Agricultural & Food Law at the University of New Hampshire

The University of New Hampshire School of Law has a variety of innovative agricultural and food law activities.  Professor Margaret Sova McCabe provided me with information about these activities, and I am happy to include them in our reporting about law school initiatives.  Professor McCabe has focused much of her writing in the area of food and agricultural law and has been active in the AALS Agricultural Law section.

Professor McCabe teaches Agriculture and Food Law Topics. The course surveys diverse topics from "veggie libel" to genetically engineered crops to obesity regulation.  Professor McCabe reports that her goal in the course is "to show students how basic concepts learned in torts, contracts, administrative law, and other courses apply to food and agriculture." Her students prepare presentations on topics, allowing them to explore their own interests in the area.  This year's presentations included SNAP and Food Affordability; Anti-Trust Issues in the Dairy Industry; and Regulating Sodium in the American Food Supply.

The class takes at least one field trip -  this spring they went to the University of New Hampshire Dairies in Lee and Durham, New Hampshire. UNH, the flagship of the university system, operates two dairies: one organic and one conventional. The purpose of the trip is to allow the students to understand how different regulatory systems produce different "real world" results. It is also an opportunity for students to connect with the food system outside of the classroom.  UNH Law is clearly proud of its agricultural law initiatives -  a recent UNH Law blog post highlights that dairy trip and present a great slide show of the students' experience.

This year UNH Law also offered its first Animal Law course. Taught by adjunct professor Trish Morris, who has an animal law practice, the class educates students about the many legal issues that relate to animals. The Animal Law class also participated in the dairy field trip.

Agricultural and food law has also made its way into the UNH School of Law clinics.  The Administrative Law Clinic is now helping the NH Department of Agriculture, Markets, and Food draft administrative rules.  Due to budget cuts, retirements, and other pressing duties the Department needed help with its rulemaking projects. Thanks to the efforts of NH Agriculture Commissioner Lorraine Merrill, NH State Veterinarian, Dr. Steve Crawford, and Professors Mary-Pilkington Casey and Margaret Sova McCabe, UNH School of Law is now providing the agency with rule drafts and related documents.

As the Memorandum of Agreement between the state and the school approaches its first anniversary, students have been working on NH’s beekeeping, animal population control, and marketing rules, along with the Department’s organizational and procedural rules. Students are able to experience rule drafting and gain understanding of the demands on a small, but essential, state agency. Students also come to understand the importance of agriculture to the state’s economy. The rulemaking project is exciting because it allows UNH Law students to participate in the administrative process while providing an essential service to the state, especially in tough fiscal times.

Another example of the innovative ways in which law schools are tapping into student interest in learning more about where their food comes from,  how its regulated, and how our legal system affects our food system.  Thanks, Margaret, for your work at UNH and for passing this report on to us!

On Fast Track, Patent Office Run Over By Budget Deal

As LEXVIVO previously reported, the United States Patent and Trademark Office ("USPTO") entered 2011 by proposing several significant reforms designed to improve the efficiency and quality of the patent application process.  Included in these proposed changes were a new fast-track patent pathway and new satellite Patent Offices.  The Federal budget compromise recently agreed between Congress and President Obama, the Full-Year Continuing Appropriations Act, 2011 (Pub. Law 112-10), brings this brief patent office perestroika to a halt.  Here is an email USPTO Director David Kappos sent to his employees last week:

As you may know, the FY 2011 budget was signed by the president on April 15, 2011 and contains the USPTO’s appropriation through the end of this fiscal year, September 30, 2011. With the enactment of the Full-Year Continuing Appropriations Act, 2011 (Pub. Law 112-10), USPTO spending authority for FY 2011 has been limited to $2.09 billion. In view of the funding cuts reflected in the final budget and affecting the U.S. government as a whole, we will be unable to expend the additional $85-100 million in fees that we will be collecting during this fiscal year—funds that we had anticipated being able to use to fund operations this year.

In short, the Continuing Appropriations Act for FY 2011 does not allow us to maintain spending at the levels planned for this year. Further, I am mindful of the fact that we may very well be operating at the FY 2011 level for the foreseeable future. As a result, we have had to make some difficult decisions in order to ensure the responsible stewardship of the agency. It is against that backdrop that I must reluctantly announce, effective immediately, that:

• All overtime is suspended until further notice;

• Hiring—both for new positions and for backfills—is frozen for the rest of the year unless an exemption is given by the Office of the Under Secretary;

• Funding for employee training will be limited to mandatory training for the remainder of the year;

• Funding for contracting of Patent Cooperation Treaty (PCT) search is significantly reduced;

• The opening of the planned Nationwide Workforce satellite office in Detroit and any consideration of other satellite locations are postponed until further notice;

• Only limited funding will be available for mission-critical IT capital investments;

• The Track One expedited patent examination program, scheduled to go into effect on May 4, 2011, is postponed until further notice.

In addition, all business units will be required to reduce all other non-compensation-related expenses, including travel, conferences and contracts.

Trademark activities are unaffected and will maintain normal operations.

I want each of you to know that we have not come by these decisions easily. I recognize that these measures will place additional burdens on your offices, your staff, and your ability to carry out the agency’s mission. However, I believe that they are absolutely necessary to ensuring that the agency can continue to operate through the remainder of this fiscal year and into FY 2012.

I thank you for continuing cooperation and patience, and I appreciate your dedication and service during this challenging time.

David Kappos

Under Secretary of Commerce for Intellectual Property and Director of the USPTO

Ironically, the USPTO does not contribute materially to the Federal deficit.  Instead, it is financially self-supporting, covering its operations through the collection of fees from patent and trademark applicants.  However, Congress has traditionally appropriated these fees for other governmental purposes, leaving the USPTO continually short of money to pay for improvements, such as skilled new patent examiners to help alleviate the huge backlog of patent applications.  In an age of austerity, the USPTO might be celebrated as a governmental exemplar of financial self-sufficiency.  Instead, it continues to act as a piggy bank continually filled by inventors, only to be raided by Congress.  It is difficult to see how this strategy benefits technological innovation.

More agricultural law at LEXVIVO.

Opening The Closed While Closing The Open

The Public Patent Foundation describes its mission as "Representing the Public's Interests in the Patent System."  As its website explains,

Undeserved Patents and Unsound Patent Policy Harm the Public
... by making things more expensive, if not impossible to afford;
... by preventing scientists from advancing technology;
... by unfairly prejudicing small businesses; and
... by restraining civil liberties and individual freedoms.
PUBPAT Represents the Public's Interests Against Undeserved Patents and Unsound Patent Policy

Patent Attorney David Garrod, who has served as Senior Litigation Counsel for the Public Patent Foundation, assisted the Public Patent Foundation in its campaign against false patent marking, and authored several free claim construction dictionaries.  Meanwhile, his company, Bedrock Computer Technologies, LLC, asserted its own patent (United States Patent No. 5,893,120, entitled  "Methods and Apparatus for Information Storage and Retrieval Using a Hashing Technique with External Chaining and On-The-Fly Removal of Expired Data") against software giants such as Google, Amazon, and PayPal.  On April 21, 2011, Bedrock won a $5 million jury award against Google, whose use of open source Linux software code allegedly infringed claims of the '120 patent.

The result is a fascinating and apparently quixotic juxtaposition of opening the closed while simultaneously closing the open, and is as clear as mud.

More agricultural law at LEXVIVO.

Strawberry Fields and Farm Workers

While the sun is generally credited for various forms of skin cancer, recent studies link the health of farmworkers employed in fields that are sprayed with pesticides. Though sun exposure can also be attributed to the rising rate of melanoma, studies also show links to farm labor employment. Even more specifically studies indicate that farm workers exposed to pesticides have higher chances of developing the skin disease. The damage however doesn't end there. The correlations between pesticide use and brain cancer are also emerging.

The USDA and others including William Kandel underscore farmworkers ". . . . make a major contribution to agriculture by providing labor during critical production periods." To what extent then are we protecting the nation's farm workers?

Generally federal law governs and obligates agricultural employers to an environmental and health and safety legal regime. Some states moreover have also undertaken their own pesticide reporting requirements that track usage amount and exposure. California for example adopted the Farm Worker Health Act to monitor pesticide exposure and protect workers. To the detriment of farm laborers however the State also approved the use of methyl iodide asserting that its decision followed extensive research.

Methyl iodide is employed to fumigate the soil before the planting of strawberries and yet scientists characterize the pesticide as "one of the most toxic chemicals one earth." Many strawberry owners nonetheless insist that its use is critical to producing and harvesting the fruit. Against such assertions it is difficult to reconcile the use value of methyl iodide against its well established links with inter alia cancer and miscarriages and the host of health challenges farm laborers experience.

Numerous hearings and extensive protests from farmworkers, environmentalists and activists have failed to obtain the reversal of the State's decision to approve the use of this particular pesticide. The State's resistance to reconsider its decision renders it difficult to reconcile the well established importance of farm laborers in feeding the nation. This inaction thereby obligated farmworkers and environmental groups to file a lawsuit earlier this year challenging the approval of methyl iodide in the State. The lawsuit is also grounded on assertions that the State violated various laws that are aimed at protecting workers.

It is no secret that farm workers "load, mix and apply hazardous pesticide chemicals, including organophosphates and carbamates." Yet remedies law chases causation to establish damages for work related injuries. In innumerable instances farmworkers lack health insurance and the financial means to establish the causative links with the health related injuries from pesticide use.

Although causative links present formidable challenges a few obvious clues exist as to the immediate impact of methyl iodide on workers. Farmworkers for example tell us that: ". . . .first we smell the pesticides, then our eyes burn, our noses run and our throats hurt." Is the long sought after ban of methyl iodide forthcoming?

Perhaps as a "warning" to recalcitrant states and perhaps responding to the numerous panels and hearings on the pesticide's impact on workers, the Environmental Protection Agency, announced it would reconsider allowing the use of methyl iodide. It recently opened a commentary period to the public.

April 30th however ends the comment period. If the assertions of the USDA, agricultural employers and others constitute value as to the importance of farm laborers then time is of the essence.

Third year law student and my research assistant for two years, April Stancliff contributed to this posting.

The Patent Conference

Early in A Connecticut Yankee In King Arthur's Court, the titular Yankee, Hank Morgan, upon becoming King Arthur's "perpectual minister and executive", explains the importance he places on patents:

the very first official thing I did, in my administration—and it was on the very first day of it, too—was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backways.

Although this sentiment appears in a work of humor, many earnestly share Morgan's views on the importance of patents.  The recent explosion of patent scholarship reflects the growing perception that patents and patent systems are crucial instruments of public policy - instruments capable of generating benefits and costs for society.  Now, the increasingly important field of patent research has its own annual home:  The Patent Conference.

On April 8, 2011, the inaugural Patent Conference will be held at the University of Kansas School of Law.  The Patent Conference will be an annual event featuring the bleeding edge of patent scholarship.  This year, The Patent Conference schedule features research on patent infringement, patent damages, patent courts, empirical patent analysis, patent litigation, interdisciplinary patent studies, and Asian patent law.  Here is a press release from the inaugural host institution, the University of Kansas School of Law, describing the event:

Conference to bring world’s top patent scholars to School of Law

LAWRENCE — A critical mass of the world’s foremost patent scholars will present their latest research at the inaugural Patent Conference at the University of Kansas School of Law. 

The Patent Conference, or PatCon, will run from 8 a.m. to 6 p.m. Friday, April 8, in the Stinson Morrison Hecker Lecture Hall, 104 Green Hall. The event is free and open to the public.

The conference is a cooperative effort between the KU School of Law, the Chicago-Kent College of Law, the University of San Diego School of Law and Boston College Law School to hold an annual conference at which patent scholars in law, economics, management science and other disciplines can share their research. After this year’s inaugural conference, future gatherings will rotate among the four schools, returning to KU in 2015. 

“The scholarly study of patents has exploded in importance over the last decade,” said Andrew Torrance, a KU associate professor of law and an internationally known scholar in patent law, intellectual property law, food and drug law, and biodiversity law. “It has undergone a rapid transformation from a small niche field within intellectual property, largely overshadowed by copyright and trademark law, to an academic discipline that now attracts the enthusiastic attention of schools of law, business, public policy, engineering and medicine, as well as departments of economics, history, science and technology studies — and even science and mathematics.

“Clearly, the time has arrived for the field to have a permanent academic home, which is why we decided to found The Patent Conference.”

Torrance cofounded the conference with his colleagues David Schwartz, Chicago-Kent College of Law; Ted Sichelman, University of San Diego School of Law; and David Olson, Boston College Law School.

Nearly 40 patent scholars will make presentations in a series of panel discussions. Broad themes will include patent infringement, patent damages, patent courts, empirical patent analysis, patent litigation, interdisciplinary patent studies and Asian patent law. A complete schedule is available on the law school website.

“We are delighted that the response to the inaugural Patent Conference has been so positive,” Torrance said. “With almost 40 confirmed speakers from dozens of institutions in attendance, many of the finest patent scholars in the world will be presenting their work right here at KU School of Law. In a world that depends on technological innovation more than ever before, the cofounders and I hope this event will help spur the field of patent research to even greater success.”

The Patent Conference is sponsored by Shook, Hardy & Bacon LLP and the KU School of Law.

Patent law has attracted considerable controversy of late.  Patents are capable of inspiring both passionate support from those who believe they are necessary to spur technological innovation, on the one hand, and grave concern from those who oppose the monopoly rights to exclude others they confer upon their owners and favor more open models of innovation, on the other.  The importance of these and other issues has led to the founding of The Patent Conference, which will provide an annual venue for the free exchange of ideas and research about patents.

More agricultural law at LEXVIVO.

Agricultural & Food Law at UCLA

UCLA School of Law is also moving forward to address cutting edge issues of food and agricultural law.  I have been delighted to be in touch with LL.M. Program alumnus, Michael Roberts who reported on his work at UCLA as an adjunct professor.  Michael serves as Special Counsel to the Roll Law Group LLP, a law firm that exclusively represents Roll Global Corporation, a private holding company headquartered in Los Angeles with farming and food companies worldwide.  Michael also directs the Center for Food Law & Policy.

And, my aglaw posts have yielded a new contact, Distinguished Professor Grace Ganz Blumberg.  Professor Blumberg plans to teach an Agricultural Law course in the near future, emphasizing critical environmental and labor law issues, relying largely on Food Farming & Sustainability: Readings in Agricultural Law.  UCLA may thus be the first top-twenty law school to offer an Agricultural Law class since the early days of agricultural law studies in the 1940's when Harvard and Yale both offered courses.

Last fall, UCLA brought Michael Roberts on board as an adjunct professor to teach a new seminar course, Consumer Food Law and Policy.  This new course was open to 2nd and 3rd year law students as an elective.  Although it was initially capped at sixteen students, twenty-four registered and were allowed to take the class -  exceptionally high interest for a first time class.  Michael noted that there seemed to be a high level of interest in food issues among the UCLA law students.

The course looked at food law and policy issues through the legal prism of the consumer, giving particular focus to "urban" issues related to food/agriculture.  For example, the class considered some of the current debates involving food regulation and examined the assumptions about consumers made by legislators and government agencies in drafting policy.

Michael brought in a number of guest speakers from California and nationally. The class covered food safety, labeling, advertising, nutrition and food policy in general, in the context in the context of local, regional, and international perspectives.  The course is expected to be a regular offering each Fall.

Michael also reports that he has been meeting with the UCLA Dean, Rachel Moran to discuss his work as Director of the new Center for Food Law & Policy in Los Angeles.  The mission of CFLP is "to advance thoughtful policymaking through innovative legal scholarship to help consumers make informed food choices."  Each year,  CFLP will host a seminar on a timely issue relating to food law and policy.  CFLP solicits prominent lawyers, doctors, and other professionals  to author papers on the given topic for that year. The papers are self -published by CFLP, and the authors presents their work at the yearly seminar.  The 2011 seminar will focus on "law as a tool to address the problem of obesity."

Again, exciting work to report on!