 

However, with increasing frequency, policy makers and judges admit into the traditional class of things referred to as patentable invention, objects whose meaning we assign by virtue of the symbolic features relative to a commercial undertaking.[2] These entities have a phenomenological being or existence (dependent upon my awareness of them) rather then possessing the character of an objective reality or existence (as for instance something in nature, such as a mountain or an ocean).  Such is the case with business and computer methods that at bottom are mathematical systems.

 

The current computer/patent epoch began in 1951, with a case captioned In re Abrams. The Court of Customs and Patent Appeals found that Mr. Abrams claimed a method of prospecting oil. At the critical juncture where one could decipher the vision of novelty, Abrams’ claim element failed to disclose any device for performing the crucial step. In fact, it was clear the missing device was to be supplanted by a calculation—a manual calculation. Save, this element, the balance of the claim was old art and not novel. The court stated what was then considered the obvious: “…Citation of authority in support of the principle that claims to mental concepts which constitute the very substance of an alleged invention are not patentable is unnecessary. It is self-evident that thought is not patentable.” [3] And, thus was born the era of the doctrine of “mental steps”.

 

Beginning in 1968 the well-settled strictures imposed by the  "function of a machine" and "mental steps" doctrines were loosening, leading to a sense that computer programs were within the categories of inventions to which Congress extended patent protection.[4] In re Tarczy-Hornoch essentially raised the question whether  the “ontic dimension of a technology lies in technique or artifact”.[5] These decisions far from settled the matter, but beginning in 1968, we could see the court’s position opening into a new dawn.

 

In re Prater was the first in a series of related cases. [6]  The invention was drawn to a method for generating coefficients of a set of simultaneous equations, generating the magnitudes of the determinants, comparing the equations to ascertain the one having the largest magnitude and using that data to generate a concentration of a mixture of gases being spectrographically analyzed. There was little doubt that the calculation could be carried out manually. However, the court held that a process that may be performed mentally should not foreclose patentability, if the claims reveal that the process also may be performed without mental operations—as by a programmed computer.

 

In the Prater case the U.S. Patent Office was disturbed by the court’s willingness to move the bar on the former prohibition against patenting “mental steps” and sought a reconsideration of the case. The Patent Office took a different tact the second time around and charged that the invention failed to “particularly point out and distinctly claim” the invention under 35 U.S.C. Section 112. Interestingly, the patent Office raised the matter that if the invention read on a series of mental steps, it would violate the free speech clause of the First Amendment. After all, it would preclude someone calculating the solution using a pencil, paper, and slide rule, calculator or sheer force of mind.

 

In the course of the rehearing, the applicant countered the Patent Office argument by stipulating that they did not intend that the claim cover mental steps, essentially disclaiming that possibility. This had the effect of the court remanding the matter to the Patent Office for further proceeding to allow the applicant to remove the inherent ambiguity. The result of the rehearing left undecided the central issue: whether a computer program or a mental step at the point of invention and needed to carry out the process could be patented? 

 

In re Bernhart and Fetter, the next case to address the matter, the court affirmed the second Prater case and held that a claim[7] that included a computer program was within the patentable subject matter. [8] We see in dicta that programmed computers were in and of themselves not identical with “mental steps”. The opening of this new fissure would slowly start to swallow the mental steps doctrine. The court wrote: “…Looking then to method claim 13, we find that it in no way covers any mental steps but requires both a “digital computer” and a “planar plotting apparatus” to carry it out. To find that the claimed process could be done mentally would require us to hold that a human mind is a digital computer or its equivalent, and that a draftsman is a planar plotting apparatus… We are unwilling to so hold.” [9] Perhaps among all the cases, this decidedly shifted the landscape.

 

In a 1970 case the CCPA held that the logical and numerical symbol referred to, as the “bit” constitutes tangible electrical pulses and not the “1’s” and “0’s” that one associates with mental calculations.[10] Engineers tend to ignore this distinction in modeling systems, but in the actual machines, the “bit”, “1’s” and “0’s” are voltages or currents, not intangible abstractions. The court reasoned that the mind could not sense the pulses and therefore perform the method claimed. It was an ingenious way out of a conundrum, and one that would, in subsequent years, find its way in reasoning away the matter of whether a mental operation or abstract idea was in play. 

 

In each of the cases cited, the applicants disclosed hardware and as such would not seem to have addressed the matter of software directly, a subject that would be addressed directly in Gottschalk v. Benson. [11]  In 1972, the Benson Supreme Court addressed an invention described as being related to the processing of numerical data by a program and more particularly to the programmed conversion of binary-coded decimals into pure binary numbers. The court started off with a simplistic view of what a computer is:  “A digital computer …operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand”. [12] But, what had been the previous focus, “mental steps” was now the matter of “mathematical formula”. It justifiably went on to hold that a patent claim that “wholly pre-empts” a mathematical formula is too indefinite and overly broad. A patentable process should transform and reduce an article “to a different state or thing”. Merely generating an abstract numerical value or changing the form of a number or translating a number from one unit of counting to another does not alter anything and therefore is not patentable. Calculations have no causal effects.

 

Following Benson, the Parker v. Flook court held that a method for updating alarm limits during catalytic conversion processes, in which a mathematical formula represented the only novel feature, was not patentable, either.[13] This ruling seemed consistent with the standing notion that there had not been the requisite physical effect at the very point of invention, that being in this instance a mathematical computation. Recall that the Abrams and the Prater line of cases dealt with “mental steps” at the point of invention. The court made the point, as they did in Abrams, that novelty was absent. Here they observed that chemical processes involved in catalytic conversion were well known, as were the monitoring of process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and that automated processes used computers for monitoring. At the point of invention, novelty was missing.

 

In this case the Court reiterated that software by itself was nothing more than one of the excluded class of subject matter because standing alone it was nothing more or less than a mathematical formula, with a sequence of steps like long division. This sounds vaguely familiar to the “mental steps” doctrine. We might refer to such a series of steps as an algorithm whether the series involved electronic, chemical or mechanical or mathematical processes. Where the computation of the numerical values stands in isolation as the only novelty, in spite of those values bringing about a physical result, the claim will be rejected.

 

By the end of the 1970’s, inventors had a clear indication of the Court’s anti software position. It repeatedly found that computer programs did not produce a tangible result and therefore, they were unpatentable. Programs were processes that tended to use abstract mathematical formulas masquerading as algorithms. Importantly, there had been a long-standing acknowledgement that through alterable memory a computer produced a new, useful, nonobvious machine every time a new set of software was installed into the computer.[14] This might send the matter into a different direction, where software used in conjunction with a computer served to control an apparatus, which would bring about a physically transforming result such as energizing a lamp, ringing a bell, or firing-off a rocket ship. If the computer were to alter the world in some way, it might be patented. Note that here the court is implicitly acknowledging that computers either transform physical entities (they change the world) or they simply provide for abstract (algorithmic, mathematical) computation without altering nature or causing any physical effect.

 

Computation in and of itself has no intrinsic meaning, so we must provide an assigned meaning or subjective interpretation. Computations are always observer relative. No discernible distinction as to the form exists between the assignment of meaning to computation and thousands of other artifacts such as a book, a bed or a knife. We define something composed of pages containing writing, generally bound and inserted between a robust set of covers as a book. After all, it might also be used to kindle a fire or used as a doorstop and defined as such. We can say what we want about its function in the world, it has no inherent function, as does water to wet, or gravity to pull or charge to attract or repel other charges. An artificial device, whether a computer or software operating within a computer, as opposed to a natural artifact, has no inherent function. However, the Court would eventually determine that if the effect of software or an algorithm caused a tangible result, and the invention gave that result meaning, in the practical sense, the means used would not be grounds to deny patentability. This idea would stand the patent system on its head.

 

In 1981, Diamond v. Diehr [15], again focused the patent bar’s attention on the Supreme Court, when it held patentable an invention drawn to a claim containing a mathematical formula that implemented or applied it in a structure or a process (note the respective substance or the causal elements), which considered as a whole, performed a useful function; and that the subject constituted patentable subject matter regardless that several of its steps included the use of the formula and a programmed computer. The calculation was tied to a tangible result, removing some measure of its purely mental status or subjective interpretation. In this case, the process involved transforming uncured synthetic rubber into a modified substance or state to solve an industry-wide problem of "undercure" and "overcure”.  This multi-step process fell within patentable subject matter because the computer program (computation of a mathematical formula) was inclusive of a larger physical process that had a practical application. [16] The computer and its program changed something in the world.

 

Under the Diehr decision, query, whether the formula could be used by anyone independent of the process and then used to adjust the process to solve the same problem Diehr claims to have solved? This of course takes us back to the Prater line of cases. It would seem that the query demanded a yes answer. However, this particular formula likely had no application outside the process and therefore, patenting the process was tantamount to monopolizing the formula. The Diehr decision had a seismic effect on patenting software despite the Court’s attempt to confine its holding to computer programs that would apply mathematical formulas in a process.[17]

 

In spite of algorithms requiring subjective interpretation, by the early 1990’s court decisions held by implication that algorithms had a causal effect. The opinions reasoned that when the outcome of a series of mathematical statements produced a tangible result, then the machine involved in this consequence could be patented. They were inclined to permit patenting devices that were primarily computational,  if the result of the computation had a causal effect or in the words of the Court were physically transforming. This idea recognizes that some kinds of technology are created out of the rules that establish a tangible outcome. For example, a game does not exist until the rules are fashioned (e.g., one can not very well play chess until there are rules by which to play). We assign meaning apropos of what the technology does, and how it changes the world.

BUSINESS METHOD PATENT

 

Patents deal with the physical world, and therefore owning a patent permits the monopolization of physical artifacts and processes having the inventive features it claims. The inventions may be both ontologically objective (having observer-independent features such as a steel shaft) and ontologically subjective (used as a common nail). Note that function is always ontologically subjective and therefore observer-dependent. As described, our nail is epistemically objective because it contains observer independent features. However, when the very point of invention is a physical event that only symbolizes what something means, much of the epistemic objectivity is lost. Money, contracts, calculations, and states of affairs (e.g., games and business methods) are but a few of an unending list of such items. Here we invent symbols that stand to represent something specified. We utilize an essential feature of an instrument (in a contract: rights, duties, and obligations) or a result of some logical process (a computer output) that has meaning in a context generally accepted by a particular group, but not necessarily universally accepted.

 

That having been said, business method patents in one form or another have existed from the beginnings of the patent Office. Appendix A lists the more important business related inventions from the time the Patent Office opened for business in 1790. However, it was not until 1995 that the Patent Office would clearly state that: “United States patent law does not support the application of a "technical aspect" or "technological arts" requirement. Title 35 of the United States Code does not recite, explicitly or implicitly, that inventions must be within the "technological arts" to be patentable. Section 101 of Title 35 recites that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor…” Accordingly, while an invention must be "new" and "useful," there is no statutory requirement that it fit within a category of "technological arts."[1]

 

As is apparent from the list, long before the electronic computer came into existence, patents were filed on many novel business inventions. Computers began to play a major part in running business applications beginning the early fifties. Then during the late eighties as we indicated above, and certainly with the invention of the Internet, we had begun to see computers running entire business lines. In 1998, the Supreme Court extended the useful or practical application notion to software that was integral to methods of doing business.[2] The USPTO also promulgated guidelines for drafting business methods. [3]

 

Signature Financial Group, Inc. is assignee of a patent  “Data Processing System for Hub and Spoke Financial Services Configuration”. [4] The patent generally teaches a data processing system for implementing an investment structure, which was developed for use in Signature's business as an administrator and accounting agent for mutual funds. In essence, the computer system facilitates a structure whereby mutual funds (Spokes) pool their assets in an investment portfolio (Hub) organized as a partnership. This investment configuration provides the administrator of a mutual fund with the advantageous combination of economies of scale in administering investments coupled with the tax advantages of a partnership.

 

Signature Financial and State Street Bank & Trust Co. were competitors, each in the business of acting as custodians and accounting agents for multi-tiered partnership fund financial services. After the patent issued in 1993, State Street Bank tried negotiating with Signature for a license to use the system described in the patent. [5] When negotiations broke down, State Street brought a declaratory judgment action asserting invalidity and no infringement of the patent. Following the initiation of the lawsuit it then filed a motion for partial summary judgment of patent invalidity for failure to claim statutory subject matter. It argued that the patent was on a method of doing business. State Street prevailed in the lower court, but on appeal the court reversed and ruled that Signature Financial’s business methods were within the ambit of the patent statute.[6] It sounded its mantra, that mathematical algorithms are patentable if they produce “useful, concrete and tangible result.” [7]

 

As in the predecessor cases, Arrhythmia and Alappat, Signature’s production of a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and subsequent trades constituted "a useful, concrete and tangible result". Essentially, the court believed that this was no different from a “smooth wave form” or from the “condition of a patient’s heart”. .[8]

 

At some point it became apparent to the court that nearly every engineering process, whether electronic, chemical or mechanical involves an algorithm. Perhaps this happened as early as Diehr, who can say when an institution can be said to understand something. With the announcement that business methods were patentable, the debate that had centered on the algorithm and whether mathematical abstractions were patentable died out. Inventors of software might find a receptive patent examiner if they carefully laid out the idea in a flow chart and included an obligatory reference to a computer in the claims. In regards to U.S. patent law, the long brain tease was over! Nonetheless, much of  the world would still regard business methods as outside the mainstream of patent protection.[9]

 

Despite the new latitude that inventions continue to enjoy after State Street Bank, processes that consist solely of the manipulation of abstract ideas will not pass muster at the patent Office. But, novel claims drawn to software or computer system algorithms have been opened to patent protection—and, in a profound sense a class of mathematical ideas, albeit embodied in the abstraction of a computer program, have been removed from the intellectual commons.

 

State Street Bank paved the way for a new way of looking at business methods—not merely a new technology for doing business, but as new road lined with intellectual property protection. [10] In AT&T v. Excel the CAFC interpreted the rules created by State Street and Alappat to extend to process claims for a method of inserting data into a long distance call record in order to enable billing of a telephone call. [11] State Street and Alappat claims were drawn to structure, but clearly AT&T process claims were drawn to information exchange. [12] Patent protection extends routinely to data processing systems that comprise the business models for insurance underwriting and claims processing, health care management, online banking, billing and collection, stocks and bond trading, airline, auto and train reservation systems and postage dispensing.

 

Today the buzzwords are supply chain economics, centralized sales fulfillment, and one-stop web shopping systems. Business method patents are institutional phenomena. Unlike molecules, neither software nor business methods are comprised of objects that have intrinsic properties or meaning. This latter property should surprise no one; since inventions do not have intrinsic meaning they have assigned meaning. What is surprising to some is that inventions were once thought the province of tangible objects that were functional in virtue of their physical properties. As such the world knew it did not have to depend on abstract interpretation, but the epistemic objectivity inherent in such objects.

 

Business methods are not created from observer-independent artifacts, as are chairs composed of wood, metal and cloth. In other words, they have assigned functions in virtue of their social status. They represent constitutive rules that control antecedent behavior transforming into an institutional and social reality. Tied to every business method are rules that translate into cultural, economic and teleological considerations that property interests further confound. Granting monopoly status, through the patent grant, to these kinds of artifacts deeply affects our traditional realities.

 

The Patent Office also has had its insecurities over improvidently issuing business method patents that later create an uproar in the private sector.[13] Examining and issuing patents in the realm of software and business methods has not been without its difficulties. Unlike the more traditional arts there is a relative dearth of published art that is accessible to the examiner. In 2000 Under Secretary Dickinson called for several initiatives to improve the offices handling of  business method patents. The Patent Office initiated a second level review of all potential allowances in class 705. Under this program examiners must submit what they regards as allowable claims to a board that reviews the prior art used, the breadth of the claims and any other factors that may bear on allowance. One such initiative was to reach out to industry for submission of their prior art and expertise. Recently, the Patent Office announced that it will begin reviewing prior art software and business methods over the Internet using non governmental industry and academic experts. The experts will chose the nominated information and the top 10 items will be passed on to the examiner, who will examine the application otherwise in the normal course.

 

 

Undoubtedly the tensions among diverse interests will continue to influence social, legal and economic interests as well as engineering and scientific progress. However, without critical consideration of the divide between things that belong to the classes of ontologically objective, ontologically subjective, epistemically objective, and epistemically subjective, we risk confounding nature, abstract ideas, and social constructs, and placing off-limits products and processes that under historical considerations might have inured to the benefit of the commons.

 

Introduction to an Ontology of Intellectual Property

Joseph Carvalko, Jr.

 

The SciTech Lawyer SUMMER 2005

 

Science and technology lawyers deal with a variety of matters that invariably implicate invention, engineering, science, and discovery. In many instances the lawyer must see the issues through the eyes of the inventor or the scientist and overlay a wide range of legal considerations, such as patent law, torts, contract, and countless statutes that regulate the subject. Although one would think that a common language is spoken among science and technology lawyers, we might be surprised to learn that a considerable difference in fundamental ideas and concepts exists. An ontology of intellectual property law may begin to stimulate a dialogue to help bring about a confluence of concepts and definitions.

 

Intellectual property (IP) has in common the elements of novelty and creativity and, precisely because it offers something new to the world, it often alters our social order. This is especially true with discoveries and inventions that (through a system of according ownership through the patent system) restrict access to knowledge, lifesaving products, and countless valuable economic processes. Do the mechanisms by which we grant the patent monopoly remain relatively fixed or change depending on the state of technological development? We might stand a better chance of answering this question by looking at invention not strictly through the lens of the patent law, but rather through the lens of ontology.

 

For the purposes of this article an invention refers to new and novel associations, typically collections and assemblages of objects, processes, rules, and states of affairs. Inventions have the further property that they perform functions as specified by a conscious agent, and those functions operate in  accordance with an inventive feature. These limitations exclude from the class of inventive things natural causal processes, abstract ideas, or scientific theories. Although inventive features exclude natural processes, inventions exist within the framework of things that are intrinsic to nature. A stone, which has mass and volume (intrinsic to nature), remains an artifact subject to gravity, but if I were to taper one portion to a point, as resembles an arrowhead, it now has a feature that I might use as a tool or weapon. According to our manner of defining an invention, both the inventive feature and the associated natural part, each has tangibility and an associated status or what I will refer to as a state or state of affairs. The arrowhead, for example, exists in several states, the first in its tapered form and the second in that it may be situated at rest or moving toward its intended target. Inventions have traditionally formed the bridge between objects whose meaning we have assigned by virtue of physical features and a system of utility (e.g., a bathtub has a form or shape able to contain water).This characterization would exclude scientific theories and mathematical systems, because both are nonphysical.  The application we assign to an invention (e.g., a concavity for holding X gallons of bath water and an individual) are in the eyes of the beholder (observer-relative).The new application creates a new entity in the world. Inventive entities as such are ontologically subjective, because their existence depends upon someone assigning a function or a purpose to them. Nevertheless, certain objects, such as the bathtub, have a high degree of objectivity, because a judgment about the fact that the thing is an artifact for doing X (in our example, containing water and an individual) does not depend on attitudes, but upon objective facts about what sufficiently holds its contents. Therefore, we would consider the fact about this essential feature epistemically objective. However, with increasing frequency, policy makers and judges may be admitting into the traditional class of things referred to as invention objects whose meaning we assign by virtue of the symbolic features relative to a commercial undertaking.  Such is the case with business and computer methods that at

bottom are mathematical systems.

 

Quantum Society: Molecules, Metals, and Mammals

 

Moving conceptually from the material world to a socially constructed world requires a bit of epistemology and ontology to explain .2  John Searle suggested that we join the world of things (ideas, products, processes) through a social construct comprised of collective intentionality, constitutive rules, and the assignment of meaning. With an alteration to fit my scheme of presenting IP as one of these points of contact, I have accepted the premise that IP constitutes a social construct because it fulfills the conditions of the formula laid down by Searle. Let us begin, as did Searle, by observing that we live in a world and perhaps a universe that behaves in accordance with quantum mechanics, the most widely accepted theory of physics to date. Organized, yet chaotic fields of force pervade all things. Humans as expressions of atoms, molecules, and higher order materiality experience these so-called fields of force in both a biological form and a social state of affairs. I will often refer to this physical modality as molecules, metals, and mammals, but I really mean everything physical including humans. The physical world organizes itself into larger units we call systems. From a phenomenological viewpoint, systems are sets of causal associations. At a deeper level, the physical world merely obeys the laws of physics, such as postulated by the fundamental laws having to do with conservation of energy and entropy.

 

Scientists have usefully bifurcated natural systems according to certain properties of the elements from which they are composed: inorganic and organic. Systems composed of either type of element behave according to fundamental physical laws, but the latter also behave according to observed laws of evolution. The observable features include combinations of morphology, physical properties (density, electrochemical, and thermodynamic states) and in some rare instance, consciousness. Consciousness produces the observable effect of intentionality and the ability to represent incorporeal states of affairs. These effects cause humans to describe the physical world in terms permitted by such regimens as the scientific method: observable, quantifiable phenomena that behave in accordance with scientific laws. Typically, the lines of subject matter dealt with in the context of the scientific method are intrinsic to nature. These latter effects also cause humans to create, observe, and to explicate the world in terms that are not always subject to the scientific method: the everyday life of expressing who, what, when, how, and where. Through the exercise of intentionality, we construct nonphysical social systems for our welfare, security, and propagation. The civilizations we create embody communities, governance, legal systems, medical access, economic exchanges, and inventions to make progress commensurate with an evolutionary imperative. We create social systems for human purposes such as survival, altruism, power, affiliation, and achievement. Unlike molecules, metals, and mammals in fields of force, social systems are matters under the direct influence of our intentionality. And therefore, they exist in all respects by incorporeal states of affairs or states of consciousness. Intentionality by itself is insufficient to organize the vast complexities of society and additionally requires a system of rules and the assignment of meaning to the artifacts that play a pivotal role in daily life. A legal system that apportions property rights comprises but one form of a social construct.

 

Putting Things into Place

 

In patent law we generally refer to elements and functional relationships as creating a unity having aspects of physical state, topological configuration, physical attribute, morphological feature, connection, or causal effect. Suppose I invent a doorstop in the shape of a cylinder three inches long and one-half inch in diameter, (a) made of brass and consisting of on one end (b) a fastened rubber bumper and on the other end (c) an integral tapered screw that fastens the doorstop to a wall. Assume that the invention (synonymous with the intellectual property object) comprises the combination of a, b, and c. The doorstop is the physical device, but the intellectual property is the unity comprised of the combination of elements a, b, and c. Intellectual property separates into two categories. The first category (ontological) delineates the existence and the properties that attach to a certain kind of material object. In our example the entities: brass element, doorstop, rubber bumper, and screw are the kinds of categories of things with which patents typically deal. The second category (jurisprudential) comprises a legal system that deals with a class of rights, powers, and interests that attach to the material object. However, because this second category deals with objects in a juridical way, it implies that social aims such as morality are part of the blend. Material objects are constructs of sensory representations. Intellectual properties are the external conditions in material objects that impart distinct observable (perceptible) properties. Again, we have a divide in that material objects can be observed to have distinct physically measurable properties on the one hand and to have legally recognized expressive (in the case of copyright) or inventive properties on the other hand. In respect of the physical properties, we assign a use function. In respect to the legal function, we assign a status function. As new forms of technology appear in our midst, the law creates new forms of intellectual property. However, within its various denominations the law recognizes essentially only five categories of intellectual property: ideas, products, processes, names, and expressions.3 And, except for the “idea” generally and “names” associated with goodwill, most other forms of intellectual property rights embed themselves in tangible artifacts. Patent law particularly deals with a type of personal property that flows directly from the type of artifact instantiated.

 

A right in property exists as a social convention in that it simply represents our collective intention to deal with the related object according to a set of rules. For example, one might have patented an invention (referring here to the thing itself) where the rights to the invention have been spelled out in a document we refer to as a patent or more formally Letters Patent. However, the actual invention embodies a process (a series of physical changes), an article of manufacture, a machine, or a composition of matter. Ownership in the patent permits the holder to exclude others from making, using, or selling the underlying claimed artifact or process. Patents deal with the physical world, and therefore owning a patent permits the monopolization of physical artifacts and processes having the inventive features it claims. The inventions may be both ontologically objective (having

observer-independent features such as a steel shaft) and ontologically subjective (used as a common nail). Note that function is always ontologically subjective and therefore observer-dependent .4 As described, our nail is epistemically objective because it contains observer independent features. However, when the very point of invention is a physical event that only symbolizes what something means, much of the epistemic objectivity is lost. Money, contracts, calculations, and states of affairs (e.g., games and business methods) are but a few of an unending list of such items. Here we invent symbols that stand to represent something specified. We utilize an essential feature of an instrument (in a contract: rights, duties, and obligations) or a result of some logical process (a computer output) that has meaning in a context generally accepted by a particular group, but not necessarily universally accepted.

 

During the last 25 years there has been an ever-increasing acceptance of the proposition that certain kinds of knowledge, some based in mathematics and others based in biology, deserve wider intellectual property protection. The most significant example has been the court’s allowance of newer life forms (albeit created from human ingenuity) and business method patents (mathematical computations in the form of programs executed on a computer).To the chagrin of some in the scientific community, this represents a decided encroachment on subject matter that was once regarded as public information, creating what some predict are obstacles to progress. 5 Undoubtedly the tensions among diverse interests will continue to influence the economy, scientific progress, and moral reaction. However, without critical consideration of the divide between things that belong to the classes of ontologically objective, ontologically subjective, epistemically objective, and epistemically subjective, we risk confounding nature, abstract ideas, and social constructs, and placing off-limits products and processes that under historical considerations might have inured to the benefit of the commons.

 

Endnotes

1. See U.S. PATENT AND TRADEMARK OFFICE,MANUAL OF PROCEDURE, PATENTABLE

SUBJECT MATTER – COMPUTER-RELATED INVENTIONS Ch. 2106, Sec. IV.B.1. et seq.

2. John Searle suggested the idea that social constructs are tied to our physical being. See JOHN R. SEARLE,THE CONSTRUCTION OF SOCIAL REALITY (Free Press, 1995).

3. DAVID R. KOEPSELL,THE ONTOLOGY OF CYBERSPACE (Open Court Pub., 2000).

4. In in re Lowry, 32 F.3d 1579 (Fed. Cir. 1994), regarding data structure stored in a computer memory, the court held that if the claimed invention required the information to be processed by a machine and not

through human consciousness, it would be patentable subject matter.

5. See LAWRENCE LESSIG, FUTURE OF IDEAS:THE FATE OF THE COMMONS IN A

CONNECTEDWORLD (Random House, 2002).

Catalysts in Fuel Purification

 

Joseph R. Carvalko

Copyright, 2008

 

 

Reliable internal combustion engines and power generation performance require fuels free from contaminants such as water and organic and inorganic solids. For example, a diesel fuel that contains water can freeze fuel lines when ambient temperatures drop below 32 degrees Fahrenheit. Fuel that contains water also reduces the efficiency of engine performance since at least some energy dissipates in the process of heating the water and not in combustion. In many instances water particulate contribute to engine failure, specifically in engines that utilize dispensing nozzles and injectors to atomize fuel for the combustion chambers. Solid particulate in fuel also decreases the performance and increases the wear due to frictional forces on the internal engine parts. Diesel driven engines, generators and fuel oil burners represent but a few of the products that benefit from devices that remove water and other constituents in petroleum fuels.  

 

Many devices exist for separating fuel from foreign constituents; however, most of these are expensive and rely on filter media and other moving components. For example, marine power vessel applications use centrifugal separators for improving the quality of fuel oils. A centrifuge is a machine that subjects fuel and its foreign constituents to a centrifugal force. A continuous centrifuge passes fuel and its foreign constituents in a steady stream through part of the centrifuge apparatus where it is subjected to centrifugal forces and continuously discharges separated components. With little difference in principles of operation these machines perform the function of clarifying fuel, separating fuel constituents and purifying fuel so as to remove water, organic matter and solids from the fuel.

Centrifuges having moving parts are expensive to build and require costly maintenance, yet the larger marine vessels require cleansing of the less costly low-grade fuels to a degree that justifies the expense. For less demanding applications there are several products that offer some level of separation based on conventional filtration made of fine mesh or paper. These are lower cost apparatuses that require frequent filter changes. Although this invention is drawn to any centrifuge, another solution, which is addressed below, does not contain any moving parts or removable filters, but relies on the forces produced by external fuel pumps in combination with various plates, baffles, weirs and ports as fuel passes through the fuel system.

The advantages of having purified the fuel are to reduce wear on moving parts, reduce carbon deposits, and improve exhaust emissions as well as improve combustion efficiency and performance. The purification of the fuel can be especially beneficial, if the fuel is to be brought into contact with a catalyst, since contaminates tend to eventually coat the catalysts and cause them to become ineffective.

Petroleum is a complex liquid solution of gases, liquids and solids comprised of long molecular hydrocarbon chains. The size of the molecules determine the grade of the fuel which ranges from: gas, having between one and five carbon atoms per molecule, to the usual fuel oils, having between five and 18 carbon atoms per molecule to paraffin and pitch or asphalt which number as many as 20 or more carbon atoms per molecule. In fact, the crude oil remaining after the volatile hydrocarbons have been removed are mainly comprised of paraffin and asphalt. These heavier components are generally undesirable in a mixture designed for combustion engines.

Precombustion treatment catalysts have been show to break down the heavier undesirable long chain hydrocarbon chains into smaller chains with greater combustion qualities. These may take the form of liquid or solid formed catalysts that interact with the fuel. At least one class of catalysts referred to as oxidation catalysts can provide improved combustibility reactions at ambient temperatures.

 Traditional oxidation catalysts are of two general types: noble metals and non-precious metals. some combinations of the two general types also have been found to exhibit low temperature catalytic activity. Commercially available catalysts manufactured from rhenium and manganese, heterogeneous metal alloys comprised of tin, antimony, lead and mercury, and others containing soluble platinum group metal compounds have shown to improve the performance of the combustion engine.

When carbon-containing fuels, such as gasoline and diesel fuel oil are burned in the presence of air, nearly all the carbon combines with oxygen to form carbon dioxide, CO.sub.2, but amounts of CO carbon monoxide form, as well, depending on the air available. Carbon monoxides are not desirable in the combustion process. In platinized tin-oxide catalysts the material catalyzes as a result of a reaction of the carbon monoxide CO and the dioxide molecule O.sub.2. If the tin surface is exposed to a mixture of CO and O.sub.2, CO quickly covers it, since CO molecules absorb on vacant surface sites. The presence of tin-oxide alters this affect since only the O.sub.2 molecule is absorbed, whereas the CO does not. Therefore it is critical that the fuel be as free from foreign constituents such as large amounts of water, carbons, sediment, oxides and non combustion organic solids as possible. It stands to reason that catalyst type treatments are more efficient when the reaction is effectuated is free from all but trace amounts of water (which incidentally are useful in some catalytic reactions) and other impurities. By combining the features of a fuel purifier with a catalyst the benefits to a combustion engine are greatly enhanced.

Catheters for Urinary Incontinence (From a description of a Carvalko patent)

 

Joseph R. Carvalko

Copyright, 2008

 

It is well recognized in the field of Urology that individuals may during the course of their lives  lose control of their urinary function. This loss of control may be temporary or permanent, depending upon the cause of the loss of urinary function. Temporary loss may be caused by a disease entity, which is curable by medical or surgical treatment, whereas permanent loss of control may be caused by an incurable disease entity or physical trauma resulting in partial or total paralysis of the muscles that cause normal urination. The bladder is a dome shaped container with muscular walls and which accepts urine from the kidneys for temporary storage. During normal voluntary urination, the muscles in the bladder wall contract and simultaneously the sphincter muscle surrounding the opening in the bladder that communicates with the urethra relaxes so that the urine stored in the bladder is released into the urethra and expelled from the body.

The causes for loss of normal voluntary control of the urination process are manifold and the consequences are indeed severe. If urine cannot be periodically expelled from the bladder, the urine becomes stagnant and bacteria multiply at an exceedingly rapid rate, resulting in infection of the bladder. Chemical changes in the urine due to the infection cause painful urination and can also cause general debilitation of health. If, after infection occurs, the urine retention is still permitted to continue for any considerable length of time beyond normal voluntary urination frequency, ascending infection can occur, that is the infection in the bladder spreads to the ureters (a muscular duct or tube conveying the urine from a kidney to the bladder or cloaca) and to the kidneys, thereby causing still more serious consequences, such as failure of one or both of the kidneys to function. If the kidneys do not function to cleanse the blood of impurities and form urine, uremia results and death occurs in the absence of the availability of recently developed artificial kidney machines. If, on the other hand, the kidneys continue to function and fill the non-draining bladder with urine, the bladder can burst, thereby emptying the bacteria laden urine into the abdominal cavity. The usual result of this is peritonitis, which is an inflammation of the peritoneum, the membrane that lines the abdominal cavity, and the results of inflammation of this membrane are always serious. The time between the occurrence of acute peritonitis and death may be only a matter of a few hours to a few days depending upon the severity of the infection. Septicemia, an infection of the blood, is another serious consequence of excessive retention of urine in the bladder, since the bacteria in the bladder, ureters and kidneys invades the blood through the minute blood capillaries in these organs.

Obviously other complications, bodily disorders and dysfunctions and serious consequences, too numerous to mention herein, can result from failure of proper urination. It is obvious that constant periodic drainage of the bladder to eliminate urine and other body waste material is essential not only to good health but to maintaining life itself.

Techniques of treatment for loss of normal voluntary control of the urination process are relatively few in number. Depending on the nature of the cause, a super-pubic technique involving surgery may eliminate the drainage problem in some circumstances. Since surgery is involved, this treatment is traumatic and severe, and is utilized only when absolutely necessary. Drug therapy is effective in some cases to promote drainage of the bladder, but due to the relatively few causes of loss of voluntary control which will respond to drugs and the ever presence of undesirable side effects, drug therapy is considered to be a relatively ineffective method of dealing with the problem.

2. Necessity for Practice of Invention

Since the loss of voluntary control over the urinary function is typically a secondary effect caused either by disease or trauma, it has become a well established medical practice to relieve the urinary drainage problem mechanically by means of the process of catheterization. If the primary cause of the loss of voluntary urination control is from a curable disease, the catheterization process is maintained on a temporary basis only for so long as necessary until voluntary control returns. If the cause of loss of control is permanent, as in the case of paralysis such as with paraplegics and quadriplegics, the catheterization process must be maintained on a permanent basis in order to maintain life.

In the catheterization process, a tube or catheter is inserted into and through the urethra until the remote or distal end is located within the bladder, usually being disposed just past the sphincter muscle at the juncture of the bladder with the urethra. The near or proximal end of the tube remains outside of the body and there is thus provided a path or channel through which urine in the bladder can drain as the need arises. Once a catheter has been passed through the urethra and inserted into the bladder, it is generally necessary, in connection with the disease and trauma conditions described above, to have the catheter retained in the urinary tract with the distal end of the catheter in the bladder, such retention being in the order of several days to several weeks without removal. Catheters which are designed for use a function are called urinary retention catheters and are typically provided by including an inflatable balloon at the distal end of the catheter which is deflated during insertion of the catheter and which is inflated by passing a fluid, typically water or saline solution through a passage within the catheter, called an inflation lumen. Thereafter, fluid from the bladder drains through the main passage of the catheter, called the drainage lumen.

3. Problems of Catheterization

Inserting a catheter into the urethra can be a painful and traumatic experience, the degree of pain and trauma depending on the construction of the catheter being inserted, the technique for inserting it, and the experience and the skill of the person performing the insertion whether that person is the doctor or other individual. Since the designers of catheters have no control over the last named characteristic, the present invention has been developed with the first two characteristics principally in mind, but also with consideration for the fact that the catheter may on many occasions be inserted by other individuals who would not be as skilled as the doctor. The reason for possible pain and trauma is that the urethra, whether male or female, is a relatively tortuous tube of varying cross-sectional dimensions and is normally collapsed along most of its length. The upper portion of the urethra is provided with sphincters or valves which it enters the bladder neck. The female urethra is somewhat shorter and straighter than the male urethra but otherwise both are much the same. The urethra is a very delicate organ and cannot withstand any appreciable amount of lateral pressure against the urethral wall without causing some degree of rupture. Since the urethra has a high concentration of pain sensing nerve endings, any distortion, whether of change in size or shape, is very uncomfortable at the least and usually painful, and any trauma to the urethra is accompanied by a great deal of pain. It is not uncommon for the patient to have to be anesthetized in order to insert many common urinary catheters. In addition to the pain, bacteria in the urethra can enter the blood stream if the urethra is traumatized, with the same result discussed above in connection with rupture of the bladder.

Extensive research and development have been carried out over a long period of time in the design of catheters, and a large number of different catheter designs appear in the medical and patent literature. The reason for this is that design characteristics for urinary drainage catheters are highly conflicting from the standpoints of patient discomfort and functionalism. In order to reduce the probability of trauma and resulting pain to the urethra as well as discomfort to the patient during long periods of retention, a urinary drainage catheter should be as thin as possible, highly flexible and pliant, and have a soft rounded end. From the functional standpoint, on the other hand, the catheter must be of sufficiently thick and rigid construction that it will not buckle while being passed through the urethra, it should have as wide a drainage opening and lumen as possible to promote complete drainage and prevent clogging, and the end should be free and unobstructed in order to facilitate the use of the catheter as an aid to the insertion of diagnostic and treatment instrumentation into the bladder. Of great importance is the fact that a retention catheter must have an effective means for retaining the catheter in place in the bladder which will not obstruct either the flow of urine or substantially the complete drainage of urine therefrom, but at the same time has sufficient retaining capability that a patient, particularly a senile patient, cannot forcibly pull the catheter out of the bladder and into the urethra thereby causing extreme damage thereto. Further, any urinary drainage catheter must be formed of a material totally inert to the effects of urine and other waste materials, be capable of absolute sterilization, and be manufacturable to strict tolerances, in high volume and at low cost considering the disposable nature of the product. Still other criteria may be apparent to those skilled in the art.

4. The Prior Art

In view of the foregoing diverse criteria, the basic design of commercially available retention catheters has changed very little over the past half century, and the well known Foley retention catheter is almost universally used by doctors, hospitals, nursing homes, etc. to alleviate loss of voluntary bladder control U.S. Pat. Nos. 2,892,458; 2,936,761; 3,292,627 and 3,394,705 are mentioned as illustrating typical prior art catheters which are usually formed of relatively thick walled construction so as to be insertable without buckling, have a rounded solid tip to prevent trauma to the delicate lining of the urethra, and have side openings adjacent the tip to communicate the interior of the bladder with the drainage lumen. The prior art catheters also have an inflatable balloon portion beyond the drainage opening in order to retain the catheter in place. These catheters, and many more like them, are undesirable from the standpoint that considerable pain may be experienced in introducing a relatively wide, semi-rigid catheter into a relatively narrow urethra. Further, the small side openings can easily clog from clots of sediment material which collects in the bottom of the bladder. Still further, as a result of the solid tip, it is impossible to pass diagnostic or treatment instrumentation through the catheter for the purpose of inspecting or treating the interior of the bladder. The capability of inserting instrumentation through the catheter after it is in place is very important in the urological practice since prior treatment involves the use of anesthesia in order to insert steel tube instrumentation as has been the practice.

In U.S. Pat. No. 2,677,375, recognition was given to the desirability of removing the fixed rounded tip so as to provide a drainage opening adjacent the inflatable retention balloon. Strips are provided across the opening for engagement by an inserting stylet. This construction is disadvantageous in that the strips are likely to obstruct the passage of sediment clots and thus clog the drainage opening, and even more harmful is the fact that the insertion of such a blunt end as is apparent in this device is almost certain to cause considerable trauma to the delicate wall of the urethra. It is also apparent that it would be at least difficult, if not impossible, to pass instrumentation through this catheter in view of the strips across the open end. Such a device would be wholly unacceptable to the urological practitioner.

A significant aspect of the present invention is the provision of an improved stylet which is utilized both during insertion of the catheter through the urethral passage and thereafter as a cleaning implement. U.S. Pat. Nos. 2,118,631; 2,164,926 and 2,856,934 are cited as representative of prior art stylets which are utilized solely to assist in inserting the catheter, the first two being of the typical push rod type and the third being of the filiform type. Although the use of a stylet to insert the catheter obviates the problem of bucking of the catheter during insertion and thereby permits the catheter to have a relatively thin wall construction, the push rod type used in conjunction with a closed end catheter is undesirable from the standpoint that there is no way of accurately ascertaining when the end of the catheter enters the bladder because the stylet blocks the drainage opening or the drainage lumen or both. The filiform device is undesirable because of the possibility of injuring the delicate wall of the urethral passage during the insertion of the filiform unless great care is exercised because of the fact that the filiform is of necessity very thin and therefore must be relatively rigid and sharp nosed. Other disadvantages of this technique for inserting drainage catheters will be apparent to those skilled in the art.

Another significant improvement of the present invention is the novel construction of the inflatable retention balloon to cause the open end of the catheter to expand and widen, which assists in drainage and in retention. Some consideration has been given to this problem as evidenced by U.S. Pat. No. 2,892,458 mentioned above, as well as by U.S. Pat. Nos. 3,438,375 and 3,889,686. In the first patent, the balloon is constructed to be less inflatable adjacent the lateral drainage opening through the catheter wall so that the balloon cannot overlie and block the opening if the catheter tends to settle in the bladder or is pulled by the patient. In U.S. Pat. No. 3,438,375, the opposite theory is applied and the balloon is constructed to purposely overlie the lateral drainage but be spaced therefrom so that the delicate lining of the bladder cannot be drawn into the opening by sub-atmospheric pressure. In U.S. Pat. No. 3,889,686, a lateral opening is provided below the balloon as well as above so as to promote better drainage. All of these techniques have inherent disadvantages in that they present design problems which are difficult to overcome in manufacturing the catheter, they are not nearly as effective in practice as eliminating the lateral drainage opening altogether so that the inflation balloon presents no interference problem whatever, and they cannot function to allow movement of a stylet to indicate when the balloon is inflated because the rounded tip closes the longitudinal end of the drainage lumen.

Identifying Patterns In Electronic Data Structures (extract)

 

Joseph R. Carvalko

Copyright, 2008

 

  

Users of information technology deal with countless unwanted emails, unwanted text messages and crippling new viruses and worms every day. This largely unnecessary phenomenon decreases worker productivity and slows down important network applications. One of the most serious problems results from the ever increasing volume of spam. As such, recipients of email as well as the service providers offer various solutions to reduce its proliferation on the World Wide Web. However, as spam detection becomes more sophisticated, spammers invent new ways to circumvent detection. For example, methodology provides a centralized database for maintaining signatures of documents having identified attributes against which emails are compared. However, spammers now modify the content of their email either slightly or randomly such that the message itself may be intelligible, but it evades detection under various anti-spam filtering techniques.

 

Currently, at least 30 open relays dominate the world, bursting messages at different rates and different levels of structural variation. Because certain types of email mutate or evolve, as exemplified by spam, spam-filtering detection algorithms must constantly adjust to be effective. In the case of spam email, for example, the very nature of the spam corpus undergoes regime changes. Therefore, clustering optimality depends heavily on the nature of the body of the data (its corpus) and the changes it undergoes.

 

Document clustering and classification techniques provide for an overview or identification of a set of documents based upon criteria that amplifies or detects  patterns within its content. In some applications these techniques lead to filtering unwanted email and in other applications they lead to effective search and storage strategies. An identification strategy may for example divide documents into clusters so that the documents in a cluster are similar to one another and are less similar to documents in other clusters, based on a similarity measurement. One refers to the process of clustering and classification as labeling. In highly demanding applications, such as high traffic, labeling can greatly improve the efficiency of an enterprise, especially for storage and retrieval applications. However, the clustering and classification algorithms must be stable, fast, and efficient as they pertain to the electronic data on which they operate.

 

The objective of any effective document detection scheme identifies attributes common to a class of emails. A detection scheme might therefore key off a common element representative of spam, e-vites, or mailing lists. In plain words, given two electronic data streams associated with a document, a system needs to discriminate in some meaningful way how similar or close two messages are.

 

To work effectively as a detector for different categories of email, a classifier should strive to establish the parameters of a distance function (typically a metric that separates two classes of emails). Generally the choice of a metric is dictated by the choice of classifier or filter. In regards to filters, given two messages, X and X′, a system can generate electronic data streams or signature arrays, (f1, f2, . . . , fn) and (f′1, f′2, . . . , f′n ) where n is the number of filters.

 

Comparing these two data sets requires specification of a metric and a threshold for each filter in the set. Thus, for example, the two messages belong to the same spam class, if and only if all of the following conditions hold simultaneously:

d(f1, f′1 ) < τ1

d(f2, f′2 ) < τ 2

.

.

.

d(fn, f′n ) < τ n

 

where the τ n is the numerical threshold values suitably chosen for each of the filters and d represents a function of the distance between two filter values.

 

The Nilsimsa Signature (“NS”) method counts 3-gram occurrences with the same hash values in the message body of an email and serves as an example of one spam detection schema [see, http://ixazon.dynip.com/~cmeclax/nilsimsa.html]. NS ignores text mutations because they are deemed statistically irrelevant. Given a message, NS produces a sequence of 64 hexadecimal numbers. For instance, if NS consisted only of four bits, the distance between the two codes 1001 and 0001 would be 1 because only the first bits of the two signatures differ. An important aspect of NS is that changing the input text does not change all of the entries in the code. Small changes to the input text causes all of the entries in the code to change.

 

One method to detect spam creates a hash value referred to as MD5, which is found to be relatively ineffective as a means for identifying spam because once a message is changed slightly, the hash value changes significantly. Although these methods work effectively for identifying absolutely identical messages, the nature of spam detection evasion means that the senders of spam will continue to incorporate differences that will produce significantly different MD5 outcomes (a simple permutation of two letters in a “pure” message will render an MD5 check completely useless for purposes of spam detection).

 

Using several filters reduces false positives by subjecting email messages to more scrutiny. If each of its 64 values were considered a single filter, NS could be viewed as a set of filters. A metric might then be defined as the number of differing bits for each separate number. The drawback of such a method is that the distance thus defined cannot exceed four, because the numbers are hexadecimal. Each filter by itself is quite primitive. The method might be made more robust by increasing the radix as achieved through changing the algorithm or by joining adjacent filters into an overall larger filter and thus decreasing the number of filters.

 

In addition to deploying several filters, a problem persists in that it remains a requirement that thresholds be chosen. Unfortunately, no systematic approach exists to choose the threshold even for one filter other than through an heuristic process of visual inspection of how emails are tagged as similar to one another and through trial and error as to what produces an acceptable detection of documents having identified attributes. When several filter values must be taken into account, filtering depends on all the thresholds and, therefore, finding the optimal thresholds through such a trial and error process presents a formidable undertaking. Three solutions are possible: (1) hard-code the thresholds into the software; (2) perform optimization checks manually and regularly; and/or (3) perform optimization automatically.

 

To succeed with the first solution one has to solve the optimization problem based on the current spam trends. However, even if it were to succeed in filtering a certain type of email today, no guarantee exists that it will be adequate tomorrow. The second solution may prove laborious.

           

WLAN and the IEEE 802.1x Client

 

Joseph R. Carvalko

Copyright, 2008

 

            Advancements in WLAN technology have resulted in publicly accessible wireless communication at rest stops, cafes, libraries and similar public facilities referred to a “hot spots”.  Public hot spots offer mobile communication device users access to a private data network, such as a corporate intranet, or a public data network such as the Internet, peer-to-peer communication and live wireless TV broadcasting. The relatively low cost to implement and operate a public WLAN, as well as the available high bandwidth (usually in excess of 10 Megabits/second) makes the public WLAN an ideal access mechanism, through which, mobile wireless communications device users can exchange packets with an external entity. However as will be discussed below, such open deployment may compromise security unless adequate means for identification and authentication exists.

When a user attempts to access service within a public WLAN coverage area, the WLAN first authenticates and authorizes user access, prior to granting network access.  After authentication, the public WLAN opens a secure data channel to the mobile communications device to protect the privacy of data passing between the WLAN and the device.  Presently, many manufacturers of WLAN equipment have adopted the IEEE 802.1x protocol for deployed equipment.  Hence, the predominant authentication mechanism for WLANs utilize this protocol, which can be difficult to reconfigure for the average user.

The IEEE 802.1x protocol was designed with private LAN access as its usage model.  Hence, the IEEE 802.1x protocol does not provide certain features that would improve the security in a public WLAN environment. For example IEEE 802.1x clients normally require complex configurations as by way of example, authentication methods, authentication server domain names, user names and passwords, that are complex and therefore can be difficult for users to understand. If a user attempts to access a new public hot spot, one or more of the parameters required for access user’s device may require reconfiguration.

In the current web browser based authentication method, a mobile terminal communicates with a local or a remote authentication server, using a web browser operating with the Hyper Text Transfer Protocol Secured Sockets (HTTPS) protocol to insure that anyone on the path between the mobile terminal and the authentication server cannot trespass upon or steal confidential user information. However, the only information the authentication server has related to the mobile terminal is its IP address.

 FUEL PURIFICATION TECHNOLOGY

 

Joseph R. Carvalko

Copyright, 2008

 

 

Keeping fuel clean while it stagnates in a storage tank is a constant challenge and managing this problem takes a combination of technologies from centrifuges to water strippers, fuel/water separators, media filtration, mesh screens and chemicals.  

 

For larger ships, its not uncommon for fuel to remain in storage or service tanks for weeks and for sea water to be carried as ballast in emptied fuel tanks. Bunkering, transport, and long storage periods coupled with the intentional introduction of water, create the perfect environment for slimy algae which can clog filters, injector pumps and starts a chain of events which may lead to catastrophic engine failure. The particles of contamination, whether dirt or water, upset an engine's clockwork and can blow injector tips and cause immediate cylinder scoring. 

 

A best engineered solution for fuel purification considers both cost and performance. Electromechanical centrifuges are a popular solution, for purifying fuels in the light crude oil and heavy fuel oils category because these are only partly refined before delivery to the ship’s tanks. But, distillates do not need the same level of purification, because they are already highly refined.  Electromechanical centrifuges may not be the most cost efficient here, because distillates only require that contaminates introduced in transport or during storage, need removal.

 

Especially for distillate fuels such as No. 2 Diesel,  ALXZKA has a system to eliminate water and sediment by combining centrifugal fuel flow with a sedimenter technology. Unlike their electomechanical centrifugal counterparts, these products contain no filter media or moving parts, except for the fuel pump needed to keep the fuel flowing. These products have the advantages of: low investment cost, low maintenance costs, high reliability, and the ability to employ cross connected links, permitting various real time configurations to suit a ship_s immediate purification needs.

 

For example, the ALXZKA AFP 50 a four unit manifold configuration can  provide supply tank filtration throughputs exceeding 6000 gallons every hour for a fraction of the cost of the electromechanical centrifuge alternative. Typically an application uses more than one AFP _ purifier so you have a redundant system  which improves system reliability. When the electromechanical centrifuge breaks down, purification stops until its repaired.

 

The ALXZKA AFP system will purify distillate grade diesel fuels by removing essentially 99.9% of all free water and most sediment in excess of 70 microns. The balance of water and sediment is removed by typical downstream primary and secondary filters. Larger units can provide purification at higher fuel flow rates. The tradeoff  is size and weight.  In a recirculation mode, filtering efficiency improves with each recirculation cycle. This is true for both water and sediment.

 

The  ALXZKA  AFP technology offers significant purification versatility when (1) transferring fuel from dock‑side fuel supplies to the ship_s storage tanks; (2) recirculating fuel between the storage tanks; and (3) transferring fuel between the storage tanks and the service or day tanks. Some typical examples are as follows: 

 

1. In its simplest configuration, one or more storage tanks are selected, through one or more of the banks of  gate valves controlled either manually or semi automatically through a programmed logic controller (PLC), to be pumped through one or more selected ALXZKA AFP _ purifying units. If a high rate of decontamination is required, then generally all four units will be in operation. A typical flow is shown in the Figure.

2. In another mode, one or more purifying units are dedicated to purifying fuel in the storage tanks and the balance relegated to transferring fuel from a selected storage tank to a service tank.

3. In yet another mode, all of the AFP purifying units transfer fuel from a selected

 storage tank to one or both of the service tanks simultaneously.

4. If the ship is taking on fuel, the system can strip water in the process. Fuel flow can

exceed 100 or even 200 gallons per minute so all four purifying units will be in operation since it is

assumed the flow rate will be at maximum.

5. One or more of  AFP purifiers can be dedicated to recirculate either or both service tanks.

 

All modes can be switched through corresponding 2‑way diaphragm valves operating under the control of a PLC. The control for such a system resides in a main switching panel, resident in the engine room or some other convenient location.  This optional control system eliminates the

necessity for the crew to manually change modes. In the remote control mode it is possible to control the flow rates during different modes of operation.

 

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Underwriting Insurance for a Genetic Marker

Joseph R. Carvalko

Copyright, 2008

 

 

As insurance companies attempt to distinguish themselves from competitors they look for product niches and innovative ways of offering subpopulations various types of insurance. For example, an insurance company may offer insurance based upon mortality table actuarial life expectancies plus life style factors or specific life impairments. However, actuarial practice does not generally take into consideration medical breakthroughs which can alter the assessment of risk up or down. On the other hand newer medical treatments are extending life and specific medical diagnostic break through may affect the writing of insurance policies, either through the careful application of actuarial statistics or other such non actuarial methods that may be employed by insurance companies.  In the future, mortality tables on life expectancy may be more accurately determined as a consequence of a particular medical break through rather than existing factors such as sex, age and geography. 

 

The latest trends in medical science deal with so-called disease gene discoveries. These discoveries generally claim a gene marker or sequence associated with disease or risk of disease. In fact the first gene sequence claim was filed on behalf of the U.S. National Institutes of Health in 1991.  In addition to claims covering uses of the chemical sequences, these patents also often claim methods of diagnosis by identifying in a specific patient, the disclosed genetic alleles, mutations, or polymorphisms that may in some circumstance reveal factors relevant to life expectancy.

 

In the 1980’s Dr. Curt Civin, a physician and professor at Johns Hopkins University discovered a marker referred to as an antigen, which he named My-10. The antigen appears on the surface of immature stem cells but not on the surface of mature cells. As indicated, this discovery lead to a method of generating relatively pure suspensions of immature blood cells known as "stem" cells and monoclonal antibodies used to produce such suspensions. The invention allowed for the preparation of a cell population useful for stem cell transplantation that is enriched in immature marrow cells, substantially free of mature myeloid and lymphoid cells and thus improving the patient’s likelihood of recovery after a transplant.

 

In U.S. Patent 5,777,093 (1998) Shiloh disclosed a technique directed to nucleic acids encoding mutant forms of the gene that causes ataxi-telangiectasia a genetic disease that affects the skin, nervous system, and immune. The cloning of this gene allows for the development of diagnostic methods and drug treatments. In fact recently a team of researchers at Massachusetts General Hospital have developed predictive genomics tests that are advancing to the forefront in cancer detection and treatment. These tests measure activity in breast cancer genes and will predict wither the patient will respond to the cancer fighting drug tamoxifen or to alternative drugs such as aromatase inhibitors. The newest tests can be analogized to molecular fingerprints that foretell the likelihood of matastasis or responsiveness to chemotherapy and might suggest other treatment options.

 

Currently, genomic tests are expensive, ranging in the $2,000 to $5,000 to perform. Most insurance carries do not indemnify for such testing, however, because the predictive outcome potentials are so vast, insurance companies may want to provide insurance converages on the basis of such test.

 

For a twentieth century that saw the effects of the radio, airplane, computer and the internet, the implications of human embryonic stem cell technology are as profound as any. However, notably such invention also touches upon every facet of an economy from the non medical elements of the economics of new industries to underwriting insurance. 

 

Insurance Hybrids

 

Joseph R. Carvalko

Copyright, 2008

 

 

An annuity is a contract between an annuitant and an insurance company, in which the annuitant pays the insurer a specified amount of money and receives, in return, regular payments for a stated period of time, which period of time may be the life of the annuitant. The specified payment is made at the time that the annuity contract is entered into, and the insurance company invests the money paid. At a future time, the annuitant receives the benefit of the money invested in a stream of payments that corresponds to the growth of the investment.

 There are two basic types of annuities: fixed and variable. In fixed annuities, the annuity stream is a fixed amount in accordance with a payment schedule. In a variable annuity, premiums may be invested in a variety of financial instruments, ranging from individual stocks and mutual funds to real estate and certificates of deposit. Thus, the annuitant's return will fluctuate in a variable annuity, depending upon the market and the success of the portfolio.

Because of the hybrid nature of variable annuities, which often combine some insurance-like assumptions of risk by the insurer, with securities-like assumption of risk on the part of the contract owner, the United States Supreme Court ruled in SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65 (1959), SEC v. United Benefit Life Insurance Co., 387 U.S. 202 (1967) that variable annuities are both insurance contracts and securities, subject to both state insurance regulation and federal securities regulation.

 A mutual fund is an open-ended fund operated by an investment company, which raises money from shareholders and invests in a group of assets, in accordance with a stated set of objectives. Benefits to the shareholder include diversification and professional money management.

Shares are issued and redeemed on demand, based on the fund's net asset value, which is determined at the end of each trading period or session. Mutual funds are federally regulated securities, with markets risk entirely assumed by the investor.

 Hybrids of insurance contracts and mutual funds have been developed. They are sold in a two-step process in which the end consumer purchased a share of an underlying mutual fund (federal security) and simultaneously, but as a separate transaction, becomes a participant in a group insurance policy. The participation in the mutual fund by purchase of shares allows the investor to fully participate in the market movement of the underlying fund. The group insurance contract typically states that the policyholder will receive a benefit only if, at the time of death, the value of the mutual fund share is less than the original purchase price. The hybrid process is both cumbersome for the investor and expensive to administer for the distributor, as it requires the simultaneous sale of two contracts regulated by different agencies (federal securities and state insurance). This mandates an added level of expense for the issuer, a layer of regulation for the distributor and transactional complexity for the consumer.