Sunday, July 29, 2012

E Pluribus Unum Unsealed


"The present age does so much justice to the unsullied reputation with which you have always conducted yourself in the execution of the duties of your office, and posterity will find your name so honorably connected with the unification of such a multitude of astonishing facts that my single suffrage would add little to the illustration of your merits. Yet I cannot withhold any just testimonial in favor of so old, so faithful, and so able a public officer, which might tend to sooth his mind in the shades of retirement. Accept, then, this serious declaration that your services have been important as your patriotism was distinguished ; and enjoy that best of all rewards, the consciousness of having done your duty well."

When President George Washington wrote these words, he had no idea how wrong he would be.  For indeed, posterity has long forgotten the man who was singularly praised as the icon of integrity and truth at the formation of the aspirational embodiment of the Roman poet Virgil's Novus ordo seclorum ("new worldly order").  And during the next few weeks, we will silently pass the 230th anniversary of casting of the Great Seal of the United States in advance of its first use on September 16, 1782 paying little attention to the emblem, its artist, or the impulse which led to the audacity he attempted to inspire.  That man, long lost in posterity, was Charles Thomson, the Secretary of the Continental Congress and the Doodler-In-Chief who got the job of assembling the eagle, scroll, olive branch, quiver and shield and using his command of Latin to select the pronouncements inscribed thereon.

E Pluribus Unum - From Many, One;
Novus ordo seclorum - New Worldly Order
Annuit Coeptis - Favored by Providence

On Friday, I sat in the U.S. House of Representatives' Financial Services Committee room in the Rayburn Office Building on Capitol Hill.  Getting ready for the briefing I was about to deliver on a mechanism to reintegrate productivity and capital flows in our economy, I found myself peering long into the extinct bird perched aloft the back wall of the room.  I wonder, I thought to myself, how many Chairmen have been seated at the head dais and taken a moment to inquire into the man who cast the Great Seal's bird so long ago?  Having observed Fed Chairman Ben Bernanke and Secretary of the Treasury Timothy Geithner sitting below said foul (yes, I didn't mistype the bird 'fowl' though my intention was dry humor) over the past few weeks, I was equally inquisitive as to how many witnesses have sought to embody the character of a man about whom, upon entering the room, was reportedly said, "Here comes the Truth."

That Charles Thomson was drawn to heraldic representations may reflect influences from his Irish ancestry.  It is curious that, in his first sketch, he used the chevron breast plate on an American eagle.  His detail of the eagle - dexter talons fitted with the olive branch of peace and sinister talons fitted with clutch of arrows - could have been homage to his exceptionally pacific relationship to the Delaware Indians for whom he served as Secretary in many negotiations including quite acrimonious disputes with the family of William Penn.  As a close confidant of fellow natural philosopher Thomas Jefferson, he was confessor to Jefferson's recognition that slavery was a blight from which humanity's exit would likely be a civil war.

Had it not been for a drive across the beautiful Blue Ridge Mountains today, you would be reading a blog post about the farcical banter about the state of the global economy and the market's enthusiasm for the increasing Machiavellian scheme to exsanguinate the public for the exclusive enrichment of the few.  With economic news conclusively panning to the absence of ground beneath our cartoon-like whirling feet, our collective Wile E. Coyote's are trying to assure us that if we don't look down, we'll defy gravity for just a few screens more.  Maybe we should have kept Charles Thomson's clouds above the eagle's head rather than replacing them with the constellation of 1-4-3-4-1 (or 13) stars in radiant glory.  However, as I drove up the side of the mountain heading to the east, I was at once greeted by the soaring majesty of a great American eagle who was effortlessly rising towards the towering thunderclouds to my south.  In a moment, I saw the sketch of Charles Thomson and you got this blog post.

I frequently discuss the infinitely orthogonal complexity we simplify with the word "value".  While even my most liberal, counter-culture aunt at my family gathering unsuccessfully strained her mind around a world that doesn't require someone to 'fund' a cause - having herself become subject to the hegemony of contrived scarcity - I marvel at the reckless ignorance we have of the symbols (custom & culture; knowledge; and technology) which both define us and shape our collective destiny.  E Pluribus Unum is ubiquitous in our lives.  Together with the unfinished pyramid and the Eye of Providence, it is our most celebrated icon - our crowning and transcendent scorecard for success and power.  And yet, like so many other sacraments, we pay homage to the artifact and have long ago deemed its creation and creator irrelevant for equal reflection.

Thomson's impulse represents some profound wisdom.  He evidenced an unrelenting commitment to cross-cultural learning (including speaking the language of others: Greek, Latin, and tongues of those who dwelled in North America long before the Europeans).  He drew wisdom and inspiration from across the millenia (inspired by Virgil's poetry; translating the Greek texts New Testament and Old Testament).  His commitment to integrity and public service earned him the confidence and praise of those who aspired to his reputation built on unquestioned honesty and accountability.  He wrote a meticulous account of the revolution and the formation of the Federal Constitution but, prior to his death, destroyed the manuscript stating that he was unwilling to damage the reputation of families of rising reputation whose "progenitors were proved unworthy of the friendship of good men because of their bad conduct during thewar."

As we come to the anniversary of his death - a day unmarked - and cross the anniversary of the casting of the Great Seal which now serves to remind and indict us, I trust that we reflect on those things which have cast long shadows across the heraldic crest that has been long sullied.  And when we emerge from the mists of our reflection, I trust that we draw some value - some inspiration - from the man and the bold proclamations made in anticipation of what we might become.  Then we may find ourselves rising together like the winged beasts that inspired heraldry (and their symbols dating from the Egyptian Horus falcon emblems to today) and form a More Perfect Union, insure Tranquility, provide for Commons defense, promote General Welfare, and secure the Blessings of Liberty.

Sunday, July 22, 2012

Bernanke v. Paul Title Bout: Pay Per View


"First of all, in private contracts: wherever the unjust is the partner of the just you will find that, when the partnership is dissolved, the unjust man has always more and the just less. Secondly, in their dealings with the State: when there is an income tax, the just man will pay more and the unjust less on the same amount of income; and when there is anything to be received the one gains nothing and the other much. Observe also what happens when they take an office; there is the just man neglecting his affairs and perhaps suffering other losses, and getting nothing out of the public, because he is just; moreover he is hated by his friends and acquaintance for refusing to serve them in unlawful ways. But all this is reversed in the case of the unjust man."

Plato's reply to Socrates, The Republic

I watched with ironic despondency as Representative Ron Paul (R-Texas) engaged, for what most commentators suggest is his farewell bout, with Federal Reserve Chairman Ben Bernanke (R - Banks & High Net Worth Investor Pals) on the cost of opacity in the Federal Reserve.  Characteristically, Chairman Bernanke knew that his philosophical battle with Rep. Paul has been a war of attrition and the last man standing will be proclaimed the victor.  To be clear, all Ben needed to do is be silent and he knew that the halls of Congress would serve as a cavernous acoustic curtain that would suck Ron's words into the void.   And, for the most part, he did what he needed to do.  The only place he lost his script of the silent treatment was in his unbelievable statement that, "To eliminate the exemption on monetary policy deliberations would effectively - at least to some extent - create a political influence, or a political dampening effect, on the Federal Reserve’s policy decisions."  Really, transparency would lead to political influence?  No wonder Socrates wound up drinking the hemlock!

This past week we have seen an expansion of unfathomable crimes being 'uncovered' long after their effects have wrought great damage on the General Public.  While I have, for years been commenting on the massive abuses in the municipal bond market - abuses which undermine every pension investor in the United States and many around the world - the U.S. Department of Justice has succeeded in getting 13 guilty pleas from muni riggers at Bank of America, JPMorgan, UBS, Wells Fargo, and General Electric resulting in a reported $700 million in restitution and penalties.  And now, this week the Justice Department announced an indictment for wire fraud and conspiring to defraud the United States against Bank of America's municipal derivatives desk former executive Phillip D. Murphy who allegedly played a key role in rigging the price of funds for things like building schools and roads.

Rep. Ron Paul's frustration with a system out of control and operating with impunity is justified.  Chairman Bernanke's reply to Rep. Paul suggests that he either never read or forgot what Congress actually authorized on that wonderful Christmas Eve eve session in 1913 at the passage of the Federal Reserve Act.  He overlooked the fact that Congress actually stated that "shareholders of every Federal Reserve bank shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such bank…."  He also seemed to assume that We The People wouldn't go back and read the actual Act that put his position into effect and see that, "Nothing in this Act contained shall be construed as taking away any powers heretofore vested by law in the Secretary of the Treasury which relate to the supervision, management, and control of the Treasury Department and bureaus under such department, and wherever any power vested by this Act in the Federal Reserve Board or the Federal reserve agent appears to conflict with the powers of the Secretary of the Treasury, such powers shall be exercised subject to the supervision and control of the Secretary."  Oh, and did I mention that the Fed's salary cap was $12,000 annually?

This week's news highlighted one of the great cognitive ischemias of our time.  We're either supposed to listen to sound bites emanating from Congressional hearings and assume that one or more of the parties is actually telling the truth or we're supposed to be sufficiently anesthetized not to care (or both).  Without basic financial literacy, We the People are incapable of knowing when justice is being served and when it's being usurped.  While we've got a basic impulse that senses that injustice is at hand, we wait to see who is left in relative paucity and then conclude that the one that got away with all the wealth was the unjust.  While this logic is consistent with Plato's argument in The Republic, I am compelled to suggest that outing the bad guy is not overly constructive.  In fact, as Chairman Bernanke quite correctly said to Rep. Paul, "there's no constitutional reason why Congress couldn't just take over monetary policy," concluding that if Rep. Paul doesn't like the job the Fed is doing Congress can "take it back." 

This exchange was Chairman Bernanke's crowning achievement in the two days of testimony.  While guilty of grievous over-simplifications of the law authorizing his job, he quite correctly stated that the same Congress that passed the Federal Reserve Act in 1913 could repeal any or all of it.  And, this rather frontal retort should be a clarion call for citizens to join in the effort to reform or reconstitute a more transparent system.  In his defense, Chairman Bernanke is only as good as the ideas that he receives from his advisors and the public.  The lack of constructive solutions to monetary policies and the economy is, in large part, due to the lack of constructive input coming from citizens.  But, as Occupites across the globe have quite convincingly proven, disgruntled ignorance, regardless of its justification, is, in the end, as unhelpful as incumbent complacency. 

So, here's an idea.  This year, the U.S. Department of Justice is likely going to rake in record fines from banking institutions.  If the first two quarters are any indication (see their graph above), they could blow through last years $1 billion mark quite easily.  So why don't We the People petition for the Treasury (the recipient of these windfalls) to provision a Town-Hall-for-Financial-Literacy Campaign - funded by the temple robbers' levies - so that We the People actually know enough to form constructive critiques and, in so doing, actually create a More Perfect Union?  

Sunday, July 15, 2012

Anecdotal High Crimes


Andrea Priest, spokeswoman for the New York Federal Reserve gets my quote-of-the-week award when she stated that the Fed had, "received occasional anecdotal reports from Barclays of problems with LIBOR."  To be clear, the ERROR value in the LIBOR reporting scandal is likely to be in the vicinity of $900 billion each year placing the LIBOR ERROR as the world's 19th largest economy - coming in just ahead of Taiwan and just behind Australia and the Islamic Republic of Iran.  Since its inception, the current LIBOR oops that we know about allowed just over $4 trillion to change hands with no one watching.  Associated to the public sector involvement I pointed out in my last blog post, this number has an uncanny resemblance to the value of wealth transfers that were sponsored by government-backed interventions with banks, insurers and other investors during the G-20's financial crisis response.  So the timing of the Barclay's "discovery" seems to be remarkable given the fact that Tim Geithner seemed to at least know of the reporting risk as early as 2007.  So we treat a $4 trillion heist as just an 'anecdotal' event until we've monetized the theft of global taxpayers and then we decide to take it seriously???  SERIOUSLY????

In related news, one of the shareholders who has greatly benefited from the opaque wealth transfers of the last several years is now advocating for another business that, if enacted, will pick pensioners pockets again.  Steve Gluckstern, chairman of San Francisco based Mortgage Resolution Partners is suggesting that one way to address the country's real estate economic woes is to allow governments to use eminent domain to seize real estate with underwater mortgages and have private investors repurchase the properties for "fair value".  Under an Obama-esque acronym CARES (which stands for Community Action to Restore Equity and Stability - think the 2008 election slogan HOPE which probably really stood for Helping Oligarchs Purloin an Empire), Mortgage Resolution Partners is proposing that jurisdictions like San Bernardino County use their ability to seize property and summarily revalue the same sticking the losses to every pension holder in the U.S. thereby "assisting communities".  For their service to the country the firm would collect a fee on every loan modified.  That's right, a private group of investors would receive an incentive payment for a municipality 'legally' erasing mortgage obligations.  

We live in interesting times.  The audacity of the public-sector crimes enabled against the citizens of countries - all of them measured in billions or trillions of dollars of value - seem to live comfortably under the sleepy eye of the lethargic judicial system that can see anecdotal trillions of dollars go missing without leaping into action.  During the same time we see politicians get in front of cameras across Capitol Hill and perjure themselves by stating that Bush-era tax cuts are necessary to grow employment and the economy.  These statements are being made despite the fact that, since the Bush tax cuts, unemployment has nearly doubled and the permanently unemployed has nearly tripled.  By keeping more money via the "tax cuts" and stealing money via government bailouts and LIBOR scandals (just to name a few), the employment scene has gotten more bleak and the global economy has become more fragile for the majority of people.

And all of this has another pillar of structural weakness that I've tried to illuminate for many years.  As we see Kodak collapse and we see other stalwart employers slip into the annals of a history not to be repeated, the Pension Benefit Guaranty Corporation (PBGC), a member of the credit committee for the Kodak bankruptcy made the statement back in January that the Kodak pension was "reasonably well funded" with $4.9 billion in assets and a mere $5.6 billion in obligations.  Now, on the surface, the fallacy of their statement is self-evident.  A company in bankruptcy is going to magically come up with $700 million (assuming that the $4.9 billion is correct).  When approached recently about whether they wanted independent corroboration on the value of Kodak's assets, the PBGC responded by saying that they "did not need" any additional help.

So let's see these stories all come together.  LIBOR price-fixing has been undermining true notional value of credit instruments for 5 years or more.  Private investors are seeking to use eminent domain to gut fixed income products (including investments held by and managed by PBGC).  We've got prima facie evidence that our tax and bailout indebtedness has NOT been a stimulus.  And the PBGC doesn't require additional visibility to understand its actuarial exposure.  Get it?  In a world where We the People fail to become informed and understand the interconnections between colluding parties, We the People place ourselves in the cross-hairs for being hijacked.

This past week, a few thousand of you cared enough to share the LIBOR blog post with your friends.  Well done and many thanks.  This week, your activism and awareness needs to spread more like a wildfire racing up a canyon driven by hot winds.  We the People need to have hundreds of thousands or millions talking about this - not just a few thousand.  This coming week, bidders will put a nail in the coffin of Kodak as they seek to scavenge the innovation carcass of what was one of America's leading companies.  This week, illiquid municipalities will seriously consider confiscating property and turning eminent domain into a financial arbitrage to transfer CMO value from pension accounts for the private benefit of a small group of investors.  And this week, if you read this and get frustrated, nothing will happen.  Dig deeper.  Put the puzzle together.  And above all, get the word out that We the People are not helpless against those who seek to pillage the masses.  It can only get better if you and all those you know become educated and involved.    

Sunday, July 8, 2012

Conclusion: Collusion


Why is there a "Lie" in LIBOR? 

Several months ago I had the good fortune of sitting down with some of the senior team at the U.S. Department of Justice's Anti Trust Division in Washington D.C.  For several months, we had been meeting with U.S. Attorneys to educate them on their own anti-competitiveness laws with respect to a growing illegal practice of building 'blind patent pools' for the purpose of extorting money from legally operating businesses.  As momentum built from a number of U.S. Attorneys who, when presented with the evidence we provided insisted we meet with the DOJ in Washington D.C., we were somewhat disheartened by a statement made by one of the senior officials when he said, "Well, we need something more than extortion to build a case.  We need to prove that the extortionists are also colluding."  No sooner than the words had come out of his mouth than he looked as us rather dryly and said, "I guess that sounds bad, doesn't it?"  Fortunately, this week the collusion piece was announced in a press release so, hopefully the DOJ was actually paying attention to the now multi-billion dollar violation of not only the Sherman Act and Clayton Act but now the Racketeer Influenced and Corrupt Organizations Act of 1961.

The current administration has its hands full with Attorney General Eric Holder's civil and criminal contempt of Congress issues - a matter made more distressing by President Obama's frequent assurances that his administration was going to actually break from the Bush Administration's tradition of thumbing its nose at the Constitution.  So it's going to be interesting to see how the Law-Enforcer-In-Chief gets in front of what could very easily be a trans-Atlantic scandal that is erupting as I'm writing this blog post.  Collusion!

A little history is important.  LIBOR or the London Interbank Offered Rate is an inextricable warp in the fabric of our global economy.  The magic carpet woven on that warp includes momentarily values for currencies, short term credit and over $800 trillion in financial products such as derivatives, swap agreements and a host of other debt instruments (according to the Economist while the Washington Post reports the LIBOR linked instruments to $360 trillion).  The LIBOR is supposed to reflect the liquidity of market acceptance for money, the credit risk associated with financial institutions and their primary constituents, and the nature of currency confidence reasonably expected to support monetary instruments.  If you have ANY investment, any money, or any debt, this story not only directly impacts you - your pocket has been picked and you didn't even know it! 

By definition, LIBOR is an agreement between parties.  So when Barclays Plc was assessed a record setting £290 million fine ($455 million if you believe that a dollar is actually worth a dollar) I'm sure that the regulators were hoping that nobody actually paused to think about the "I" in LIBOR.  You see, if the "Inter" is in the name, that means that there is more than one party involved.  And the more Robert Diamond and Jerry Del Missier open their mouths to investigators, the more trouble is likely to unfold.  As we see, Barclays was not alone in this racket.  According to recently released information, Bank of England deputy governor Paul Tucker not only was aware that this was going on but was consuming advice on how to appropriately fix the fix.  Ah, for those nostalgic days when the rule of law actually meant…, oh, that's right, it must be the heat getting to me - those days have NEVER existed!  The Financial Services Authority, the U.S. Department of Justice, and regulators and law enforcers will seek to put several hapless CEO's and mid-level minders into the stocks for public ridicule and rotten vegetable hurling - now being considered for an Olympic sport in London (don't I wish).

But, I want to get out in front of the story that will one day be the real story.  This LIBOR fixing nonsense is only a week old but there are now at least 20 banks that are reportedly under some form of inquiry.  And this number is going to grow.  But here's the tricky part.  It's not just banks that should be under the Klieg lights.  Thomson Reuters proudly states that it is the "official calculator of more than 120 benchmark fixings" on their website.  In other words, what Thomson has told the world is 'calculated' by them is either not, or they, like their rating agency brethren are implicated.  Someone at Thomson should e-mail their webmaster and tell him or her to pull down this page really fast.  Because one thing that this scandal will show is that the arbiter of calculated just got shown to be a rather naked king!  If they were actually measuring things and calculating things they should have easily detected the same anomalies that I detected in 2006 at the Arlington Institute giving me the ability to see the 2008 collapse two years before it happened!  But it gets worse.  Oh yes, much worse. 

As has been the case in public scandals in which the public is legally robbed by government-sanctioned holders of Letters of Marque (legalized piracy), the inquiries are going to run into a much bigger problem that neither side of the Atlantic can politically stomach.  You see the financial institutions implicated in this LIBOR scandal were doing a public relations service for the governments who give them favor.  Had the banks, in October 2008, actually reported the condition of credit and currency, a politically unacceptable reality would have surfaced.  The public would have realized that there is much deeper problems facing the economy than anyone had previously been willing to confront.  So, in classic fashion, they kicked the can down the road.  Bad news here is the road is a cul-de-sac and there are some really big bullies at the end.

What we'll find (as we are already seeing) is that public officials desperate to see their political fortunes surf the tsunami of financial illusions made the very predictable mistake of inquiring of banks how to manipulate public confidence.  "How do we get credit flowing…?" will be in some e-mail to which a bank executive will reply, "In exchange for some government guarantees, we can tax the public a few pence or pennies at a time through subtle manipulation of LIBOR and, voila, problem solved," to which the response was, "I don't know what that means but if it works, do it and we'll back you up."  Credit guarantee schemes - those wonderful manipulations that pass public funds to private investors - have been, and will continue to be the lubricant in a debt-based currency system until we invert the alchemy!

Which leads me to the following.  You've been robbed.  To be sure, there will be no public dividend slated for the massive fines that the FSA and DOJ assess against those they publicly decide to scapegoat.  And, if YouTube videos of kids with toothaches and KONY2012 can go viral to millions, than do yourself a favor and let your neighbors, your friends, and your colleagues know that adding public racketeering to collusion is dangerously close to treason - only this time, it's the sovereign acting against the people!  Maybe Eric Holder's Justice Department will wake up but it will only happen if enough of you who read this decide to stop the bank robbers!  Send this blog post to as many of your acquaintances as you can and let's see if the people's voices can actually propel the investigation past the banking executives all the way to the place where the Buck Stops!

To Form a More Perfect Union, we must return to economic systems which are built upon transparency, productivity and bounded scale.  We don't need more scandals to prove that the Creature from Jekyll Island - uncannily the island governed in the 16th century by Ponce de Leon (seeker of the Fountain of Youth) - is ready for the Museum of Unnatural History with other lumbering reptiles that had voracious appetites and very small brains devoid of cortices.  LIBOR's ubiquity gives We the People an opportunity to efficiently unwind what hasn't worked and lay down the warp threads for a new, publicly accountable system of value exchange. 

Monday, July 2, 2012

A Pirate By Any Other Name


Today’s announcement that Apple paid $60 million to settle the case with Shenzhen Proview Technology for the name “iPad” was more than great theater.  Evidencing a callous disregard for “slavishly copying” a Chinese firm’s intellectual property (the dramatic assertion used in the argument made by Apple against Samsung for which Judge Lucy Koh just granted Apple an injunction), Apple has proven that it’s respect for intellectual property and its commitment to ethical standards is quite simple:  if it’s good for Apple, then IP is good; if it’s someone else’s IP that Apple wants to take, IP is bad.  Worst of all, Apple is allowed to act with impunity knowing that it has friendly judges in the U.S. who will allow it to skate on thin ice when it comes to respecting the law. 

Apple lovers around the world will shake their head in disapproval for what appears to be a case of trademark cyber-squatting.  This disdain for the rights of others around the world is unfounded and portends great risk in the future.  Apple didn’t own “iPad” any more than it owns “slide-to-unlock.”  And the double standard of seeking court injunctions to support their illusion merely makes the IP bubble inflate which, as we all know, will one day lead to the great deflation.

In a world where millions of patents and trademarks are issued to enclose ideas that are neither original or inventive, our cultural, linguistic, and hegemonic ignorance will cost us far more than Apple’s $60 million settlement.  This is a phenomenon that I addressed with the Bush Administration years ago and, below, you will find a letter that I wrote for then Commerce Secretary Donald Evans' senior staff before he went over to China to castigate them for not respect IP – including the misrepresented innovation of one Apple corporation.

The Letter of Marque – An Intellectual Property Paradox

January 15, 2005

Dr. David E. Martin


Fellow, Batten Institute, Darden Graduate School of Business Administration
University of Virginia

In the dawn of the 19th century, considerable international commerce fueled the expanding markets of Europe and the newly independent United States of America.  Caravans followed centuries old paths overland to bring goods from the East to markets in Europe.  However, with growing populations eager for the exotic and with the need to more rapidly move goods from manufacture to market, the seas became the corridors for trade.  Ships plying the trade routes were frequently exposed to piracy – a splendid business in which others bothered to retrieve goods which, with relative swiftness and aided by cannon, musket and sword, could be repatriated for the benefit of the opportunistic and strong.  Napoleonic fervor fueled the court of Britain to create a class of civilized piracy to undermine the economy of France and its allies creating a designation of ships with the “Letter of Marque”.  Thusly empowered, these ships could “take prizes” (a terribly civilized term for piracy) with impunity surprising their quarry under false colors and in disguise.  In other words, piracy was what others did – defense of economic interest was what Letter of Marque ships did.

This Wednesday, outgoing Secretary of Commerce, Don Evans, excoriated the Chinese for their failure to reign in intellectual property piracy.  Suggesting that the Chinese should imprison those guilty of violating patent, copyright, and trademark laws, Secretary Evans’ issued a clarion call for the defense of U.S. sovereign intellectual property rights.  By suggesting imprisonment as a remedy for what in the U.S. calls for financial sanctions only when infringed parties have sufficient liquidity to seek remedy in the courts, his suggestions seem ironic in light of a historical position on human rights and due process criticisms of China.  Was Secretary Evans representing a U.S. position which holds all intellectual property rights (IPR) as requiring united national defense or was he, like others, representing a minority of vocal business interests who defend a policy of the Letter of Marque?  Namely, when others do it, it’s piracy, when the U.S. does it, its called innovation.

Presaged at the World Trade Organization gatherings in Doha and Cancun, the duplicitous U.S. policy on IPR may be unraveling.  We don’t want our creative works annexed by others but we fail to address two fundamental inconsistencies.  First, we deny the well-established reality that our IPR granting systems are ineffectual in ensuring that only legitimate rights are granted.  The same Commerce Department, which oversees the United States Patent & Trademark Office, fails to defend international interests against U.S., European, and Japanese commercial entities who engage in the expatriation of the one resource that emerging economies have in excess – namely, biodiversity and traditional knowledge regarding its beneficial uses.

Attributing to malevolence that which is ignorance is unjustified.  In meetings with senior Commerce Department officials, we are aware that many of them are unaware of the depth of dysfunction in the IPR granting institutions whose products they wish to defend.  Therefore, one can argue that Secretary Evans is merely guilty of an industry-advocated farsightedness in which the real IPR violations of others can be seen more clearly than the same activity at home.  It is ironic that a number of European states are beginning to realize the need for national defense of IPR held by small and large business interests within their borders while in the U.S., enforcement is only available to those with liquidity to access the courts.

Where was Secretary Evans call for jail time when Columbia University sought to double-patent its co-transformation technology licensed to Amgen, Genetech, Abbott, and others?  Who is serving time for applying for, granting, or enforcing patents on indigenous cultivars of China, Brazil, and India?  

IPR theft is wrong in any context.  Secretary Evans’ passion is admirable.  However, under the rule of law, precedent serves as a cruel master.  Should the U.S. seek global respect for its commercial deployment of IPR, it should insure that it grants only that which is statutorily valid serving the Constitutional social benefit incumbent thereon and, once granted, advocate for equal enforcement regardless of venue.  A Letter of Marque IPR policy is unsustainable and one day may be used against us.