Wednesday, November 29, 2006

Massachusetts v. EPA related to KSR v. Teleflex

One Supreme Court case that will get more publicity than KSR v. Teleflex is Massachusetts vs. EPA, 05-1120, concerning whether the federal government can restrict vehicle emissions of greenhouse gases (including carbon dioxide [CO2]) under a provision of the Clean Air Act requiring regulation of pollutants. There are some points of similarity between "Massachusetts" and "KSR."

The San Francisco Chronicle noted:

The U.S. Supreme Court, tackling its first case on climate change, appeared divided and somewhat baffled Wednesday over how the government should respond to the warming of the planet.

The Supreme Court also seemed somewhat baffled in analyzing what is going on in the motivation inquiry in KSR.

The Chronicle noted:

Meanwhile, Justice Stephen Breyer suggested that a more activist response by government could halt global warming.

"Suppose, for example, they regulate this and before you know it, they start to sequester carbon with the power plants, and before you know it, they decide ethanol might be a good idea, and before you know it, they decide any one of 15 things, each of which has an impact, and lo and behold, Cape Cod is saved," Breyer said. "Now why is it unreasonable?"

IPBiz notes that the major greenhouse gas in terms of abundance is carbon dioxide (CO2). Carbon dioxide is the thermodynamically stable product of burning any carbon containing source (be it coal, gasoline, or ETHANOL) with oxygen. If you want ENERGY from burning carbon-containing fuels, you are going to make carbon dioxide. Having the EPA regulate the purchase and use of all carbon-containing fuels might be unreasonably ponderous, even if one did accept that carbon dioxide (a fairly inert chemical) were a pollutant. Regulating the production of an inevitable (and inherent) product of combustion is a bit different from regulating avoidable products, like sulfur and nitrogen oxides.

The Chronicle had a quote: "We have to go after carbon and reduce it wherever we find it, and the fact is about a third of the problem is from vehicles," Boxer said in an interview Wednesday. IPBiz notes that Boxer might want to check what fraction of ALL energy produced (in the US or in the world) comes from carbon-containing fuels, and what might want to substitute.

There was an issue of selective citation/non-citation of sources. The Chronicle noted: Justice John Paul Stevens also took on the agency's assertions about scientific uncertainty on climate change, saying the EPA deliberately ignored key findings from a respected National Academy of Sciences report on global warming. IPBiz is reminded of the eBay brief to the Supreme Court about how the USPTO grants 97% of patent applications, citing to the first Quillen and Webster paper. eBay ignored later modifications by Quillen and Webster AND criticisms of the entire Quillen and Webster approach. IPBiz is also reminded about certain unusual assertions about patent quality which were made in a National Academy of Sciences (NAS) report, as well as a basic error about the Wright Brothers patent.

There was an interesting exchange:

JUSTICE SCALIA: That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming."

MR. MILKEY: "Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

JUSTICE SCALIA: "Troposphere, whatever. I told you before I'm not a scientist."

IPBiz notes that NONE of the Supreme Court justices are scientists. Yet, in KSR v. Teleflex they will rule on what is obvious to a scientist of ordinary skill in the art. Do they have the right background?

*****Kintisch again -->

From Chris Mooney, a post entitled, Scalia, Clown of Climate Science:

From my friend Eli Kintisch, reporting on today's Supreme Court global warming hearing:

"We are not asking the court to pass judgment on the science of climate change," said Massachusetts Assistant Attorney General James Milkey in his opening arguments. That may be fortunate for some justices, including Antonin Scalia, who asserted erroneously that global warming occurs in the stratosphere before Milkey corrected him by noting that it was a tropospheric phenomenon. Scalia then confessed his scientific limitations: "I told you I'm not a scientist. That's why I don't want to deal with global warming."

That confession didn't prevent him from venturing into some deep scientific waters, however. At one point, Scalia questioned whether greenhouse gases should even be considered pollutants, noting that the resulting carbon dioxide is produced in a portion of the atmosphere not in direct contact with people. Milkey offered a counterexample, noting that Congress had authorized the regulation of sulfur dioxide, which people don't encounter directly but which causes harm after it washes out of the air in the form of acid rain.


U.S. INTELLECTUAL PROPERTY LAW: Government Questions Sequencing Patent
Science 24 November 2006: 1230b
DOI: 10.1126/science.314.5803.1230b

from Law & Order on on February 20, 2007

Just because the science exists doesn't mean it's the best choice.


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