by Dennis Crouch
[Prof Hricik may have more to say on this conflict-of-interest case, but I believe it is an interesting one and important for discussion.]
Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, SJC-11800.
A patent law malpractice case is pending before the Massachusetts Supreme Court that has major implications for patent prosecution practice. Many patent patent attorneys and law firms develop technology-specific specialties as a marketing strategy. The professional responsibility problem arises when the strategy is successful enough to attract multiple clients with substantial technological crossover. Of course, this likelihood is intensified in larger law firms where more lawyers means more clients and more (potentially overlapping) invention disclosures.
Back in 2003, Maling hired Finnegan Henderson to prosecute a set of patent applications relating to screwless eyeglass hinges. According to the allegations, it turns out that Finnegan was also representing a competitor (Masunaga) with a similar invention in the same screwless eyeglass hinge field. Finnegan says that these were “attorneys in different offices.” Neither client was informed or gave consent to this alleged conflict of interest and Maling argues that Finnegan’s “independent professional judgement” was impaired by the conflicting representation in violation of the Massachusetts Rules of Professional Conduct. Among the various harms Maling alleges a delay in filing his application and wasted efforts on technology not sufficiently protected by patent.
The state trial court dismissed on failure-to-state-a-claim for the civil action with the court finding no direct adversity of interests and no nexus between the conflicting representation and the claimed harm. The Supreme Judicial Court of Massachusetts (MA’s highest court), is now focused on the question of whether an actionable conflict arises when a single law firm files and prosecutes patent applications for similar inventions on behalf of two existing clients.
Massachusetts law:
- 1.7(a): “A lawyer shall not represent a client if the representation of that client will be directly adverse to another client.”
- 1.7(b) “[A] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.”
Finnegan here argues that the allegations of filing and prosecuting a competitor’s “similar” invention is “insufficient” to even suggest a conflict of interest. Rather, Finnegan argues an ethical conflict only arises if one of the client’s inventions are blocked by patent disclosures made by another client.
The distinction between “similar” and “novel and non-obvious” is well-illustrated by the Maling and Masunaga inventions described in the patents at issue in this case. Both inventions attempt to solve the problem of how to construct an eyeglass frame without utilizing screws. As the PTO concluded, however, each patent claims a novel solution to this problem. . . .Here, there is no allegation that Maling and Masunaga ever were “directly adverse” to one another, in patent proceedings or otherwise. Maling cites to no case law, nor is Finnegan aware of any, in which a court has held that parties are directly adverse to one another simply because each seeks to patent technology in the same field. Such a standard, moreover, would be inconsistent with the statutory-framework discussed above, which recognizes that multiple patents may be granted in the same field so long as each claims a “new and useful” invention, or a “new and useful improvement thereof.”
Finnegan also explains that conflicting-out large law firms would make it difficult for inventors to find representation — quoting Hricik as saying that “a rule that limits a firm to representing only one client in a particular technical field ‘imposes unnecessary costs on lawyers, clients, and the system.'” Hricik & Meyer, Patent Ethics: Prosecution (2015).
In his brief, the plaintiff-appellant argues that its allegations of violation and harm are sufficient to overcome a motion to dismiss. Their brief does not detail an explanation of how similarity should be treated.
In an amicus filing, a group of major law firms, including Knobbe Martins; Honigman Miller; Nixon Vanderhye, and others arguing that direct conflict issues only arise if the inventions are so close as to lead to an interference (pre-AIA).
The amicus brief suggests that the rules may be different post-AIA because the new law sets up more of a race to the PTO (first-to-file vs first-to-invent). This, of course, is disingenuous as the pre-AIA system included a large number of adverse impacts caused by delays in filing.
One interesting issue that arises here is that Maling had Finnegan conduct a pre-filing prior art search in 2003. At that point, the Masunaga patent was on file, but not yet published and so did not turn-up in the search results – even though Finnegan attorneys knew of the reference and knew that it was prior art.
Michael McCabe has more of a discussion of the case on his IP Ethics and Insights Blog.
= = = = =
Most civil-action malpractice claims fail because of the difficulties of proving harm. At the USPTO and State Bars, mere violation – even without client harm – is actionable as a violation of the rules of professional responsibility. It will be interesting to see how the USPTO treats this case.
= = = = =
Read the Briefs:
Having been both a buyer and seller of legal services – when you are on the purchasing side – you do – and should expect a degree of loyalty from your lawyer – and his firm. Patent prosecutors – have long been my bone of contention – they never see a conflict of interest and almost never seek a waiver. Indeed, famously some years ago a major prosecution firm – tried to get client waivers from both clients so it could represent both sides in an interference. So what happens when you are subsequently litigating a patent – and the other side used the same firm – and there is good evidence of IC? Pretty hard to attack your own counsel. That said, at least one patent counsel that I retained was pretty good at flagging potential conflicts and asking for waivers. In a tight two player market – which this looks like – Finnegan should have ask for waivers. Of course the mega-sized firms would be against this – and since they stack most of the IPO and bar positions – I can see – another ‘patents are the red headed step child of law’ holding from a Mass. court.
Supreme Court Trend Against Patent Exceptionalism
There has been a recent theme in Supreme Court jurisprudence that patent litigation is not exceptional and is subject to the same procedural rules and standards as all other litigation in federal courts.115 In the 2006 eBay decision, the Supreme Court granted certiorari to determine the appropriateness of the Federal Circuit’s “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” The Court determined that the Federal Circuit’s exceptional rule for patent cases was not appropriate, holding that the “traditional” four-factor test applies “with equal force to disputes arising under the Patent Act.” The Court made clear that “a major departure from the long tradition of equity practice should not be lightly implied.”
The next year, in MedImmune, the Supreme Court again overturned an exceptional rule created for patent cases, rejecting the Federal Circuit’s “reasonable apprehension of suit” test for declaratory judgment jurisdiction. The Court held that the proper test in patent cases is the generally applicable one, that is, whether “under all the circumstances . . . there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
This trend continued in 2013 in Gunn, where the Supreme Court limited the scope of the Federal Circuit’s jurisdiction over state law malpractice claims and rejected the Federal Circuit’s rule that jurisdiction lies wherever a question of patent law is a necessary element of the malpractice claim.121 The Court applied the standard four factor test for whether there is federal jurisdiction over a state law claim, and determined that there was no jurisdiction because the issue of patent law raised by the malpractice claim at issue was not of substantial importance to the federal system as a whole.
SOURCE: AN INFAMOUS ILLUSTRATION OF PATENT INFRINGEMENT PLEADING: FORM 18 AND CONTEXT- SPECIFICITY
AUTHOR: ANDREW C. MICHAELS
From eBay: The court’s categorical rule is also in tension with Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 422-430 (1908), which rejected the contention that a court of equity has no jurisdiction to grant injunctive relief to a patent holder who has unreasonably declined to use the patent.
Add to that, this:
“[S]ome patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves. Such patent holders may be able to satisfy the traditional four-factor test, and we see no basis for categorically denying them the opportunity to do so.”
When there is continuing infringement and the patent owner refuses to license, which he has a right to do under Continental, must a court deny the injunction and force the PO to sue again, and again and again, wasting everyone’s time and judicial resources?
LOL clown car.
From the manner in which the anti-attorney animus outpaces any sense of critical thinking, combined with the Infringer’s Rights taint, our amorphous friend probably won’t like this part of the decision provided by Ned:
“An inventor receives from a patent the right to exclude others from its use for the time prescribed in the statute, and the right is not dependent on his using the device or affected by his bonuses, and, except in a case where the public interest is involved, the remedy of injunction to prevent infringement of his patent will not be denied merely on the ground of nonuser of the invention.“
Whoops autocorrected…
“or affected by his bonuses”
Should read
“or affected by his nonuse”
Are you kidding? Another reason? How about the general rule of American jurisprudence that INJUNCTIONS ARE NOT APPROPRIATE WHERE DAMAGES PROVIDE ADEQUATE RELIEF.
>INJUNCTIONS ARE NOT APPROPRIATE WHERE DAMAGES PROVIDE ADEQUATE RELIEF
Yes clown (who is likely being paid to post), but given that the patent right is to exclude how can damages be adequate?
Oh sorry, reality in lowercase letters is never as good as a paid bloggers propaganda in capital letters.
Clown does not seem to understand that damages are for past infringements and do not apply to present and future. Forcing the patent owner to repeatedly sue for now willful infringement is absurd.
Clown, damages are for past infringement. Unless the infringer voluntarily decides to desist, there is no choice but to sue again, and again and again.
Continuing infringement is a classic reason for an injunction. Think nuisances.
Look it up: link to tinyurl.com
I just figured I should chime in and say that I always prosecute patents for direct competitors on Inventions on Similar Technology without Disclosure and Waivers.
I don’t think “prosecute” was the word that you were looking for.
Your role is called something else.
I posted as a reply before, but I will state this here.
Dennis, the Boston Patent Law Association also filed a brief–maybe people would have wanted to know that. If anyone wants to read all the briefs, you can click the links below.
link to ma-appellatecourts.org
The plaintiffs brief includes the complaint (in my link, not the patentlyo link).
Left out from the question is that the plaintiffs obtained four issued patents–and frankly I think the statement that the plaintiff alleged he had inadequate patent protection is flat out wrong–that is not in the Complaint at all. All the reply and amicus briefs note that the plaintiff has not pointed to any weakness in his patent due to the concurrent representation.
This is a motion to dismiss for failure to state a claim–it would be useful to read the complaint.
James: I think the statement that the plaintiff alleged he had inadequate patent protection is flat out wrong–that is not in the Complaint at all. All the reply and amicus briefs note that the plaintiff has not pointed to any weakness in his patent due to the concurrent representation.
As I understood it, the allegation isn’t that the patents he obtained are factually “weak” but that there was a delay in filing (which could certainly cause them to be weaker than they otherwise would be) and “wasted efforts on technology not sufficiently protected by patents.” I wonder how or whether those allegations relate to the subject matter conflict alleged here.
Me too…how those alleged “delays” related to the “conflict” are not in the complaint = 12(b)(6) dismissal.
Right. That firm has several hundred million I revenue and they delayed filing for some dipshit company that none of us have heard of…notice that he filed pro se (really, his case was so strong he couldn’t get a reputable lawyer to shake done that firm?) bullshit meter going off yet?
Boston Patent Law Association brief — what a load of bullshit.
There are 45,000 patent practitioners licensed before the USPTO. The argument that the public will be denied access to qualified patent specialists is ludicrous self-serving garbage.
It would be useful to read the complaint which is attached to the brief on the court site. I don’t know why the complaint isn’t linked here. The allegations are bare bones that there is a “conflict” and that someone was “harmed” because the patents are “similar”. If that is all you have to say to shake a firm down (big or small), that’s a problem.
link to ma-appellatecourts.org
Is this method 101 patent eligible? Comments? link to businessinsider.com
Product of nature. Not a patentable discovery.
Patentable or not, what are you going to do, go around suing doctors who carry a ruler and a peanut?
Seems that the science illiterate judiciary have held all diagnostic methods like this to be ineligible. So, I’d have to say under Prometheus, no.
Should be. But, the SCOTUS gets its science and cognitive model of innovation from Disney movies.
Good response
Use of smell as a diagnostic tool is documented back to Roman times. Loss of sense of various smells in Alzheimer’s and other diseases has been long document and used as a diagnostic tool for confirmation or for rejection of a diagnosis.
As described, the procedure looks like a standard diagnostic tool combined with an natural phenomenon. (It looks more useful for diagnosis rejection than for diagnosis confirmation.) In either case, the procedure looks 101-ineligible.
Now if I combined a means to deliver various smells automatically with MRI or PET scans to light up various areas of the brain, I might have a tool for automatic confirmation or rejection of a diagnosis of a number of diseases, and I might be able to right a number of claims that were directed toward systems, methods, or devices and that could not be rejected as ineligible under 101.
You know whenever you see reference to the ancient past rather than a real comparison of the invention to real prior art that you are dealing with a witch hunter. Gee, let’s abstract away all the details, ’cause, ’cause, the justices that watch Disney say we can.
>Now if I combined a means to deliver various smells automatically with MRI or PET scans
So, let me paraphrase, if I were to obscure the invention with unnecessary machines I might get it around the PTO.
What happened to reality? When did it become possible to fabricate reality? I guess the Pope (SCOTUS) says the Sun goes around the Earth so it does.
Doctors have been looking at the connection of smell to degenerative neurological nerve disease for hundreds of years. Here is a 19th century lecture.
link to books.google.com
Nothing really new or innovative was described in the videoclip. I know from having read hundreds of articles on the subject when in the late 1970s I was part of a team developing PET and other noninvasive imaging technologies.
“So, let me paraphrase, if I were to obscure the invention with unnecessary machines I might get it around the PTO.”
As for technological combinations, I like the relatively new devices that can electronically measure the eye and automatically generate prescriptions more accurately than old-fashioned eye chart techniques.
Have you ever tried patented Zeiss automated eye examination technology? It’s great.
link to bdlive.co.za
Olfactory diagnostic and measurement technology could be equally automated and objective, but the described peanut butter test is obvious and ancient. If someone wrote a claim to it, it would just be an attempt to claim patent-ineligible information about a natural phenomenon.
The Mellins I-style Zeiss Experience is, of course, patented technology.
link to bizcommunity.com
The way real patent law works is you compare the claims to actual prior art. The gist of, gee other people have been thinking about something like this for a long time is witch law. Witch law doesn’t acknowledge hindsight. Witch law gists away all reality.
The point is that maybe it is obvious–maybe. But, then let’s see a similar test that could be used to reject a claim to the method.
(That is the way real patent law works. It is in the weeds real work type of game. It isn’t let get a bourbon and think it over on a bar stool game.)
Compare the claim with the “actual prior art” do you Night? And are earlier filed applications at the USPTO part of the prior art?
What if the earlier application on pretty much the same subject matter was filed by your own law firm and written by the guy sitting at the desk next to yours. How much comparing do you and your colleague at the next desk do, in those circumstances? And when exactly? Before the respective patents issue? Before the respective applications are published by the USPTO?
You do realize that you are mixing the patentability and patent eligibility views, right MaxDrei?
You might want to apply a little discipline to your thinking and remember the topic that Night Writer is referring to.
Just a thought…
…or not – my mistake.
Mea culpa
Max, it is a fair point. I do think that many law firms are lax on this issue. The problem is that prosecution is such a low profit operation compared to other areas of law. The other problem is that often there is a huge ramp up to learning a technology and patent prosecutors can only be expert in so many areas. So, it is hard to turn down work in an area where there are already experts at the law firm.
Not sure what the solution is. But, there is a problem. The reality is that the clients do get a benefit of working with attorneys that have become experts in a narrow field, which helps them.
As practical matter, my guess is that this will be fought tooth and nail by the large IP boutiques. Their business models depend on getting lots of work that is similar.
*CORRECTED*
Use of smell as a diagnostic tool is documented back to Roman times. Loss of sense of various smells in Alzheimer’s and other diseases has been long documentED and used as a diagnostic tool for confirmation or for rejection of a diagnosis.
As described, the procedure looks like a standard diagnostic tool combined with a natural phenomenon (pure information).
It looks more useful for diagnosis rejection than for diagnosis confirmation. In either case, the procedure looks 101-ineligible.
Now if I combined a means to deliver various smells automatically with MRI or PET scans to light up various areas of the brain, I might have a tool for automatic confirmation or rejection of a diagnosis of a number of diseases, and I might be able to WRITE a number of claims that were directed toward systems, methods, or devices and that could not be rejected as ineligible under 101.
>As described, the procedure looks like a standard diagnostic tool >combined with a natural phenomenon (pure information).
What kind of psychotic nonsense is “natural phenomenon (pure information)”?
There is no meaning to that. How about try to just provide prior art to elements and a reason to combine?
Witch words. Witch words. Witch words.
link to nytimes.com
This doesn’t make any sense. J. Stevens said the way it works is you write on a piece of paper what you want the computer to do then you give the piece of paper to a clerk who programs the computer to do it.
A research center for programming? These people need to realize that the judiciary have proclaimed that no research centers are needed and that a general purpose computer includes all possible information processing methods and devices. They may get burned at the stake for this behavior. I hope the DOJ didn’t read this article.
To focus the topic, though, probably it is best to focus on the claims and the consent of the client. My guess is that this won’t have a giant effect no matter the outcome because it will simply force the big law firms to have the clients sign consents and be a little more careful about separating people that work on different clients. Not a huge deal, but it will add some cost.
OT, but can you believe that the ridiculous Lessig whose book not only was full of misrepresentations but who never addressed the substantive criticism of his book. That is key by the way. We have these academics that are publishing and refusing to address the substance of the criticism. Harvard is forever in my mind a place that needs to be reduced in stature and power. A place that has very serious problems if it breeds Lessig type of people.
On that note, how is Lemley coming with explaining how he protects IP at his start-up. If the answer is draconian employment agreements, then Lemley should be forever removed from IP. Every economist agrees that strong requires employees to be not tied to a company or removed from a technological area. But, again, we have an academic that pushes judicial activism points of view and refuses to respond to criticism.
Is “separating people who work on different clients” an adequate solution?
The IP-Kat blog recently had reason to delete particular comments from one of its threads. Unfortunately, active gardening of the threads is once again needed, here on this blog too.
MaxDrei misses the irony that it was one of his posts that initiated the removal…
Still haven’t learned your lesson, have you good sir?
You were rightfully chastised here.
And over there, You sought to “blame me” for detractors that stoop to low levels here at Patently-O.
You yourself engage in the sniping and the lack of substantive discussion, especially when your foibles are in the cross-hairs. Perhaps you should simply toughen up and be able to defend (or explain) your positions without the cover of false politeness?
Thanks for the playback anon. I enjoyed reading again the words I wrote, now deleted from the IP-Kat blog.
But I don’t understand. What’s all this about somebody impersonating me? You write:
“…that was after the lesson provided to you by someone impersonating you…”
Who? When? Where? Could it be that they are so good at it that I haven’t even noticed yet?
Your falsity remains, as does your refusal to actually learn
To wit:
MaxDrei said…
So, to prove a point, should I say something about chickens…?
Monday, 31 August 2015 at 04:29:00 BST
MaxDrei said…
Oh look, a false MaxDrei. I was sound asleep at 04:29 this morning, when Comment #4, just above was posted to this thread. It wasn’t me guv, who posted it above. Not my style. But regular readers will have realised that already.
I take the event as evidence that the US Anon bothered by the poster impersonating him on Patently-O.
Thus, the impersonation problem devaluing threads is one attached to the poster variously known as “anon” (on Patently-O”) and “US Anon” (here on this blog). He writes that his post, impersonating me, is to “prove a point”. That, it certainly does.
Monday, 31 August 2015 at 11:01:00 BST
THE US anon said…
…and much like MaxDrei misses the point on the Patently-O threads (where he himself was rightfully chastised by EG for his ad hominem against THE US anon, so too here, MaxDrei misses the point.
Think man – think.
Monday, 31 August 2015 at 12:32:00 BST
So – exactly like here – you again are part of the problem, seek to blame me, and then get busted for doing so.
STOP BEING AN ARSE.
FYI — “AT THE CORE OF AMERICA’S COMPETITIVE EDGE: WHY SOFTWARE IMPLEMENTED ARE—AND MUST REMAIN—PATENT ELIGIBLE”
David J. Kappos and Aaron Cooper
link to iam-media.com
Kappos long ago lost me because if his disengenousness. I decline to read anything of his.
It does not fit Ned’s windmill curse-ade, so Ned’s eyes get clenched right.
welcome to the ec(h)osystem.
No, anon, it is because Kappos has never distinguished between software used in systems like Alappat or like Diehr from software that is not, but rather simply is used to implement non statutory business methods and the like. Without making such a distinction, his whole argument is a lie because all his examples are of the Alappat or Diehr variety where the programmed computer is use to improve machines or process: a graphics processor in Alappat and a rubber molding process in Diehr.
I see this disingenuous type of argument a lot from advocates of the State Street Bank kind of invention.
The only thing disingenuous is your inability to recognize that machine components and manufactures in and of themselves are meant to be protected by patents (without the application of the “that thing” type of philosophical agenda).
No, anon, programmed computers without more are not new machines.
What does “without more” mean, Ned?
Are you making an inherency argument?
Are all future programming somehow “magically” already in there?
Sorry Ned – but straight up factually, logically, and yes, given the holding in Alappat, legally, you are wrong.
^^^ case in point with the icons. This post with a different icon was in fact made by me in the same timeframe upon the same device with no manipulation by me of any system parameters.
All you’ve done Prof. is add noise while aiming at the wrong problem.
Again.
I would also point out that the single poster under the pseudonym “RICO” has SIX different icons.
Ned,
The process category is an equal category as to the hard goods categories.
It is not a handmaiden, sub-category that is only a path to the other categories. You really need to disabuse yourself of the varient of the Justice Story, the English don’t allow true process patents so we shouldn’t, bias.
Congress caught up to that but of judicial malarkey and eliminated it in 1952 – the part in 35 USC 100 that you refuse to recognize, no matter how politely I bring it to your attention.
Why is it that such cannot break into a dialogue with you?
As was said in Flook, mathematical processes are not eligible so not all processes can be eligible. New machines, new manufactures and new compositions are eligible without more.
Software is not math.
Software is in fact a manufacture.
So let’s tally up Ned and his proposition of “New machines, new manufactures and new compositions are eligible without more.“…
machine – Oops, strike one.
compositions – Oops, strike two.
manufactures – Oops, strike three.
Back to the bench for you Ned – you have your three strikes and are out.
Some software is math. If it is logically equivalent to a sequence that could be run on a Turing Machine, it is equivalent to a pencil and paper calculation, and it is hard to find patent-eligibility. After all, the Jacquard Loom (a sort of turnkey weaving computer) was patent-eligible (in 1802), but no one ever considered patenting the programs, which were essentially a computerization/routinization of pencil and paper designs. The same reasoning obtains today.
Some software is math. No it isn’t. It may be equivalent in some sense, but it is not math anymore than the chair I am sitting on is math.
Raise your game. Think.
Joachim is dead wrong – software is not math.
Likewise, he tends to the fallacy of imbibing in non-Useful Arts with the attempted incorporation of the Jaquard loom.
Was the concept carried over?
You bet.
Was the loom itself and its utility a DIRECT comparison?
Not a chance.
Why? Easy: Useful Arts.
What does anon believe the Church Turing thesis says?
Does he believe computability theory as developed in the 1930s has no application to understanding the application of §101 to software technology?
Joachim,
This has been discussed previously.
You are conflating math, applied math, and the philosophy of mathS.
At some level you need to realize that the bottom line take away is that software just is not math.
It is no more math than is engineering is math.
Or, if you want to get all Tegmark, that everything is just mathS.
At that point though, patent coverage converges such that THAT version of math is rightfully covered under patent law – getting TOO esoteric does not save the day for the anti-patentists.
“Alice also says otherwise – you keep on “conveniently” forget what both parties stipulated to in that case: the machine category prong was met.
That just means the topic was not before the court, so you have no holding in Alice on which to rely.
It means more than that Dobu.
And let’s also wreck your attempted logic with a reference to another recent Supreme Court case dealing with compositions of matter.
No Ned, you are wrong to attempt to do make one of the four categories into a sub-category of the other three, no matter the historical lineage that may exist (in very real part, because that lineage is PART OF the problem of judicial muckery).
We’ve gone over this before in substantial detail. Please do not engage your drive-by monologuing mechanism.
Nice catch, Sticks. I just skimmed through the Paper and found it failing to satisfy.
Its concluding sentence reads:
“Let’s optimally incentivize innovation through the promise of patentability for all areas of technology.”
which is (or ought to be) clean of controversy for any member of the GATT. Who could quarrel with that sentiment?
Where the eligibility/patentability debate gets controversial is in the patentability of inventions implemented on a computer but which are inventions that are not in any area of technology whatsoever. I mean, inventions where the only novelty is in the specification of what data is going to be processed on conventional hardware by conventional software.
In my quick run through the paper, I saw no attempt to address this controversy. Kappos knows better. It appears to me that Kappos dissembles deliberately, and sweeps the difficult issue under the carpet, I suppose to suit his current agenda. In doing so, he demeans himself.
“but which are inventions that are not in any area of technology whatsoever”
Yet another of the same call of B$ for you MaxDrei.
Define “technology” in a non-circular manner, please.
If you are going to take a stand and preach, please then – when pressed – turn tail and run away.
Instead of denigrating Kappos for his “supposed” infirmity, firm up your own position.