Blow, Nocera and Collins

Everyone has questions today.  In ” ‘Suicide Conservatives’ ” Mr. Blow asks his:  What’s a party that has lost its way to do?  Mr. Nocera has his question in “Innovation Nation at War:”  Can one federal judge put a stop to the dumb smartphone patent battles?  Ms. Collins ponders “Fitness for Office:”  How do we measure a good governor? Some people seem to think physical fitness and waist size is a good place to start.  Here’s Mr. Blow:

There used to be a political truism: Democrats fall in love, while Republicans fall in line.

That’s no longer true. Not in this moment. Democrats have learned to fall in love and fall in line. Republicans are just falling apart.

Last week, the opening salvos were launched in a very public and very nasty civil war between establishment Republicans and Tea Party supporters when it was reported that Karl Rove was backing a new group, the Conservative Victory Project, to counter the Tea Party’s selection of loopy congressional candidates who lose in general elections.

The Tea Party was having none of it. It sees Rove’s group as a brazen attack on the Tea Party movement, which it is. Rove sees winning as a practical matter. The Tea Party counts victory in layers of philosophical purity.

Politico reported this week that an unnamed “senior Republican operative” said that one of the party’s biggest problems was “ ‘suicide conservatives, who would rather lose elections than win seats with moderates.’ ”

Democrats could be the ultimate beneficiaries of this tiff. Of the 33 Senate seats up for election in 2014, 20 are held by Democrats. Seven of those 20 are in states that President Obama lost in the last presidential election. Republicans would have to pick up only a handful of seats to take control of the chamber.

But some in the Tea Party are threatening that if their candidate is defeated in the primaries by a candidate backed by Rove’s group, they might still run the Tea Party candidate in the general election. That would virtually guarantee a Democratic victory.

Sal Russo, a Tea Party strategist, told Politico: “We discourage our people from supporting third-party candidates by saying ‘that’s a big mistake. We shouldn’t do that.’ ” He added: “But if the position [Rove’s allies] take is rule or ruin — well, two can play that game. And if we get pushed, we’re not going to be able to keep the lid on that.”

The skirmish speaks to a broader problem: a party that has lost its way and can’t rally around a unified, coherent vision of what it wants to be when it grows up.

The traditional Republican message doesn’t work. Rhetorically, the G.O.P. is the party of calamity. The sky is always falling. Everything is broken. Freedoms are eroding. Tomorrow is dimmer than today.

In Republicans’ world, we must tighten our belts until we crush our spines. We must take a road to prosperity that runs through the desert of austerity. We must cut to grow. Republicans are the last guardians against bad governance.

But how can they sell this message to a public that has rejected it in the last two presidential elections?

Some say keep the terms but soften the tone.

A raft of Republicans, many of them possible contenders in 2016, have been trying this approach.

Louisiana’s governor, Bobby Jindal, speaking at a Republican National Committee meeting last month, chastised his party for being “the stupid party” that’s “in love with zeros,” even as he insisted, “I am not one of those who believe we should moderate, equivocate, or otherwise abandon our principles.”

Jindal’s plan, like that of many other Republicans, boils down to two words: talk differently.

Other Republicans, like Marco Rubio, seem to want to go further. They understand that the party must behave differently. He is among a group of senators who recently put forward a comprehensive immigration proposal that would offer a pathway to citizenship for the millions of undocumented immigrants in this country.

This is a position Democrats have advocated, and it’s a position that Republicans have to accept if they want Hispanic support — and a chance of winning a presidential election.

The Tea Party crowd did not seem pleased with that plan. Glenn Beck, the self-described “rodeo clown” of the right, said:

“You’ve got John McCain, Lindsey Graham, and now Marco Rubio joining them because Marco Rubio just has to win elections. I’m done. I’m done. Learn the Constitution. Somebody has to keep a remnant of the Constitution alive.”

For Beck’s wing of the party, moderation is surrender, and surrender is death. It seems to want to go further out on a limb that’s getting ever more narrow. For that crowd, being a Tea Party supporter is more a religion than a political philosophy. They believe so deeply and fervently in it that they see no need for either message massage or actual compromise.

While most Democrats and Independents want politicians to compromise, Republicans don’t, according to a January report by the Pew Research Center. The zealots have a chokehold on that party, and they’re sucking the life — and common sense — out of it.

For this brand of Republican, there is victory in self-righteous defeat.

The sooner they drag the wretched remnants of their party to hell the better.  Here’s Mr. Nocera:

“I decided it would be fun to do patent trials,” said Richard Posner.

We were sitting in his spacious office in the federal courthouse in downtown Chicago, where, for more than three decades, Posner, 74, has been a judge on the United States Court of Appeals for the Seventh Circuit. Posner is one of the most prolific writers in the country, not just of legal opinions but of books and articles on a staggering variety of subjects.

He is also one of the most highly regarded appeals court judges. His first book, “Economic Analysis of Law,” written in 1973, “showed how economic principles could be fruitfully applied to many legal problems,” as the legal writer Roger Parloff once put it in Fortune magazine. It has had a profound effect on the law.

In recent years, Posner has done something you don’t see appeals court justices do very often. He has volunteered to serve as a district judge in lawsuits involving patent claims. One case, Apple v. Motorola Mobility, was a high-profile smartphone lawsuit. The other, Brandeis and GFA Brands v. Keebler, involved a patent for cookie formula, and was mainly of interest to the patent cognoscenti.

But “fun” is hardly Posner’s only motive. To put it more bluntly than he ever would, he is adjudicating patent cases in an effort to change a legal system that now gives companies rich incentives to bring costly, time-consuming and often prideful patents lawsuits. It desperately needs to be done.

America’s patent system is a mess. The United States Patent and Trademark Office, understaffed and overwhelmed, issues too many needless patents. Patent trolls buy or create patent portfolios whose only purpose is to extort fees from the companies that actually make the things that the patents supposedly cover. Technology companies sue competitors for billions for infringing patents that are nothing short of silly — the rounded corners on the iPhone, for instance. Google spent $12.5 billion to buy Motorola Mobility in no small part to get its patent portfolio, which became a legal weapon.

In Posner’s view, many patents are unnecessary. Patents, he believes, are important for drug companies that spend hundreds of millions of dollars bringing a new drug to market — a drug that can easily be copied by a competitor. Without the protection that a patent affords, pharmaceutical companies would have far less incentive to come up with new drugs.

But patents in fast-moving industries like technology? “When you are dealing with products that have very short lives, you often don’t need patents because by the time competitors wise up, you’ve moved on,” Posner says. Indeed, in such industries, patents — which are primarily intended to encourage innovation — have the exact opposite effect: they discourage innovation. The smartphone industry, meanwhile, led by the ever-litigious Apple, is spending more time and effort filing lawsuits over patents infringement than it is coming up with innovative new products.

Posner told me that among the things a judge can do is assign a neutral expert to assess the claims of damages from both sides. He can make sure he has a deep understanding of the issues, and can explain it to a jury in a jargon-free manner.

But by far the most important thing he has done is to change the calculation by which companies can demand damages for patent infringement. Instead of allowing companies and their experts to come up with pie-in-the-sky estimates of what they are owed by the infringer, Posner insists that they calculate precisely how much the infringing component is driving demand for the product. For things like rounded corners, it’s probably not much. “If they can meet that challenge, then fine. But it’s difficult,” he says.

Thus, in the Apple-Motorola litigation, Posner tossed the case out of court after concluding that neither party had come close to calculating damages appropriately. As the Reuters legal blogger, Alison Frankel, put it last June, when Posner rendered his withering decision, “Would any rational economic actor engage in litigation under those terms, spending millions on an apparently impossible quest” to satisfy Posner’s damages criteria?

Which is exactly the point. Just a few weeks ago, Posner severely narrowed the damages calculation in the cookie formula case. Their incentives thus radically changed, the two sides came to their senses. They e-mailed Posner to say they had settled the case (though they have yet to submit a motion to that effect).

Apple, of course, has appealed Posner’s decision in the Motorola case. If he is upheld, there is a decent likelihood that his new formulation will become the standard in the federal judiciary — and the costly patent wars, which take money from shareholders and consumers alike, will finally come to an end.

It won’t make Apple very happy. But it’s the best thing that could happen for American innovation.

Last but not least here’s Ms. Collins:

Our topic for today is: How much do we care about physical fitness in an elected official?

Gov. Chris Christie of New Jersey recently had a cross-continental shouting match with Connie Mariano, a former White House physician who said that the governor’s weight is “almost like a time bomb waiting to happen,” adding, “I worry about this man dying in office.”

Dr. Mariano’s concern is probably not at the nail-biting, walking-the-floor-at-night level. After all, she lives in Arizona, and there must be tens of thousands of overweight executives in need of attention, scattered all over the landscape between there and New Jersey. The governor’s size also does not appear to be a pressing concern for the majority of his constituents, who currently seem so enamored that they’d vote him back into office if he was too large to get out of the upstairs bedroom without assistance from emergency responders.

The governor says he’s very healthy and that “there is a plan” for losing weight. But there is also a plan for totally funding the state employee pension system. I wouldn’t hold your breath.

There’s a national accord that thin is generally better than fat. However, it’s hardly the biggest issue when you’re picking a governor. There are citizens all over the country who would trade their more compact leaders for Christie in a second. Just ask somebody in Pennsylvania. Or Illinois. The guy in Florida has the physique of a greyhound and the state is totally miserable.

In 2006, New Yorkers elected Eliot Spitzer, a man who could not possibly have looked fitter. We probably had the best B.M.I. in the National Governors Association. Just over a year later, he was gone in a sex scandal. You had to wonder if exceptional leanness might occasionally be accompanied by exceptional friskiness. As we all know, a governor in South Carolina once vanished for what his staff claimed were body-toning hikes on the Appalachian Trail when he was actually committing adultery in Argentina.

Being a governor is not normally a physically demanding job. You certainly have your crises — Christie got through a terrible one during the Sandy storm. But day to day, week to week, the effort level is often pretty much what you choose to make it. “Getting to be governor is the hardest part,” former Gov. William Weld of Massachusetts once told me. “I used to go on vacation for a week at a time, and I wouldn’t even call in.” After the Spitzer scandal, New York was virtually governor-free for several years, due to one thing or another. It wasn’t terrific, yet we got along.

New Jersey is currently awash in interesting political arguments. One of its senators, Robert Menendez, is in a veritable typhoon of ethics allegations. The other, Frank Lautenberg, is trying to decide whether to run for re-election at age 90. Lautenberg’s refusal to get out of the way and retire has posed a great inconvenience for Mayor Cory Booker of Newark, who finally got tired of waiting and just sort of assumed. “I’ve announced my intention to run, but the reality is … we’ve got a good senator,” said Booker. “He’s been loyal. He’s been there for a long time. And I think he’s got a decision to make.”

There’s nothing like “he’s been loyal,” as an encomium for 30 years of public service. Although it’s way better than Lautenberg’s defense of his colleague Senator Menendez. (“If there are infractions as they are reported, it’s too bad.”)

Running for office in your 10th decade might pose performance questions itself. Except that being in the Senate makes being a governor look like working in the salt mines. Most weeks all the critical legislative duties could be carried out while undergoing a colonoscopy. Lautenberg, who’s very wealthy and well known, is unencumbered by the normal senatorial need to raise money, get publicity and run from one 10-minute meeting to the next like a headless chicken. (Booker would be terrific at those parts.) Anyhow, if all else fails, Geraldo Rivera is looking at the Republican nomination.

But about Chris Christie. He’s also being talked about as a possible presidential candidate. Now there’s a physical challenge for you. Have you noticed what the job has done to Barack Obama? We aren’t thinking about the 2016 election yet, out of deference to national sanity. When we do, we will have to take the fitness matter seriously.

On the plus side, if Christie did run, we would get to talk a lot about Grover Cleveland, an opportunity that truly does not come up often enough. Cleveland weighed about 300 pounds when he ran for president and his supporters regarded that as an asset. (“There is a decided tendency toward corpulence — as is usually the case in vital temperaments,” wrote a campaign biographer.) Also, I will get to point out that William Henry Harrison only lasted a month, and he was thin as a rail.

I sincerely hope that Ms. Collins is making a joke about Geraldo Rivera…

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One Response to “Blow, Nocera and Collins”

  1. Val Dictum Says:

    Regarding Apple v MM I doubt the case had any value added to the Apple domain. After winning the suit Apple climbed above seven hundred and this week reached a 52 week low. Simultaneously Samsung has moved into the forefront. Call it recession bound pricing or I’ve got the same thing for less Apple is not running aground on patents nor is the survival of the commercial enterprise prima facie based on it. The issue of trademarks, patents and copyright law makes for latitude but notwithstanding judicial decree, disscent, or toleration it gives a blanket of authority to run a company from the boardroom. It upholds the values of a class dominated society.

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