Wednesday, December 28, 2005

Wasps and I

I have--as my father had before me--a certain limited immunity to insects. That is not to say that they would not bite or sting me, but that--given the choice--they would prefer to bite or sting someone else.

I first learned about this personal peculiarity when I was eleven or twelve and my family--and I--were vacationing at Cambria Pines in California. My father and I were hiking along the cliff above the ocean when he saw an apparently unoccupied paper wasp nest near the top of a large tree some thirty or more feet above the ground. He announced that he was going to get the nest.

I allowed as how I didn't think that that was a very good idea, an argument that my father did not find persuasive.

And--as one would expect--just as my father reached the wasp nest the wasps came pouring out.

I am proud to say that I just stood there until my father's feet hit the ground and then we took off running together.

And neither of us was stung.

And my father was proud that he had invented a new way of climbing down trees, which consisted simply of slapping each branch as it went by.

Some eight or nine years later, I was working as a driller's helper on a shallow water doodlebug crew--that is, a shallow water seismic exploration crew--around Bayou Teche in Louisiana. On that particular day the water got so shallow that we had to get out of our piroughs and wade through the swamp carrying the drill pipe on our shoulders. I wasn't very good at that and kept jamming the pipes that I was carrying into trees.

And after a while I jammed a pipe into a wasp nest in a tree, but I didn't at the time notice that. I just stood there, puzzled, while the rest of the crew--all Cajuns and all at home in swamps--danced around slapping themselves and cursing. So I asked them what was wrong and one of them replied, "Mosquitoes." . It took me some time to figure out what had happened.

I wasn't very popular that day. But I was the only one who did not get stung.

Sunday, December 25, 2005

The Nightingales of Schweinfurth

When I was in the Army I was stationed at Ledward Barracks--die alte Panzerkaserne--in Schweinfurth am Main in Franconia. Schweinfurth was an industrial city that had largely been destroyed in bombing raids during World War II. It's name did not sound any more attractive in German than it does in English, although the Schweinfurthers have a saying: "Es konnte noch schlimmer sein, es konnte Pfortsheim heissen."

There were few tourist attractions in Schweinfurth, although for some reason I did recall the other day that I had once been told that the island there in the middle of the Main river was famous for its nightingales.

And yet I wonder about that, for I cannot recollect ever having heard a nightingale. I remember cuckoos, but never a nightingale.

Wednesday, December 21, 2005

The Milkwagon and the Horse

When we lived in Calgary in the late forties of the last century, milk was still delivered--unhomogenized--in bottles. In the winter the milk and cream in the bottle left on the back porch by the milkman would often freeze and frozen cream would stick out an inch or so from the top of the bottle.

The milkman would take a bottle or two of milk--or whatever the order was--from his wagon and deliver it to the back door and, while he did that, the horse that pulled the wagon would move on to the next house on the milkman's route. It was clear that the horse had the route memorized.

I often wondered whether the milkman could have found his way if the horse were given a vacation and a temporary substitute were placed in the wagon's traces for a time.

Tuesday, December 20, 2005

The Uncarved Block

Taoists speak of the ``uncarved block'' that contains within itself all of the forms into which it can be carved, which somehow reminds me of Michelangelo's claim that he saw the figure in an uncarved block of marble and carved away at it until the figure was set free.

I have recently realized that a general purpose digital computer is like the uncarved block, for such a computer contains within itself everything that can be computed, just waiting, as it were, to be set free by the appropriate computer program.

If that realization is too romantic for your taste, then here is another way of formulating the same idea: Each general purpose digital computer contains the answer to every answerable mathematical question.

Now I suspect that most people reading this who are not familiar with the internal workings of computers, and some who are, will consider these claims to be ridiculous.

On the other hand, computer scientists, almost universally, accept the truth of the Church-Turing thesis that:

any calculation that is possible can be performed by an algorithm running on a computer, provided that sufficient time and storage space are available.
Wikipedia, Church-Turing Thesis

The ``algorithm'' here is a set of instructions telling the computer what to do. In other words, it is what we know more informally as a ``computer program.'' I should also note that a human computer, given paper and pencils enough and time, can also carry out---at least in theory---instructions to calculate anything that that can be calculated.

This matter is not only of philosophical, or mathematical, interest; it also, I submit, goes a long way toward explaining why the Supreme Court of the United States in Gottschalk v. Benson 409 U.S. 63 (1972) held that algorithms---instructions to a computer setting out a process for solving a mathematical problem---are not patentable, even though processes in general are, provided that they are useful, novel, and not obvious.

As I see it, algorithms correspond to questions such as: ``what is two and two?'' and questions are not patentable. The answer to the question---the solution to the mathematical problem---, on the other hand, is not novel and is in a very meaningful sense obvious, for all one has to do is ask a computer---instruct a computer---to answer the question and, if the question is answerable, the computer will answer it.

For those who are not that familiar with the workings of a computer, try asking Google ``What is pi times e times i squared?''---a question that conceivably is novel.

Google will reply ``pi times e times (i squared) = -8.53973422'' which is---approximately---true. That answer is not novel. It is a fact. It is something that is universally true. And universal truths are not patentable. The answer is, and always has been, lurking inside the computer---or computers---we call Google---and inside all other computers---the way that the image of Michelangelo's Pieta was once lurking unseen inside an uncarved block of stone.

Friday, December 16, 2005

In the Beginning Was the Plugboard

Before computers---the machines, not the people---were progammable---that is, before they ould be instructed to reprogram themselves---and before they had central processing units or registers, they could be programmed by rewiring ``plugboards.''

Two Women Programming the Eniac

The first electronic computer in the United States is usually considered to have been the ENIAC, which could be reprogrammed by changing the wiring in a plugboard as is shown here. This apparently is what led to the perverse conclusion that the first computer programs were hardware, rather than that they were implemented in hardware (as all computer programs are that are not implemented in human wetware).

Wednesday, December 14, 2005

Computers and Mathematics

Back in the early seventies of the last century I spent an academic year as a visitor at the Ohio State University College of Law in Columbus, Ohio and ate many of my lunches at the Faculty Club. Several times I had as a luncheon companion a physicist from the Battelle Memorial Institute, which is headquartered in Columbus.

One day the physicist and I got to talking about early computers--which meant computers back in the 1950's--and he told me this story.

Battelle had an early computer--it may well have been one that was programmed by moving plugs and jumpers around on a so-called ``breadboard''--that had only a few kilobytes of memory. And researchers at Battelle also had an equation that they wanted to solve, but the equation turned out to be a bit too large to fit into the memory of their computer. So the researchers--who I guess were physicists--asked one of the mathematicians at the Institute to see if he could simplify the equation enough to squeeze it into the computer's memory.

The next day the mathematician reported that he had been able to simplify the equation and that the result was: e.*

I assume that if the original equation had fit into the computer's memory, the computer would still be grinding away trying to solve the problem since the string of digits representing e is unending.

I suspect that there is some sort of moral here.


e is one of those special numbers in mathematics, like pi, that keeps showing up in all kinds of important places. For example, in Calculus, the function f(x) = c(ex) for any constant c is the one function (aside from the zero function) that is its own derivative. It is the base of the natural logarithm, ln, and it is equal to the limit of (1 + 1/n)n as n goes to infinity....

Like Pi, e is an irrational number....

A Proof that e is Irrational

e is approximately equal to: 2.7182818284590452353602874713526.

Tuesday, December 13, 2005

My Mother and the Bear

Once upon a time in the mid-forties of the last century, my parents and I were camping somewhere---I forget exactly where---in the Canadian Rockies. We had gone to sleep early---it's not easy to sit around and read by a campfire---and got up early. While making breakfast my mother complained that a dog had been sniffing at her through the canvas of the tent, and continued until she gave it a whack through the canvas saying, ``Go away you old dog.''

A little later someone from the next campsite came over and asked us, ``Did you see that bear sniffing around your tent this morning?''

I doubt that there are many others whose mother once gave a bear a whack on the nose.

Friday, December 09, 2005

The Higher Mathematics

At the beginning of my freshman year at the College I was required to attend a series of lectures in Memorial Hall where the deans of the various graduate and professional schools told us what they were looking for in applicants and what undergraduate courses they required for admission.
Of all these lectures, the only one that I recall was the one by Erwin Griswald who was dean of the Law School.

I recall it not because I was later to attend the Law School, for that was not something that I as a freshman was planning to do, but because he said that the Law School had no prerequisites other than a bachelor's degree in something, a position that I immediately found very attractive.

And then, as I recall, Dean Griswold said that it really did not matter what one's major was, as long as it was not too applied and practical. He said that, if one insisted on a recommendation, classics would be a good major, as would be mathematics. And then he quoted the Cambridge Toast: ``God bless the higher mathematics and may they never be of the slightest use to anybody.''

Tuesday, December 06, 2005

The Supreme Court and the Law

To paraphrase Justice Holmes, the law is an educated guess made today about what the courts will decide tomorrow. Whatever a philosopher may think of this definition, it does a pretty good job of describing what is meant when a lawyer says that the law is such and such.

One problem though should immediately be obvious: which courts are the ones that count?

In many cases, cases involving contracts and automobile accidents and leases and insurance policies and the ownership of cats, and things like that, the relevant courts are those of the states, not those of the federal government. On the other hand, in many other types of cases, especially those involving federal statutes and, of course, the federal Constitution, it is the federal courts that count. And, of course, in those federal cases there is only one court that ultimately counts: the Supreme Court of the United States.

I learned this lesson many years ago when I had taken my discharge from the Army overseas and, after spending six months in Germany, had secured a job as an associate with a Wall Street law firm: the firm's address in fact was ``One Wall Street.''

At that time the firm did very little litigation, but somehow, perhaps in a fit of absent mindedness, it had agreed to represent the defendant in a case where the plaintiff charged that our client had unfairly copied the appearance of the plaintiff's fingernail clippers. As the new boy in the office, I was given, as one of my assignments, the responsibility of doing research and writing memoranda about the unfair copying of fingernail clippers.

I thus found myself spending days on end in the reading room of the New York Public Library looking at yellowing copies of Messer und Scherer---that is, Knives and Scissors---a publication of the Solingen steel industry, research that for the most part supported the conclusion that if you have seen one fingernail clipper you have seen them all. I also spent a great deal of time in law libraries doing research about the law of unfair competition, and particularly about the tort of ``passing off'' one's goods as another's.

And then one morning, while I was reading advance sheets recounting what had happened recently in the Supreme Court, I came across a report that the Court had agreed to review two cases where the issue was whether state causes of action for ``passing off'' violated the exclusivity of the Patent Clause of the federal constitution. I immediately rushed---I think that I really did run---to the office of the partner who was in charge of the fingernail clipper case to tell him that the Supreme Court might soon decide that the plaintiff's cause of action was non-existent.

The partner in charge was not impressed. He knew enough about the law of unfair competition to know that the Supreme Court would never abolish it.

So it was with considerable satisfaction that, some months latter, I was able to phone that partner and the associates who were attending a hearing in Connecticut in the fingernail clipper case and inform them that the Supreme Court had just decided* that state law may not prohibit the copying of an article---such as a fingernail clipper---that is not patented or copyrighted.

I think that there is a moral there somewhere.

* In Sears, Roebuck & Co. v. Stiffel Company and Compco Corp. v. DayBrite Lighting, Inc.

Monday, December 05, 2005

Not Understanding About Bears

During my senior year at the College I roomed with two juniors who were both Exeter graduates, one from Connecticut and one from California. I, on the other hand, was a graduate of Natrona Count High School in Casper, Wyoming, the school from which Vice President Cheney was later to graduate.

The roommate from Connecticut had spent the previous summer working in some national park in Wyoming---or, perhaps, Montana---and had grown, in the opinion of us two Westerners, inordinately fond of bears. Bears were for several weeks his primary subject of conversation. He had one story about a bear having been fed lye, a story that apparently haunted him, as tears would come to his eyes as he related it, which he did over and over again.

Now neither member of his audience approved of the feeding of lye to bears, but that was a time---like every other time that I remember---when there were many sad stories to be told about random acts of cruelty, and we had grown rather tired of that particular story, a tiredness that led, I fear, to our making certain---but long forgotten---sarcastic remarks.

Those remarks were not well received by our roommate from Connecticut, who yelled at us: ``YOU DAMNED EASTERNERS JUST DON'T UNDERSTAND ABOUT BEARS.''

Saturday, December 03, 2005

Software Patents

When I was in law school in the mid-fifties of the last century I never took---nor wanted to take---a course in patent law, but I did learn somehow one bit of legal folk wisdom about patents that was current at that time: ''All patents are valid and enforceable, except for those that have been reviewed by the Supreme Court; no patent that has been reviewed by the Supreme Court is valid or enforceable.''

Since the creation of the Federal Circuit in 1982, however, the Supreme Court has had occasion to decide very few patent cases because all the patent cases that would in the old days have been decided by the various different circuit courts of appeal are now all heard by the Federal Circuit and thus there is never any conflict between the circuits and a conflict between the circuits is the usual basis for the Supreme Court deciding to hear a case.

Over the years since 1982 the Federal Circuit has held repeatedly that innovations in computer software---in computer programs---can be patented. The leading case in the Federal Circuit on this subject is In re Alappat, 33 F3d 1526 (Fed. Cir., 1994), even though, way back in 1972, the Supreme Court had held in Gottschalk v. Benson, 409 U.S. 63 (1972), that a claim in a patent application that describes a computer program---a so-called ``algorithm''---is not patentable.

Thus we now have the strange situation where most lawyers, including most members of the patent bar, have to assume that software patents are valid and that the Federal Circuit has in effect overruled the decision of the Supreme Court in Benson even though the Court has never been very sympathetic when lower courts have refused to follow its decisions.

Of late, however, the Supreme Court has evidenced an increased willingness to review decisions of the Federal Circuit in patent cases. When one couples that with the fact that there is more and more evidence these days that software patents impede rather than support the progress of science and the useful arts, I am almost willing to predict that within the next few years the Supreme Court will once again declare that claims in patent applications describing computer programs are not patentable and that therefore so-called software patents are not valid.

It should be noted, however, that that prediction will not come true if no one is willing to bear the expense of taking such a challenge to the Supreme Court or if no one dares to raise in a petition or an appeal to the Supreme Court the fact that there is a conflict between the Court's holding in Benson and the Federal Circuit's holding in Alappat.

Friday, December 02, 2005


I am not fond of swamps and--as you shall see---I have good reason for disliking them, or, at least, for disliking working in them, although I am one who adamantly believes that they should be preserved in all their natural splendor and diversity---only without me.