THE REPUBLICAN GOAL: TO REMAIN A VIRGIN

To remain a virgin appears to be the primary goal of most Republicans in the fiscal cliff maneuverings, virginity to Republican true believers meaning never having voted to increase taxes. The easiest way to maintain one's tax virginity in the current circumstances is to do nothing and go over the fiscal cliff, let the automatic tax increases occur, and then quickly vote to reduce them, if not for everyone at least for everyone but the very rich.

If instead, a Republican, before the fiscal cliff is reached on January 1, votes to make permanent the current temporary rates on all but the very rich, his action (there aren't that many Republican hers in Congress) could be interpreted as an affirmative vote to increase taxes on those very rich. The Republican could argue that technically he was still a virgin, but technical political virginity is a tough case to make, just as is the case for technical sexual virginity among sexually active youth.

Granted, John Boehner's (most definitely not pronounced "Boner's") Plan B, which would have raised tax rates only on the very rich, was blessed by Pope Grover the First. But really, what does a Pope actually understand about virginity? Parenthetically, is virginity a requirement for being Pope, and if so, is it unquestioned virginity or just technical virginity?

Anyway, the reason the fiscal cliff mess is going down to the wire may be to enable Republicans to maintain their virginity. Instead of criticizing their actions, or non-actions, the sinners among us ought to stand in admiration of their restraint, a restraint that we sinners obviously lacked in the back seat of that '58 Edsel oh so many years ago, even if it was just a technical violation.

GUNS AND TECHNOLOGY

Here's the problem with the Constitution's Second Amendment: technology. When the Bill of Rights−with the Second Amendment−was adopted in 1791, "arms" were ye olde muzzle-loading musket, ye olde flintlock pistol, in short, ye olde old. Two rounds a minute would be a good rate of fire with these weapons.

Today, "arms" might, depending on who is doing the defining, include a fully automatic AR-15 spitting out 800 rounds per minute. How long would it take a Revolutionary War soldier to fire 800 rounds? At two rounds a minute, 400 hundred minutes, or more than six and a half hours.

So a Constitutional provision that protected the right to own a weapon firing two rounds a minute is now protecting the right to spray 800 rounds a minute? Even if the Constitutional protection is limited to semi-automatic weapons, an AR-15 in semi-automatic mode can spew 50 or more rounds a minute, depending on the quickness of the shooter's trigger finger and the size of the weapon's magazine. In the Founding Fathers' era, a shooter would need close to half an hour to get off 50 rounds.

Maybe it's time to repeal the Second Amendment, or at least adopt Justice Antonin Scalia's strict constructionist approach to Constitutional interpretation: the Constitution means what it meant when adopted in the closing years of the 18th Century. As for the term "arms," that means the Second Amendment's protection is limited to two rounds per minute.

What say you, NRA?

OVER THE CLIFF

What th' hell, Thelma, let's go over the cliff. It can't be any worse than watching the ridiculous minuet the donkeys and elephants in Washington and the talking heads there and in the Big Apple are engaged in. High school student councils across the nation do a better job of governing, and you remember what kind of dorks were on student council.

Besides, how bad can the likely consequences be? The nation would return to the tax rates of the later Clinton years. Remember those years? They were a time of budget surpluses, full employment, prosperity. W, draft-dodging Dick Cheney, and their myopic followers hadn't yet put the nation on a path to economic and fiscal disaster by cutting taxes−and consequently revenues−undertaking two wars on the nation's credit card, authorizing a prescription drug program for Medicare without paying for it, and in general making hedge fund managers look like responsible fiduciaries.

And for good measure, conducting foreign policy in a manner that would make Attila the Hun envious.

Barack is being criticized for not being a negotiator, for not buttering up the likes of John Boehner and Mitch McConnell. Maybe there's something to the criticism, although making nice with the Boehners and McConnells of the world would be beyond the ability of most sane people. But the real problem does not appear to be making nice but ideological rigidity. The Republican party of the second decade of the 21st (and maybe last) Century is in the hands of the lowest common denominator. Egged on by Fox Noise, conservative talk radio, the editorial pages of the Wall Street Journal, and their fellow travelers, the members of the lowest common denominator appear ready to take the nation into the economic abyss.

So why fight it? Let's join hands, stomp on the accelerator, and go over the edge. The uncertainty has an appeal that a future of partisan bickering, intransigence, nitpicking, and political gamesmanship lacks.

BENGHAZI: A FRAMEWORK FOR ANALYSIS

In an effort to create a Watergate-level scandal, Fox Noise and its flunkies in the U.S. Congress (talking about you, Senators McCain and Graham), are making an already murky event much more opaque. Here’s a framework for analyzing and interpreting what has transpired. The framework doesn’t provide answers but merely tries to separate the important questions and issues from the unimportant, and to highlight the complicating facets of the matter.

First, it is helpful to think of events in Benghazi as taking place in three phases: the pre-event phase, the attacks themselves, and the public explanation aftermath. Second, not just the U.S. State Department was involved. The attack was against both a State Department consulate and a significant operational center for U.S. intelligence operations. And third, the attack occurred at a moment when demonstrations were erupting in various locations in the Islamic world over an inflammatory anti-Islamic video produced by an individual in the United States.

The interplay of these factors makes for a very messy picture that is ripe for simplistic political exploitation by those so inclined (talking about you, Fox Noise).

First, consider the three phases, or timelines. In the pre-event phase, the broad issue was the security of U.S. embassies, consulates, bases, and personnel around the world. Was the security of the consulate and operational base in Benghazi neglected? Reports are that additional security was requested in the months before the attacks. But were these unusual requests, or are they common? The fact that requests were made and rejected is not in and of itself sufficient to establish negligence. Security levels are dependent in part on the perceived threat and in part on adequate resources. Tradeoffs are necessary, and within limits defensible whatever the outcome. The decision to not increase security in Benghazi is one that must be judged from a broad perspective and with a number of considerations in mind.

The actual event phase lasted only a few short hours. Questions have been asked about when the Secretaries of State and Defense were informed, when the leaderships of the intelligent organizations were informed, when the President was informed, as if early knowledge by any of these individuals had the potential for making a difference in what transpired. Given the relatively short elapsed time of the events and the remoteness of the location relative to major collections of U.S. forces, early, even immediate, notification of the highest levels of government, if it did not occur, would likely have made little difference. Complicating the situation was the lack of clarity about what was actually happening. The more pertinent issues concern the responses at lower levels of the government agencies involved. Establishing the timelines of these responses is necessary to get a clear picture of what happened, but focusing on when the President was told is little more than political gamesmanship.

Phase three of the events was the shifting public explanations that stretched over several weeks. Opponents of the Obama Administration see in the shifting explanations a conspiracy or conspiracies amounting to something on the level of a Watergate scandal. But the much more likely explanation is confusion arising from the involvement of multiple, and secretive, agencies of the U.S. Government: State, Defense, intelligence agencies, and maybe more. It would be wonderful if government were a well-functioning machine, but it’s not and that’s just the way of things. And it’s not just government. Very few large organizations, if any, operate smoothly.

Compounding the confusion was the fact that demonstrations were occurring in many locations in the Islamic world over a video produced in the United States. Distinguishing a violent demonstration from an organized terrorist attack is easy only if you’re a commentator in a comfortable safe studio and you have the time and energy to quibble over the difference between “extremist” and “terrorist.”

So did the confusing responses leave the U.S. Government looking good, or even competent? No. But were they the result of conspiring public officials trying to accomplish something that even Fox Noise can’t quite pinpoint? If your answer is yes, you have qualified for citizenship in United States of Paranoid America.

UPPER BODY STRENGTH

One of the great things about the Internets is that any yahoo can broadcast his or her opinions to the World. The World might not be listening, but that's the World's problem. Anyway, Cranky reacted negatively to a recent op-ed in Rupert's paper, The Wall Street Journal. Cranky sent the WSJ a letter to the editor, which apparently fell on deaf ears. But the World should have the benefit of Cranky's thoughts, so here is his unpublished letter. (UPDATE: The WSJ did in fact publish an edited and abbreviated version of the letter on November 20.)

Michael O'Hanlon's op-ed, "A Challenge for Female Marines" (Nov. 13), accepts without question what Cranky considers the fallacy of excessive upper body strength as a necessity for individuals in Marine or Army infantry positions. Mr. O'Hanlon cites two components of Marine Corps testing in the Corps' Infantry Officer Course: endurance and upper body strength. He gives each equal importance.

But writing as an individual who served in Vietnam for two and a half years (1966-69), was an Infantry platoon leader in an Airborne unit (the 173rd Airborne Brigade), and retired from the Army Reserve with the rank of Colonel after 31 years of service, Cranky firmly believes that endurance is far more important than upper body strength for successful service in the Infantry, particularly when the tests of upper body strength are contrived and subjective.

Mr. O'Hanlon mentions three strength standards demanded of Marine Corps infantry officers. The first is being able to lift oneself−while wearing body armor and carrying a pack−up and over walls. He calls this essential in modern combat.

But what are the details of this standard? How high are the walls: 4 feet, 6 feet, 8 feet, 10 feet? What is the combat load? Is there any research as to what and how often walls of various sizes are encountered? Or is the standard just a seat-of-the-pants estimate by someone who just happens to be blessed with superior upper body strength? During his time as an infantry platoon leader in Vietnam and later as an infantry advisor to a Vietnamese infantry unit, Cranky encountered zero walls in need of climbing. But then, that was the nature of the jungle and the rice paddies.

Second, Mr. O'Hanlon describes as also essential being able to move a wounded fellow Marine across a field to safety. Does that mean being able to lift and carry a wounded comrade? Or is dragging permitted? And is any adjustment made for whether the comrade is bigger than normal and the carrier smaller? Cranky will bet the mortgage that in few, if any, infantry companies in the Marines or the Army can every single individual carry every other individual for a meaningful distance. There just have to be some outliers.

Third, Mr. O'Hanlon notes as essential being able to haul part of a dismantled mortar to an ambush site. Finally, we have a requirement that is somewhat realistic. One of Cranky's "commands" was of a 81mm mortar platoon in an infantry company. Actually, there were only about fifteen members of the platoon, and the platoon had only one, rather than the more normal two or three, mortars, but such were the conditions in '67. Anyway, the mortar base plate, the tube, the tripod, and the mortar rounds certainly made for heavy loads. But they were loads of endurance and stamina much more than of upper body strength.

Cranky has two daughters, one a graduate of the U.S. Air Force Academy. Neither has exceptional upper body strength. But both have completed a number of marathons and several 50-mile ultramarathons. One has completed a 100-mile ultramarathon. Both have accompanied Cranky on grueling multi-week backpacking trips into remote wilderness areas in various Western states. In Cranky's opinion, each has both the endurance and upper body strength necessary for the infantry, provided the upper body strength standard is not based on a figment of some weightlifter's imagination.

A SCANDAL MAZE

This thing is really getting complicated. A short time ago it was reported that the object of Paula Broadwell's ire, Jill Kelly of Tampa, Florida, who first alerted the FBI through an agent who was a "friend," has had extensive correspondence with the current Afghan Commander, Marine General John Allen. As the cliche goes, you couldn't make this up. Here's a chart of the players. Connecting the boxes should keep the nation occupied for many months.

WANTED: BIOGRAPHER(S)

Events of the last few days have convinced Cranky that he needs a biographer. As an exemplary federal government bureaucrat for many years, Cranky enjoyed a career that could serve as a model for aspiring young federal bureaucrats. Cranky's accomplishments are many and well-known, but a detailed biography is really the best avenue for telling the complete story, for enabling the public to fully appreciate Cranky's bureaucratic greatness.

The first requirement for Cranky's biographer is that she be a she. It is well known that in most instances the deepest communications occur between individuals of the opposite sex. And Cranky's full story will require deep communication.

Also, to avoid the loss of understanding that can occur when works are translated from one language to another, a biographer for each major language should be involved. Thus, in addition to an English biographer, there is need at the very least for a Swedish biographer, a French biographer, an Italian biographer, and an Hispanic biographer.

And then there's the Orient with its many languages and huge number of potential readers. Each language will require its own biographer.

The project is daunting but the rewards will be great. Now let's get started with selecting those biographers.

OVER

Well, it's over. Apparently−and hopefully−there won't be disputes, recounts, hanging chads, and whatall. Mr. Mitt gave a gracious concession speech. And Barack gave an inspiring victory speech in which he noted the problems ahead, pledged efforts at bipartisanship, and praised the fact that the American system encourages both the airing of disagreements and their peaceful solution.

Now the tough work begins. The "fiscal cliff," budget deficits, entitlement spending outrunning revenues, the list is long. Barack sounded intent on making significant overtures to the Republican opposition. Will there be reciprocation? The common ground is there, but have we become so blinded by partisanship that we won't be able to find it?

In terms of comedic relief, the highlight of the evening had to be the dispute between the Fox Noise anchors and Karl Rove over whether the call on Ohio as a Barack victory came too early. Cranky knows that this comment is not in the spirit of bipartisanship, but Karl, you really have no business overseeing the multimillion dollar disbursements for Crossroads America. Meaning no disrespect Karl, but your talents are rather more limited. Have you thought about a Home Depot franchise?

APOLOGIES

First, apologies to Mrs. Mitt, Ann Romney. She called the other evening and Cranky said some pretty nasty, childish things to her. There may have even been some obscenities uttered, and some derogatory statements about her dancing horse Rafalca's performance in the Olympics. It was entirely unnecessary for Cranky to suggest that Rafalca rather than Seamus, the family dog, should have been strapped to the roof of the family car for the infamous cross-country trip. But Mrs. Mitt seemed to take Cranky's indiscretions in stride as she did not pause in her entreaties for Cranky to vote for Mr. Mitt.

Apologies also to Governor Bob McDonnell of Virginia. It was inappropriate for Cranky to suggest during their phone conversation that the Governor take the vaginal probe he and Attorney General Cuccinelli want to insert in Virginia women and put it up their own orifices to "where the sun don't shine."

And apologies to Mike Huckabee for comparing him during his phone call to Virginia's collection of "whack-job television politico-evangelicals who are more concerned about the collection plate than about saving souls or successful government."

Also to Barbara Bush. Cranky should not have suggested when she called this evening that the names of both her husband and sons were likely to surface in the ongoing prostitution scandal in Kennebunk Maine.

And finally to Mr. Mitt himself. When he specifically asked for Cranky's spouse by her first name, Cranky should have paused before jumping to the conclusion that hanky-panky was afoot. After all, for Cranky's spouse, greasy hair has always been a turnoff.

PAUL RYAN WINS NYC MARATHON

Barely breaking a sweat, Republican Vice Presidential candidate Paul Ryan coasted to victory in the New York City Marathon. Even the vaunted Kenyans were nowhere to be seen as Mr. Ryan posted an unofficial time of under three hours. Mr. Ryan did receive a congratulatory tweet from a "B.O., on behalf of my fellow Kenyans."

For his winning strategy, Mr. Ryan credited a Michigan dentist, Kip Litton. Dr. Litton was featured in the August 6, 2012, issue of The New Yorker magazine for his unusual marathon talents of finishing a marathon despite not being observed on many portions of the course. Dr. Litton has also performed exceptionally well in marathons in which he was apparently the only participant.

When asked about his future running plans, Mr. Ryan said it depended in part on the outcome of Tuesday's election. If he and Mr. Mitt are successful, Mr. Ryan indicated that balancing the federal budget would likely require most of his efforts. He promised, however, to bring the same intensity and attention to detail to that task as he has brought to marathoning.

AMERICANS FOR LIMITED GOVERNMENT: AN AMERICAN GESTAPO?

An organization calling itself Americans for Limited Government is sending a "Vote History Audit" to individuals in various localities across the nation. The audit contains the names of the recipient and a few neighbors, the addresses of both, and whether or not the recipient and the neighbors voted in the elections of 2004 and 2008. The audit does not say how the listed individuals voted, just that they voted. The one page audit contains the following ominous paragraph:

"As a further service, we will be updating our records after the expected high turnout for the Tuesday, November 6, 2012 election. We will then send an updated vote history audit to you and your neighbors with the results."

Limited Government?! Under what possible rationale does an organization purporting to be for limited government take upon itself the task of publicly revealing to his or her neighbors how often a private citizen goes to the polls? The ALG may not be a government body, but this invasion of a citizen's privacy is Big Brother in the extreme. If the federal government made a practice of publicizing a citizen's attendance record at the polls, you can be sure that the likes of the individuals providing testimonials on the ALG website, getliberty.org, would be screaming bloody hell. Those testimonials are by Ed Crane, Founder/President of the Cato Institute, and Republican Senator Tom Coburn of Oklahoma.

An AGL spokesperson was quoted as saying that the purpose of the mailing was only to increase participation in the electoral process. But doing so by publicly shaming citizens smacks of authoritarianism in its most virulent manifestations: Nazism and Communism.

The AGL is a right-leaning group, but this strange desire by political groups to publicly out the voting attendance record of private citizens is not confined to the right. The left-leaning MoveOn.org reportedly has a similar, although somewhat less revealing, campaign underway. In the MoveOn effort, the recipient's voting participation is scored against a neighborhood average but the records of individual neighbors aren't revealed.

Admittedly, an individual's participation in voting−not how he or she votes but how often−is currently a public record. But just because it is legal to publicize something does not mean it is a good idea. The Executive Director of MoveOn.org was quoted in USA Today as calling the practice "creepy." To say the least, that is a gross understatement.

MR. MITT AND WEIRD MONEY

In The Wall Street Journal of November 2 was an article on Mr. Mitt's financial holdings and how difficult disclosure or divestment of them would be if he were elected. The article contained selected assets valued at $1 million or more, divided into two groups: Bain-related and not Bain-related.

The Bain-related group contained two private-equity funds, a public-equities fund, an employee IRA co-investment fund, and a distressed-debt fund. The not Bain-related group contained two hedge funds, a private-equity fund, and a Tagg Romney private-equity fund. (Alert to Josh, Matt, Ben, and Craig Romney: Brother Tagg might be number one on the runway as far as disposition of Dad's estate is concerned.)

Just this selected portion of Mr. Mitt's holdings would provide all the material needed for a full semester investment portfolio class in an MBA program. How many folks in the ninety-nine percent can even attempt a definition of a private-equity fund, a hedge fund, or a public-equities fund? The only term that might be somewhat familiar to ordinary Americans is IRA fund, but even here the addition of "co-investment" likely adds confusion.

The content of the WSJ's listing of selected Mr. Mitt assets highlights two points. First, despite his forced folksiness, Mr. Mitt ain't like most of us. He is one rich dude. Second, despite his claims of being a successful businessman, Mr. Mitt is really both more and less than that. He is successful at money, but he is not a businessman who made and sold a tangible product or provided a service recognizable by most of his fellow citizens. He is someone who tore businesses apart, repackaged them, and sold the results to others.

And he did this in a time of seismic change in the world of finance, a time when the computer put money-creating power into hands of many beyond the traditional banking structure, a time when such exotic things as derivatives, credit default swaps, hedging, and electronic trading appeared and laid the foundations for the financial collapse that occurred in 2007-2009. In short, Mr. Mitt came on the scene in a time of weird money.

Mr. Mitt was a very special type of successful businessman at the dawn of the Information Age. But he doesn't appear to understand the world in which he achieved success. He speaks and appears to think in the platitudes of the fading Industrial Age. He professes to be forward looking, but in realty he is blindly rushing into the uncertain future with the intellectual tools of the fast-fading past.

A MINORITY TWICE OVER

Polling data indicate that a sizeable majority of white men are supporters of Mr. Mitt, and that a sizeable majority of old people−geezers−are similarly inclined. That makes Cranky a minority twice over. Cranky is a white guy geezer who is pro-Obama.

Where did Cranky go wrong? Back in the '60s, he didn't march in the streets, trash his college, or do drugs (he did do a fair amount of alcohol, however). He even ended up in uniform in Southeast Asia, trying to halt them Commie hoards. Moreover, he maintained a connection to that uniform for over thirty years. So shouldn't Cranky be in the ranks of Mr. Mitt's most stalwart supporters?

Well, here's the problem with Mr. Mitt's most stalwart supporters. They enthusiastically adhere to the late William F. Buckley's definition of a conservative as one who stands "athwart history yelling 'Stop!'" Mr. Mitt reeks of the 1950s when white guys were both in the majority and top dogs, and when today's geezers were experiencing blissful or at least tolerable childhoods. In short, Mr. Mitt's most stalwart supporters seem to lack a sense of time marching on.

The future ain't gonna be easy, folks. The Information Age and its tool, the computer, are posing challenges we are only beginning to perceive. Both Mr. Mitt and Barack want to create jobs. But the computer is eliminating jobs, and its job-elimination propensities will likely accelerate. After two centuries of industrialization, the uneasy relationship among job creating technologies, increasing productivity, meaningful work, and unemployment might be tipping toward the latter.

Looking back is not where the future will be found. Barack may not be perfect, but at least he gives an impression of someone who knows the future will require adjustments in many areas. Mr. Mitt doesn't give that impression. Mr. Mitt exudes the past, and the past is no longer within reach.

EARLY VOTING: REALLY SUCH A GOOD IDEA?

Early voting has become a big part of the election of 2012. More and more states are jumping on the bandwagon, either allowing early voting without restrictions or loosening the restrictions on absentee ballots. The later path, being followed in Virgina for one, is creating a number of fibbers as voters claim they have to vote early because they will be away from their homes on election day, when in reality they won't. What if the election in Virginia is close and one side or the other starts going after likely fibbers to have their ballots disqualified and their persons fined, jailed, or whatever?

Can't happen, you say? Then you haven't been paying much attention to recent American electoral history.

But early voting of any sort−whether without restrictions or with just the loosening of absentee ballot restrictions−poses another problem that might cause significant problems. What if after voting early for a candidate you learn of some really nefarious thing about him or her, so nefarious that you want to take back your vote. The right, of course, would give you its version of such a vote changer: the discovery that Barack's Hawaii birth certificate was a fake.

On the other hand, Mr. Mitt might have some things in his past that could be vote changers. Evidence has already surfaced that in his youth Mr. Mitt was something of a bully, on one occasion even forcibly shaving the head of an individual who was not part of the in-crowd at a highfalutin prep school. But there are other possibilities. Maybe Mr. Mitt was born in Mexico, the birthplace of his father, and the Michigan birth certificate is fake.

Or maybe during his time as a missionary in France he experienced a bit more French "culture" than he is letting on. Or maybe a lot more French "culture," if you catch my drift. Maybe, just maybe, mind you, he drank wine and coffee, smoked disgusting French cigarettes, and had a fling with Catherine Deneuve. Just speculating.

Anyway, this early voting thing has the potential for significant problems, maybe not in this election, but the future goes on for a long time. Someday many decades from now, early voting might install a candidate in office who was shown before the end of the voting period to be a liar, scoundrel, or worse. That future generation would look back to this time and ask, "How could those clowns come up with such a ludicrous idea as early voting?"

SANDY AND CAMPAIGN ADS

The electricity on the street was out only 24 hours! And the even better news is that the local cable provider is not yet reconnected, so no Fox Noise! Electricity, warmth, and no Fox Noise. It don't get much better. Unfortunately, other folks nearby won't have electricity for awhile. But they don't have Fox Noise either!

Inhabitants of the so-called battleground states have had to endure an avalanche of campaign ads. Oh, for the good old days when it was just commercials for cars, soap, nasal spray, headache remedies, erectile dysfunction treatments, and the like. But at least many of the commercial ads come with disclaimers and warnings. Not so the campaign ads.

Some warnings that might be appropriate for campaign ads:

) Do not take with alcohol, caffeine, amphetamines, uppers, downers, or any other forms of stimulants or relaxers.

) See your doctor if your erection lasts more than four hours.

) See your doctor if you have an erection.

) Do not be worried about nausea and vomiting. They are normal reactions.

) See your doctor if you don't experience nausea and vomiting.

) Do not watch if you are attempting to cure a nicotine, alcohol, or other drug addiction. This ad will make the effort exponentially more difficult.

) Do not watch if you are attending anger management classes.

) Do not watch in the presence of breakable items, such as glass and small pets.

The Campaigns should also adhere to warnings. One warning is to be careful what your ad is collocated with. For example, the juxtaposition of a link to Mr. Mitt's official site with a video of Hurricane Sandy destroying a house in North Carolina might not be ideal.

MR. MITT AND HURRICANES

Getting the daily blog in before the electricity goes. Recall that the Republican convention was disrupted by a hurricane or tropical storm or something. Now another major storm is arriving as the election approaches. What is the common denominator? Mr. Mitt. The guy brings bad weather. Think about it as you cast your vote, if you haven't already done so.

Opps, that last gust was a doozy. Guess Mr. Mitt got really irritated with the preceding paragraph.

Just caught a Fox Noise commentary by Brit Hume. It's hard to avoid the impression he's hoping a major disaster is in the offing that could be blamed on Barack. Hey Brit, can't you see that it's your boy Mr. Mitt who's responsible for the bad weather?

A PAUL RYAN MARATHON

Did the October 28 Marine Corps Marathon in just over three hours. Well actually, it was well over six hours, but Mr. Paul has shown that preciseness with numbers, whether they be marathon times or calculations regarding federal budgets and deficits, isn't that important.

In fact, next year I'm thinking of taking the approach described in an article in the August 6, 2012, issue of The New Yorker. The article detailed the marathon activities of a Michigan dentist who claimed good times in a lot of marathons but apparently had employed a sophisticated strategy of avoiding many of the miles between the start and the finish. The MCM course is a series of zigzags that would provide numerous shortcut opportunities. But I won't be a glutton. Claiming a time of just over four hours seems sufficient.

Incidentally, the Michigan dentist might be ideal for a position in a Romney-Ryan Administration. Fudging the numbers is the only way their promises have a chance of working out.

MR. MITT AND BIPARTISANSHIP

Increasingly, the President is getting zinged for failing on the bipartisanship front. He didn't do enough to bring Republicans to the table, to work out mutually acceptable solutions to the nation's problems. Peggy Noonan, she of the Ronnie Reagan fan club, in October 27's Wall Street Journal makes much of Barack's supposed failure to reach out. In his new book, The Price of Politics, Bob Woodard dwells on Barack's perceived bipartisan inadequacies. Mr. Mitt has been amping-up his own alleged bipartisan abilities. He knows how to sit down with the opposition party and work stuff out.

Well, for the most part the President indeed has been unable to bridge the partisan gaps. But whose fault was it? Maybe a little blame goes to the President and his fellow Democrats. But the party that took the hard line, the no compromise positions over the last four years, was the Republican party. Grover Norquist said no new taxes, nothing that even could be perceived as a tax increase, and the Republican Party jumped.

Nothing is more instructive regarding the current Republican attitude toward compromise than the responses to the question asked during one of the Republican primary debates: would you walk away from a hypothetical deal calling for 10 to 1 spending cuts to tax increases. The eight debaters, including Mr. Mitt, all raised their hands that they would walk away. And this is the attitude Barack is found guilty of not accommodating?!

It would certainly be ironic, or maybe just a perversion of justice, if Mr. Mitt were to win the election on his recently discovered bipartisanship strategy when in fact the major lack of bipartisanship over the last four years has been due to his own party.

THE ELECTORAL COLLEGE AND FOX NOISE

Here's a what if. What if Mr. Mitt gets a slim majority of the popular vote but loses in the Electoral College? Given the current national and state poll numbers, this possibility is not that farfetched. As most know, Barack would then be the President because the Constitution, that hallowed document, works that way. Something the Founding Fathers cooked up to put a little distance between the rabble and the elite.

In the election of 2000, Al Gore actually won the popular vote, receiving over 500,000−a half million−more votes than W. But the Constitution's Electoral College−with an assist from a divided Supreme Court−made W the 43rd President of the United States. Except for a little grumbling from a few on the left side of the political spectrum, the result was accepted. It was what the Constitution mandated. It was the way the system worked.

But if the opposite result were to occur in 2012−the Democratic guy on the left winning in the Electoral College but receiving fewer popular votes than the Republican guy on the right−would the right be so accepting? In particular, would that nest of loony invective known as Fox Noise be as uncomplaining as it was twelve years ago?

One can envision four years of constant complaining about the minority President−hey, we're only referring to his coming in second in the popular vote. Honest. Actually, the folks at Fox Noise would secretly probably be pretty happy. After all, it's much more fun to whine, complain, and be the victim than to have the responsibilities that come with winning.

MR. MITT AND NUMBERS

It's becoming clear that Mr. Mitt thinks in numbers. Consequently, matters involving subtlety, ambiguity, murkiness, nuance−in other words, most things involving flesh and blood people−aren't his forte.

The number of Navy ships is one example. Mr. Mitt has made a big deal about the number of Navy ships in 1916 or '17 versus the smaller number today. But as Barack pointed out in the third Presidential debate, and as many others have similarly noted, comparing ships then and now is comparing apples and oranges. Capabilities are vastly, exponentially different. For one thing, how many of those WWI era ships had an electronic computer on board?

But to Mr. Mitt, the number of ships is apparently a compelling statistics.

Mr. Mitt's infatuation with pegging China as a currency manipulator is another example. Currency exchange rates are just numbers. Many free marketers believe exchange rates should not be set by government but should fluctuate according to the laws of supply and demand. But in actuality, many governments attempt to control exchange rates in one fashion or another. For large industrial countries, the control is often through the Central Bank activities of buying and selling currencies and government and other securities.

China has longed tried to keep the value of its currency low−in comparison to other currencies−to promote exports. Free marketers object, contending that China's government-set rate results in the artificial promotion of exports and the artificial curtailment of imports. Mr. Mitt has several beefs with Chinese economic policies. He accuses China of theft of intellectual property−patents and copyrighted material. He's likely right to at least some degree. He accuses China of unfair trade practices. Again, he's probably right to some degree.

But Mr. Mitt is not alone in his criticisms of China: most of Barack's policies regarding the country are not that much different than those Mr. Mitt would attempt to implement. But Mr. Mitt would go farther and officially label China a currency manipulator, never mind that the moment for that might have been 2007−five years ago−and today, in part because of changed economic conditions both there and here, the action would be somewhat irrelevant except for the overall negative impact on U.S.-China relations. (See Matthew O'Brien, "Romney's China-Bashing Is 100% Correct ... but 5 Years Late," The Atlantic, October 24, 2012, for a fuller discussion).

The point is that labeling China a currency manipulator would be easy, would involve at a basic level not much more than numbers, and would thus fit Mr. Mitt's apparent view of the world: I can solve any problem I can put a number on.

HEART ATTACK

Almost had a heart attack this morning. There, on the editorial page of The Wall Street Journal, was an editorial critical of Mr. Mitt. How dare they! It was at the bottom of the page, but still. . . .

The Journal's editorial page is normally in lockstep with Fox Noise, only the Journal uses bigger words. In this particular editorial, the Journal chastised Mr. Mitt for saying that on day 1 of his Presidency, he would label China a currency manipulator. The Journal characterized the likely result as "a showdown that would shake the global trading system" and argued that such a "heavy-handed government solution" was unwise.

Several things are of interest here. First, Mr. Mitt's view of China as an international economic villain was about the only foreign policy position of his to survive from the previous weeks and months. If China had not come up, Mr. Mitt would have been in almost total agreement with everything Barack said on foreign policy during the evening. In fact, Barack spent much of the evening pointing out the discrepancies between Mr. Mitt's current and previous views.

Second, the matter of Chinese currency manipulation is a matter of numbers, of statistics. Most of the other foreign policy issues touched on during the debate involve, at a fundamental level, much more amorphous stuff: ancient grievances, national pride, jihad, historic trends. Mr. Mitt does not seem comfortable with amorphous stuff. He is a man of numbers. His business career was confined to the world of finance, to numbers. Reduce a problem to numbers, and he has the solutions. But the real world is much more complex than just numbers.

Finally, the Journal's disagreement with Mr. Mitt on a matter is just a foretaste of the donnybrook that would likely ensue in the Republican ranks if Mr. Mitt were to be elected. To take back the White House, the Republican party has papered over its many internal differences. On day 1 or shortly thereafter of a Mr. Mitt's Presidency, that paper would likely be shredded. Social conservatives, tea partiers, Wall Street big money, main street little money, big business, small business would each be pushing agendas. Could a party that has made no-compromise an anthem over the last four years come up with enough internal compromises to govern?

TWO WEEKS TO GO

Two weeks to go. The debates are done, so the potential for a disastrous gaffe by one or the other candidate is much reduced. Now it's just repetitions of the same mind-numbing stump speeches. Saturday Night Live is strangely a rerun for October 27. SNL is at its best for Presidential elections, and it's going with a rerun ten days before the election?! At least its November 3 show is live, although the host, Louis C.K., is somewhat of an acquired taste.

Jon Stewart and Steven Colbert usually take off a week every month. Hopefully, they won't desert us for these final two weeks of the most important election ever, or at least the most important since the last election. If the comedy people leave us in this time of need, we'll be left mostly with Fox Noise from the loony right, MSNBC from the not-quite-as-loony-but-not-by-much left, and CNN from the visual effects swamp it has become mired in. Letterman, Leno, Fallon, O'Brien, Kimmel, and a couple of others will still be providing some comedic relief, but Stewart, Colbert, and SNL are the top of the line.

One of the notable lines from Monday night's debate was Barack's retort to Mr. Mitt's complaint that America's Navy is the smallest it's been since 1917. The President stated, "we also have fewer horses and bayonets," the larger point being that warfare, weapons' capabilities, and military technology have changed exponentially since the time of the First World War. Among other items that the military has fewer of today, the President could have listed camp followers of the sexual services genre. Pity.

THE MR. MITT, BARACK, AND BOB SHOW

Debate in a nutshell: Mr. Mitt's obvious goal was to avoid stepping on his honker. This he pretty much did, to Barack's consternation and Fox Noise's obvious relief. To attain his goal, Mr. Mitt had to pretend he hadn't held different positions in the past, but he has become pretty adept at this so it wasn't much of a challenge. He also had to agree with Barack on many matters. So the conclusion is that foreign policy under a Mr. Mitt Administration wouldn't be all that different than it has been under the Barack Administration.

Mr. Mitt does think that through a combination of toughness and reasonable persuasion he can bring the different anti-government factions in a place like Syria together. Some might argue that such naiveté is reminiscent of the Bush-Cheney years and therefore a disqualifier for the position of Commander in Chief. Supporters of Mr. Mitt are unlikely, however, to be so critical.

Perhaps the most perplexing comment by Mr. Mitt came in his closing statement. He briefly praised the Greatest Generation−that Tom Brokaw-created fantasy about the supposedly pretty near perfect generation that survived the Great Depression and won World War II, never mind about Jim Crow, post-war McCarthyism, and stuff like that. And then he said something to the effect that this election would mark a passing of the torch to a new generation. It was like the last fifty years were of little import.

Hey Mitt, did'ja hear about the '60s, baby boomers, Gen X, Gen Y, computers, a guy named Bill Clinton who became President in 1992? The Greatest Generation faded from the scene some time ago. A lot of history has occurred since the 1940s, and one gets the impression you don't quite have a handle on it.

One last thing: Bob Schieffer, you done pretty good. But then Mr. Mitt wasn't the argumentative pushy guy of debates one and two.

CRUCIAL QUESTIONS

Two crucial questions are before the nation for Monday night's final Presidential debate of the 2012 elections. The answers to these questions will determine for years to come who we are as a people. The answers may well impact the future of humankind on this planet. It is impossible to overstate the importance of these questions.

First, will Bob Schieffer restore respectability, even a bit of machismo, to the male side of the journalistic profession? Jim Lehr did not do a horrible job, but he was definitely not in charge at the debate he moderated. He pretty much let two domineering politicians, or at least the one domineering politician who was fully in attendance, run all over him. In contrast, there was no doubt who was in charge in the two succeeding debates. Martha Raddatz in the Vice Presidential debate and Candy Crowley in the second Presidential debate had, in their respective arenas, the largest cojones on the stage. Bob, it's time to man-up.

Second, will the debates trump Monday Night Football? For over forty years, Monday Night Football has been an institution integral to the American way of life. It is enshrined in the Constitution as "the Pursuit of Happiness." Or maybe that's the Declaration of Independence. In any case, it is surely covered by the references in the Constitution's Preamble to forming "a more perfect union," promoting "the general Welfare," and securing "the Blessings of Liberty to ourselves and our Posterity." If a mere Presidential election attracts more attention than Monday Night Football, the days of American hegemony are numbered.

The answers to these questions will be determined Monday night. The stakes could not be higher.

LIBYA II

The deaths of four Americans in Libya constitute just the type of tragedy that Mr. Mitt's New York campaign office−Fox Noise−and the partisan Republicans in Congress thrive upon. Many of the facts of the tragedy are murky. Multiple layers and agencies of the nation's national security establishment are involved, meaning that sorting out the details and timelines of the events and the Government's responses takes time. The public responses from the White House and various parts of the security establishment have thus far been couched in cautionary language and uncertainty.

Not so the analyses of many of the President's critics. In an unclear situation such as Libya, innuendoes and outright fabrications are tempting for opponents of the President to make, and they have succumbed to the temptation with alacrity. Fox Noise has no problem finding its version of certainty regarding the events. For example, Fox commentator Charles Krauthammer in yesterday's Washington Post emphatically stated: "But there was no gathering. There were no people. There was no fray. It was totally quiet outside the facility until terrorists stormed the compound and killed our ambassador and three others."

Hey Charles, those assertions have not been definitely established as facts, at least according to other reports that are surfacing. So how do you know? Incidentally Charles, whatever happened to that moderate, reasonable columnist that you were twenty or so years ago? You have become quite grouchy and extremely partisan in your advancing years.

Anyway, the President will undoubtedly hear more about this on Monday night. His explanations over the last week have not been the best. It has become an anthem of American politics that an office holder or seeker should avoid admitting uncertainty or error. But when uncertainty is obvious, refusing to acknowledge it can make the politician look unconnected.

Last Thursday on Jon Stewart's Daily Show, Mr. Stewart threw the President a softball on the Libyan tragedy that could have been answered in part by acknowledging the uncertainty still surrounding the incident. Instead, the President brushed aside the obvious and emphatically stated a list of things he will be doing in the future, including bringing the killers to justice. A more nuanced discussion Monday night might be the better approach.

MR. MITT, PENSIONS, AND WEALTH

Mr. Mitt just can't stop reminding us that he is one rich dude. In last Tuesday's debate, he was on one occasion like the proverbial dog with a bone, or a small child persistently demanding satisfaction: "Mr. President, have you looked at your pension? Have you looked at your pension? Mr. President, have you looked at your pension?"

The President noted that his pension was nowhere near the size of Mr. Mitt's. But perhaps he should have thanked Mr. Mitt for once more reminding Americans that he−Mr. Mitt−is not like most of us. He is a multi-millionaire who doesn't have much to worry about regarding his finances, for now or for his later years.

When coupled with his $10,000 bet remark in a Republican primary debate, his causal statement that many of his friends own NASCAR teams, his installation of elevators for cars in his California beach house, his other vacation homes, and his refusal to release his tax returns for any but the most recent years, Mr. Mitt's browbeating of the President over the latter's pension serves to keep front and center Mr. Mitt's membership in the nation's one percent of very monetarily fortunate people.

Rich individuals have succeeded in politics. Most have avoided calling undue attention to their wealth, and in general their fellow citizens have taken a let-sleeping-dogs-lie attitude. But Mr. Mitt has a tin-ear about his wealth and keeps inadvertently reminding us about it. To some, he comes across as a guy who, despite what he says, just doesn't comprehend lives that are dominated by day-to-day finances.

Mr. Mitt appears to believe that a few simple macro-economic steps, starting with reducing taxes, are all that are needed for everyone to have the opportunity to climb the ladder of success to financial security if not financial wealth. He most likely would not begrudge all his fellow citizens having beach houses with car elevators. But even if taxes were eliminated entirely, such an earthly paradise just ain't gonna happen. Someone who understands the real world and not just the world of venture capital, equity funds, and unbridled capitalism just might make a better President.

LIBYA

Mr. Mitt, his Republicans, and Fox Noise are fixated on Libya. They apparently think that therein lies the road to the White House. Maybe, but if so we really are catering to the lowest common denominator.

The death of four American State Department employees, one the Ambassador to Libya, is both tragic and a proper subject for thorough, critical investigation. How did this happen? What security measures were absent? What early warning signs were overlooked or misinterpreted? How can we improve the security decision-making process and the decisions themselves?

State Department employees are not soldiers, and certainly not front-line soldiers. But they are in harm's way for the United States of America. Just from where they are posted, their jobs can be dangerous. Embassy and consular security are matters being constantly scrutinized and revaluated.

But the never-ending security scrutiny and revaluation are not conducted in a vacuum. Security resources and budgets are limited. Not every imagined or perceived threat can be addressed. If some believe that security requests for Libya were ignored, they should put this in the perspective of how frequently security issues come up for all Embassy and consular posts. The guess here is that such issues are commonplace, and that very often budget considerations override security concerns.

Barack and his Administration have indeed botched explanations for the Libya tragedy. But the botching seems due to too many authoritative-sounding explanations before all the fact were known. In a rush to provide possible explanations, the various Administrative spokespersons ignored a crucial point: certainty about what happened and why just weren't there yet.

But this failure on the part of the Administration is no excuse for the criticisms and innuendos that are being cast by Mr. Mitt and his campaign staff at Fox Noise. They are insinuating lies, fabrications, and posturing for political purposes. They are besmirching the honor of fellow citizens having responsibilities for carrying out the foreign policy of the United States in difficult, ever-changing circumstances. They are, in short, disgraceful opportunists.

IF WE'RE ALL BROKE, WHO'S FUNDING THE POLITICS?

Granted the economy is not in the best of shape. An anemic recovery might be the most accurate way to describe the last few years. But Mr. Mitt and Republicans contend we are in dire straits. If that is the case, who is providing all this money that is going into political ads and campaigns?

Put another way, if things are as bad as Mr. Mitt makes them out to be, wouldn't political ads and political campaigns be nonexistent because no one would have the discretionary money to contribute to their creation and operation? Okay, so that's a very simplistic way to look at the complexity of a modern Information Age economy. But what seems to be a fact is that people with a lot of money are putting some of it toward convincing those with much less money to vote in certain ways.

Are the people providing the discretionary money motivated by altruism or self-interest? Most are probably along a spectrum stretching from pure altruism at one extreme to pure self-interest at the other. The tempting generalization is that rich Democrats and liberals are mostly along the altruism portion of the spectrum, and rich Republicans and conservatives are mostly along the self-interest portion of the spectrum.

Let's abruptly segue into a related−in a big picture sort of way−topic: job creation. The underlying economic problem is that at the moment, there aren't enough jobs for everyone who wants (and needs) to work. In other words, the demand for jobs is greater than the supply. Why is that so? The arguments in the political arena are centered on such matters as tax policies, government regulations, foreign competition (read China), and the like.

But a Luddite of the early 19th Century would say, "Hey, we saw this coming." Over the last several centuries, technology has increased human productivity, which means fewer humans are required to produce the goods and services required for human existence. So what are other humans doing? Creating Facebook and the umpteenth version of the iPhone, staffing a coffee shop on every corner, providing leisure activities, participating in political campaigns, and so on.

In other words, the current attention on job creation is narrowly focused on peripheral matters. Underlying seismic shifts in the nature of economic activity in the post-Industrial Age are probably too frightening for discussion outside of academia and specialized research organizations (which themselves represent types of discretionary spending). It is much easier on the intellect to conduct a political campaign on the basis of yesterday's assumption than to venture into the unknown.

THE CANDY, BARACK, AND MR. MITT SHOW

Fox Noise is certainly unlikely to admit it, but Mr. Mitt got his clock cleaned tonight. Oh, he scored a few points. But an energized, aggressive Barack put himself back in the game. Mr. Mitt came out on the loosing end of auto industry restructuring, taxes, social policies, immigration, China policy, jobs going overseas, and Candy Crowley.

Mr. Mitt's main thing seemed to be his five point plan of generalities. He cited the plan several times, usually as a solution to a particular problem he was trying to explain his solution for. He seemed particularly fixated on China, accusing it of being a currency manipulator, intellectual property pirate, and general trouble maker. China is definitely not an international economic choirboy, but it's not a criminal enterprise either. Subtle confrontation would seem to be a better long-term approach to dealing with the country than campaign rants.

The Middle East is obviously perplexing to Mr. Mitt. He appears to have the attitude that prevailed among the neocons in the Bush Administration: if America blusters and screams enough, it will get its way. Not sure the nation needs to tread that path again.

Mr. Mitt kept harping on his business background. He alleged that he knows how to create jobs. In fact, he alleged it a number of times. But the specifics, other than cutting taxes, were absent. And the tax issues were clouded by fuzzy math, which Barack pointed out several times.

Perhaps Barack's best counter to Mr. Mitt's incessant call for tax cuts was to remind the viewers that the Bush tax cuts of the early 2000s were a major cause of the current economic problems.

Bottom line: if you ever find yourself in a ticklish situation, say in a redneck biker bar in some remote area of, say, Idaho, and you need someone to watch your back, you could do a lot worse than Candy Crowley and Martha Raddatz. Indeed, if it were a choice between those two and Mr. Mitt with his little three-hour marathon partner, well, it wouldn't even be a choice.

WAITING FOR THE GAFFE

The nation anxiously awaits Tuesday night’s debate. Will Barack Obama bounce back from his desultory performance of two weeks ago, a performance that increases in desultoriness with each retelling, particularly retellings by Republican-leaning pundits?

Will Barack managed to knock that weird smirk off Mr. Mitt’s face, a task that none of Mr. Mitt’s challengers in the Republican primaries managed to do, but then that crowd was not exactly the cream of the crop?

Will Mr. Mitt be able to continue his thus far successful etch-a-sketch strategy of morphing from a centrist-leaning governor of a left-leaning state, to a tea party conservative, to a moderate Northeastern Republican of the Nelson Rockefeller variety?

Will Candy Crowley be a Jim Lehr, a Martha Raddatz, or some new variant of I’m-in-charge moderator? The thought here is that Ms. Crowley just might be a bigger part of the show than anticipated, especially if Barack and Mr. Mitt get wild and wooly.

Barack will certainly be a different performer than in the first debate. But in the past he has not been an excitable guy, and excitable is apparently what political pundits want. And what political pundits want is what the supposedly independent thinking people end up wanting because most of those supposedly independent thinking people don’t know what they are thinking until the pundits tell them.

One thing both the pundits and the people would sorely love to witness is a major gaffe on the part of Barack, Mr. Mitt, or both. Gaffes do not necessarily result in permanent damage to a candidate’s chances, but they certainly provide entertainment of the first order. Watching a candidate try over a period of days and weeks to extract himself or herself from the sticky clutches of a gaffe is delicious fun. The gaffe becomes almost a living, breathing entity, a lion in the Roman Coliseum toying with a hapless slave. Maybe the slave will end up devoured. Or maybe the lion will tire of the game, leaving the slave shaken and mauled but still functioning in a zombie-like state. In either case, the blood-lust of the Coliseum crowd has been temporarily satiated.

FOX CALLS JOE RUDE

The folks at fair and balanced Fox Noise are all over VP Joe Biden for his performance during the debate with Wonder Boy Paul, he of the sub-three hour marathon. (Just a reminder that his actual time was a tad over four hours and that his predecessor as a Republican VP candidate, a certain Ms. Sarah Palin, has run a faster marathon.)

Anyway, the two words being most applied by Roger Ailes’ flunkies to Joe Biden the debator are “rude” and “bully.” Fox Noise calling someone else rude and a bully!? Talk about the proverbial pot calling the proverbial kettle black. Fox Noise’s whole persona is built upon rudeness and bullying. The fair and balanced network has made millions refining the concepts.

But appearing hypocritical has never been a barrier to Fox in its pursuit of liberals, Democrats, academia, non-Christians, and others who don’t fit the network’s narrow idea of true Americans.

Speaking of words that Fox has trouble recognizing when applied to itself, what about victim? Liberals allegedly complaining to be victims are a common target of Fox’s rants. But Fox can claim victimhood quicker than a three-hour marathon when criticism is directed its way or toward one of its allies, such as Mr. Paul from Wisconsin.

BIPARTISANSHIP

Mr. Mitt says Barack Obama failed to bring Democrats and Republicans together. Well, Duh. It’s pretty much impossible to produce togetherness when one side has a my way or the highway attitude. Hey, Republicans, I’m talking about you.

The Democratic Party is far from perfect, but in general it is considerably more compromising than the current Republican Party. A substantial number of Democrats accept the fact that getting your way one hundred percent of the time is not how government is sustained in a democratic republic. Many present-day Republicans do not seem to accept this fact. Moreover, many Republicans come across as putting party before country.

Mr. Mitt says that his accomplishments as Governor of Massachusetts, where the legislature was more than seventy percent Democratic, shows he can bring Democrats and Republicans together. Well, yes, one might counter, because those Massachusetts Democrats had a significant proportion of reasonable, compromising individuals. President Obama, on the other hand, has found no such group of reasonable, compromising Republicans in the United States Congress.

FACTS AND POLITICS

Facts and politics, particular election politics, have at best a tenuous relationship. The major problem is that to a politician running for office, just about everything he or she says is a fact, but his or her opponent begs to differ. In other words, agreement between opposing politicians on the facts in an election year is likely to be nonexistent.

Agreement about the facts of what happened in the past and what is happening currently is difficult enough to reach. But extrapolating into the future—predicting, in other words—and labeling the result as fact is really pretty absurd. And politicians exacerbate the problem by leaving out the assumptions, economic and political relationships, and caveats that went into their predictions.

So why this sorry state of “facts” in the political world? Why are politicians so prone to label as “fact” every debatable point? Because politics, and especially elections, are geared toward the populace’s lowest common denominator, for whom most everything is viewed as either a fact or a falsehood. Those not in the lowest common denominator acquiesce in this approach, perhaps because acquiescence is the path of least resistance. Indeed, in a way politics can be quite soothing because intellectual rigor is not necessary.

So enjoy the next few weeks. Throw your “facts” around with abandon. Come November 7, election season “facts” will give way—not completely but significantly—to the end of the year’s fiscal cliff “facts.” That ought to be fun. And then will come the budget and budget deficit “facts.” That ought to really be fun.

THE JOE, PAUL, AND MARTHA SHOW

In foreign affairs, Paul wants us to not be weak. Joe says we are not weak.

Paul knows what the Iranian Ayatollahs thinks. A young Irish guy from Wisconsin with about zilch foreign affairs experience knows what Iranian Ayatollahs think. Think about that.

Paul has a smirk just like Mr. Mitt’s. Do they teach that at Republican retreats?

Paul says Mr. Mitt cares about 100 percent of the American people. He has great personal generosity. Hey Mr. Mitt, could I get some of that personal generosity?

Paul is taking a lot of swigs from whatever is in his cup.

Paul is talking a blue streak, throwing out a lot of “facts.” Joe is interrupting because he doesn’t think the “facts” are actually “facts.” Martha is getting irritated.

Paul won’t give specifics about his 20 percent tax cut proposals. It’s all a framework problem. Paul and Mr. Mitt have a framework. Trust them.

Both Joe and Paul have been to Afghanistan. They both have been out in the field. Our forces are doing fabulous.

Joe says we are leaving Afghanistan in 2014. Paul wants his friend to come home. But he is not as emphatic about the timeline.

Paul says we haven’t done right in Syria. Paul says a Mr. Mitt-Ryan Administration would have done better. How? Well, we would have done better.

Abortion? Everybody same-same.

Joe finishes by emphasizing his devotion to the middle class. Paul finishes by emphasizing his and Mr. Mitt’s hostility to President Obama.

Main impression? Paul and Mr. Mitt’s similar smirks.

ROMNEY AND CHENEY SIMILARITIES

Mr. Mitt and former Vice President Dick Cheney have several thinks in common.

) Mr. Mitt and the Dickster each avoided the draft during the Vietnam War through five (5) deferments. In their defense, it wasn’t exactly a fun war.

) Mr. Mitt and the Dickster have unusual but similar ways of treating companions. The Dickster once shotgunned a hunting companion in the face, neck, and upper torso. The companion survived. Mr. Mitt once strapped a container with his dog Seamus to the top of the family vehicle for a twelve-hour ride. Seamus also survived.

) Mr. Mitt and the Dickster are both of the neocon persuasion, meaning they favor an in-your-face aggressive foreign policy that results mainly in irritating the rest of the world. But maybe that’s the point.

OBAMA'S OPENING STATEMENT FOR DEBATE TWO

The President’s opening statement at the next debate with Mr. Mitt maybe should be something like the following.

Good evening ladies and gentlemen, Candy Crowley, and Mr. Mitt. Before we get too far into tonight’s effort, I was hoping we could clarify a point. Which Mr. Mitt am I debating tonight? Is it the former centrist governor of Massachusetts who provided the model for Obamacare? Is it the uncompromising far right ideologue of the Republican primaries for whom Obamacare was an obscenity? Or is it the etch-a-sketch semi-centrist who suddenly appeared a couple of weeks ago and whose objections to Obamacare appear limited mostly to the name?

And it’s not just Obamacare. Mr. Mitt in his various guises has been all over the map on taxes, budget deficits, financial regulation, other types of regulation, and foreign policy.

All this shaking and baking makes a substantive give and take on the issues rather difficult. Our exchanges are in danger of being reduced to:

“That’s not my position.”

“Well, it was once was your position.”

“No it wasn’t.”

“It certainly was.”

“Liar, liar, pants on fire.”

“So’s your mother.”

Somehow, I feel the American people are expecting a little more from us. So I’m pleading with you Mr. Mitt, tell me, the folks here in the audience, and the millions of viewers round the nation, which of you am I facing tonight?

THE ROMNEY DOCTRINE: GEORGE BUSH WITHOUT THE INTELLECTUAL DEPTH

Mr. Mitt gave a foreign policy address today, at Virginia Military Institute in Lexington, Virginia. If presented as a term paper by one of the cadets in a political science, international relations, or similar course, the grade received would have been a gentleman’s C at best.

As has become his practice over the last week, Mr. Mitt reversed, contradicted, or significantly altered past positions on a variety of items. American involvement in Afghanistan has gone from it’s the Afghans’ problem a year ago to “retreat that abandons the Afghan people” would very likely lead to attacks within the United States. At one time in his meanderings over the Iraq war, Mr. Mitt sounded almost dovish, saying in effect that we wouldn’t have gone to war without the believe that Iraq had nuclear weapons. Now he sees the Iraq muddle as part of a “struggle between liberty and tyranny, justice and oppression, hope and despair.”

And as for Palestine, Mr. Mitt has gone from characterizing the Palestinians as the main obstacle to peace with Israel to a just give me the reins and we’ll have a democratic, prosperous Palestine living in peace with its neighbor.

As has been the case with his reversals on economic issues, Mr. Mitt offered little in the way of specifics for his new foreign policies. He just wants a stronger, more assertive America in the international arena. Such an America would apparently have no problem imposing its will. So matching the ill-defined goal with the lack of means to get there, we have what might be called George Bush Light, which is about as light as you can get.

ETCH-A-SKETCH

Is this election really about distinctly different paths for America? That's what the two campaigns tell us, and for a time back during the Republican primaries it seemed possibly accurate. The Republicans were falling all over themselves telling us how they would get the federal government back in a box, a very small box, and the Democrats were saying no, you shouldn't do that.

But Mr. Mitt has done his etch-a-sketch thing, and now the differences are nowhere near as stark. Mr. Mitt is currently saying that much regulation is good, the financial reform of Dodd-Frank has many fine qualities, his Massachusetts' health care plan was okey-dokey, and he might not be cutting taxes as much as he originally said.

So Mr. Mitt, if you do manage to get elected, which one of your various personas will actually enter the Oval Office? Mr. Mitt the anti-government Tea Partier reincarnate? Or Mr. Mitt, the former centrist Governor of a left-leaning state? Just asking.

BOB WOODWARD: SEAN HANNITY'S HAND PUPPET?

Last night on Sean Hannity's Rant Against Reason TV show was one of the foremost chronicler's of the American political scene over the last four decades. Yes, Mr. Robert Woodward of Watergate and All the President's Men fame. And what was he doing? Trading conspiracy theories with Mr. Hannity, one of Far Right's most prolific conspiratorilists.

The particular conspiracy being speculated upon seemed to have something to do with the President being off his game at Wednesday night's debate because of some personal problem of great magnitude. But the real story was that the renowned Mr. Woodward was down in the gutter with one of the Right's loons.

Bob, what in holy hell has happened to you? Or were you always this way and some of us just didn't know?

WITH FRIENDS LIKE THESE. . . .

Yes, the President had a subpar debate performance. Some of it was apparently deliberate: reports were that certain subjects--Mr. Mitt's 47 percent remarks, his tax returns--were purposely put off-limits. And some of it was apparently poor reactions on the part of a President too long in the bubble of sycophantic aides. For example, Mr. Mitt put forth many false numbers and "facts" that were left unchallenged.

But did a subpar debate performance warrant being thrown under the bus by Chris Matthews, Ed Schultz, and crowd? Let's be blunt. We all know MSNBC is in the tank for Democrats, just as Fox News is in the tank for Republicans. Nothing wrong with that, or at least it's not something that we can do anything about. But when your guy or gal has a bad night, such as Obama's first debate night, do you pile on to the extent Obama was piled on by his alleged media friends? The vitriol they expressed toward their man was, in the opinion of this observer, way over the line.

Moreover, their criticisms weren't all necessarily valid. Yes, Obama probably should have gone after Mr. Mitt's falsehoods and distortions much more vigorously. But how about stuff like Mr. Mitt's infamous 47 percent remarks? The President chose not to bring that up and consequently got hammered by Matthews and company.

But Mr. Mitt showed the following night in an interview with his buddy Mr. Hannity on Fox that he had a ready answer for the 47 percent faux pas. Mr. Mitt admitted error. He did not deny uttering the damning words. But he said he was "just completely wrong."

So where would that have left Mr. Obama? With having little comeback other than an adult version of the school yard's, "Yeah, well so's your mother." By not bringing up the matter, the President leaves the 47 percent albatross around Mr. Mitt's neck. It is still valid fodder for campaign commercials. It is still ammunition for the next two debates.

The President needs to do a better job in the next debates. But he should do it on the substantive issues. He should aggressively hammer Mr. Mitt on the latter's many incorrect, misleading, and simply imaginary numbers and "facts." But 47 percent, tax returns, Bain Capital, and the like? They are best left to the surrogates and the commercials.

DEBATE DO'S AND DON'TS

Success in a high profile political debate in the second decade of the 21st Century has some special do's and don'ts. Read and learn.

) Don't appear professorial or as if you are actually thinking about what you're saying; aggressive, rapid fire recitation of facts, alleged facts, and just plain gibberish is the way to go.

) Don't think being gentlemanly will gain you any points.

) Do view the encounter as a blood-sport contest straight out of "Hunger Games."

) Don't underestimate the gullibility of the electorate's lowest common denominator.

) Do frequently and enthusiastically repeat non-facts and gibberish and cite non-existent studies because the more often you say something, the closer it gets to being true.

) Don't answer the question asked as this will identify you as not in control; establish your authority and independence by effortlessly segueing to your talking points.

) Do plaster a maniacal, somewhat frightening, grin-grimace on your face when your opponent is talking.

) Don't not look at your opponent when he/she is talking as avoidance of aggressive staring is considered by the punditry a sign of weakness.

) Do have a hoard of combative in-your-face flunkies who immediately after the event will magnify your performance beyond any reasonable recognition.

) Don't be a Democrat as your supposed supporters in the punditry will, at the first sign of reasonableness and courtesy on your part, drop you like a hot potato.

) Do be a Republican so you can be less squeamish about distorting the facts and your own past positions and performance.

) Don't be the moderator as you will likely catch as least as much flak as the loosing debater.

OBAMA LIGHT

The general consensus about last night's Presidential debate--from talking heads on both the left and the right--seems to be that Barack Obama got his clocked cleaned. Talking heads are only happy, however, when they and the people they report on are screaming incoherently at each other and everyone is going for the jugular. Being calm and collected, Mr. Obama was a disappointment.

But the real story of the debate is that Mr. Mitt is no longer the far right whack-job of the primaries. Indeed, he has moved to the center, maybe even to the left of center, becoming Obama Light. He now accepts many of the policies of ObamaCare, opposing it in name only. In financial regulation, he has just a few quibbles with Dodd-Frank. As for eliminating the federal budget deficit, yeah, both revenues (that is, taxes) and expenses are subject to adjustment. Grover Norquist must be apoplectic.

And oh yes, Mr. Mitt really doesn't dislike those on the lower half of the economic spectrum.

So where does that leave things? It actually leaves Mr. Mitt in pretty good shape. Tea Partiers and other extreme conservatives have nowhere else to go. And middle-of-the-roaders concerned with Mr. Obama's "strangeness" now have a seemingly attractive option.

So hop onboard the Mr. Mitt bandwagon. With middle-of-the-road policies, a very likely inevitable improvement of the cyclical economy, and a little luck in the international sphere, Mr. Mitt could go down as one of the nation's foremost Presidents. After all, life is fair only for the one percent.

MAINSTREAM MEDIA

What is the mainstream media? Media that informs and in general shares and reflects the perspectives of the mainstream.

What if you don't like the mainstream media? That means that you probably don't like mainstream America.

What if you don't like mainstream America? That likely means that you're an ideologue of either the right or the left.

What is an ideologue? Someone who believes fervently and emphatically in certain principles or statements about politics, economics, government, or any combination thereof.

What is an ideologue of the right? Someone who is likely to be excessively pro-market economically and anti-government politically, and who probably perceives themselves as victimized by those who hold different views.

What is an ideologue of the left? Someone who is likely to be excessively anti-market economically and probably, but not necessarily, pro-government politically, and who probably perceives themselves as victimized by those who hold different views.

Is there any way the mainstream can mollify ideologues of the right or left? No, they're hopeless.

PAUL RYAN, CLOSET WUSS?

Republican VP candidate Paul Ryan has a reputation as a fitness buff. He allegedly is in the Congressional gym at the crack of dawn, performing a supposedly grueling routine of jumping about. Those who say they have seen his abs have expressed a degree of admiration that makes some listeners a bit uncomfortable.

Well, maybe Paul is a rugged he-man type. But he certainly is not the fastest marathoner among current and past Republican VP candidates. Yes, a certain Sarah Palin holds that distinction, edging him out with a 3:59 to Paul's over 4. That's hours in case you're not familiar with running times.

Oh, and in case you missed it, Paul originally claimed a sub-three hour marathon time. An hour-plus error may not sound like much to nonrunners, but don't try to convince a committed runner that Paul merely misspoke.

So anyway, Paul's reputation as a fitness freak has suffered just a tad. First, he claims an accomplishment he did not achieve. And second, he came in, well, second to Mrs. Palin. Could it be that Paul is in truth a Closet Wuss? Just asking.

PATENT OFFICE FLIPS SUPREME COURT THE BIRD

David Kappos, the Director of the U.S. Patent and Trademark Office, has in effect flipped the U.S. Supreme Court the bird. In a recent web-posting, Director Kappos all but explicitly said that he does not intend to have his agency fully abide by two recent U.S. Supreme Court decisions on patent law. In the decisions, the Court attempted to clarify the limits on what processes are patentable under U.S. patent law, specifically under Section 101 of Title 35 of the U.S. Code. But Director Kappos seems unimpressed with the Court’s efforts.

Processes are one of the four categories of inventions or discoveries that Section 101 lists as eligible for patents. The other three categories are machines, manufactures, and compositions of matter. The process category has become a venue for thrust and parry over the patentability of some Information Age developments such as increases in business method patents, software patents, and patents on various intangibles.

The Court’s recent decisions were Bilski v. Kappos in 2010 and Mayo Collaborative Services v. Prometheus Laboratories in March of this year. In the Bilski decision, the Court held that a process for hedging against the risk of price changes in the energy market was an abstract idea and consequently not a patentable process under Section 101. All nine Justices agreed with this result but were not in agreement with the rationale. Consequently, three different opinions were written, and one member of the Court, Justice Scalia, performed a judicial minuet in picking portions of two of the opinions to agree with.

In the Mayo decision, a unanimous Court held in a single decision that simply applying a law of nature did not amount to a patentable process. Findings by researchers that identified correlations between a drug (thiopurine) used to treat autoimmune diseases and harmful levels of metabolites in the bloodstream constituted the law of nature. The process for which a patent had been granted had three steps: first, administering the drug; second, determining metabolite levels in the bloodstream; and third, informing the doctor that metabolite levels above or below specified thresholds indicated a need to decrease or increase the drug usage. To the Court, this process was no more than stating a law of nature and adding the words “apply it,” and was not sufficient for the grant of a patent.

The Patent Office has provided guidelines to its Patent Examiners on applying the Court’s rulings in the examination of patent applications. Nevertheless, nebulous, wordy, unclear descriptions of processes and intangibles continue to pour forth from the Office each week as approved patents. Perhaps a reason is that the Patent Office’s heart is not really into the curtailing of process patents.

In late July 2012, Director Kappos posted an entry in his Director’s Forum. The title of the entry was “Some Thoughts on Patentability.” A recent decision of a lower federal court, the Court of Appeals for the Federal Circuit, had contained language and an analysis that arguably downgraded Section 101’s role as a threshold test of patent eligibility. The decision was CLS Bank International v. Alice Corporation.

Director Kappos described the court’s decision as saying that other sections of patent law did the substantive work of disqualifying inventions not worthy of a patent and that Section 101 was merely a general statement of the type of subject matter eligible for patenting. Moreover, the exceptions to patent eligibility recognized by the Supreme Court—laws of nature, natural phenomenon, and abstract ideas—should arise infrequently. The Director’s solution to the patent eligibility issue was more tightly drawn patent applications.

“Anything under the sun that is made by man" is one view of what can be patented under U.S. patent law. The phrase was in a report of a U.S. Congressional Committee and in 1980 was noted with apparent approval by the U.S. Supreme Court. The view that patentability encompasses pretty much anything is the predominant view in the U.S. patent community of inventors, patent lawyers, the Patent Office, and corporate holders of multiple patents. To adherents of this view, including apparently Director Kappos, the patent eligibility issue should be of little concern. After all, if properly and fully described, anything made by man should be patentable.

But as evidenced by its two recent patent decisions, today’s Supreme Court does believe that patentability has limits. The Court is not certain about what those limits are, but seems certain they exist. And as a majority of the Justices recognized in Bilski, the difficulty of finding the limits has been exacerbated over the last several decades as the Industrial Age has given way to the Information Age. The Industrial Age was a time of tangibles, of physicality, of inventions and improvements thereof that in most cases could be seen, felt, and handled. But in the Information Age, intangibles, both as processes and as products, have become commonplace.

The problem with considering intangibles no different than tangibles for patent purposes is that when an “invention” is only an intangible process or product, the necessary limiting and defining descriptions become much more difficult to achieve. The degree of detailed certainty that can be provided for a tangible invention is in many cases unreachable for an intangible invention.

A saying one sometimes comes across in the patent world is that a patent is an invention and words describing the invention. But with intangible processes or products, the invention and the words describing it merge all too easily, resulting in a patent being granted for just the words. Perhaps those words are entitled to some sort of legal protection. But providing the degree of protection that a patent enjoys seems far too generous.

The Supreme Court has decided that Section 101 has a substantive role to play in patent analysis. Director Kappos appears to have a different view. And the output of the Patent Office seems to reflect his view. Among the patents granted each week are a substantial number that involve vague intangible processes or products. So, Honorable Justices, just because you say what the law is doesn’t mean everybody’s listening.

PAUL RYAN AND THE BATTLESHIP WISCONSIN

Mitt Romney’s introduction of Paul Ryan as his running mate occurred in an appropriate setting. The location was Norfolk, Virginia, and the retired battleship Wisconsin was in the background. Once the premier naval weapon, battleships are long past their heyday. In the 21st Century, battleships are an anachronism.

And that’s what the philosophy, intellectual underpinnings, worldview, economic predilections, and general outlook of today’s Republican Party, and conservatives, are: anachronisms. No one expressed it better than William F. Buckley, Jr. did in launching the conservative journal National Review in 1955: standing “athwart history, yelling Stop.”

So vote for Mitt and Paul. Return the nation to the past. Launch more battleships. Never mind that the Information Age is rendering pure Capitalism quaint, pure Socialism a chimera, the past just history. Don’t look forward; it’s too frightening. Grasp the past. Yes, that’s an ideal campaign slogan: Grasp the Past! Mitt and Paul, Back to the Future!

SUPREME COURT ADOPTS DATA IN-DATA OUT PATENT TEST

In these times of super-partisanship, all major decisions of the U.S. Supreme Court are along the lines of five-to-four, right? Conservatives on one side, liberals on the other, a swing vote or two determining the outcome?

Well, it is certainly easy to have this impression. But even in this period of extreme dogmatism, all nine justices occasionally find themselves in agreement on a case, and not merely a case of little import. One such instance occurred this past spring. In a unanimous decision, the Court just might have taken a positive step toward easing a significant economic conflict. That conflict is between an Industrial Age patent system on one hand and the realities of the Information Age on the other.

On March 20, 2012, the Court decided the case of Mayo Collaborative Services v. Prometheus Laboratories, Inc. Justice Breyer delivered the Opinion of the Court. There were no dissenting opinions. There were not even any concurring opinions, those ramblings in which a Justice or Justices say in effect, “We sorta agree with you, but. . . .” In short, everybody was on board.

In the decision, the Court held that a process of applying researchers’ findings about the proper dosage of specific drugs was not entitled to a patent. The drugs were thiopurine drugs to treat autoimmune diseases. The process involved three steps: (1) an “administering” step in which a doctor administered a drug to a patient, (2) a “determining” step in which the doctor measured the resulting metabolite levels in the patient’s blood, and (3) a “wherein” step in which the doctor was to increase or decrease the drug dosage if the metabolite level was outside a specified range.

This three-step process, in the Court’s view, was nothing more than stating an unpatentable law of nature—the researchers’ findings—and adding the words “apply it.” Something more was needed before the application of a law of nature qualified as a patentable invention.

An observer’s first reaction might be, “So what’s the big deal?” The big deal is that the process patent in the Mayo case is an example of what a sizeable portion of the patent system has become in the Information Age: words, sometimes precise but more often vague, describing how to do something that involves a substantial degree of intangibility. Business methods patents are one variant of the group. Another common term is software patent, which at an unpatentable level is just a computer program. But add a little hardware, and U.S. Patent Office Examiners, striving to meet performance goals, are often persuaded.

Included in Information Age patents are financial arrangements and manipulations that result in exotic financial products, business and managerial analysis procedures that purport to optimize operations, and scoring and ranking exercises that lend an aura of certainty to murky decision-making.

U.S. patent law authorizes patents for processes, machines, manufactures, and compositions of matter. In an outburst of exuberance, a Congressional Committee report in 1980 stated that “anything under the sun” was patentable. Realizing this was not quite the extent of the patent concept, the Supreme Court over the years has narrowed patentability to exclude laws of nature, natural phenomena, and abstract ideas. But the boundary between what is and what is not patentable remains ill-defined. Indeed, as the predominantly tangible Industrial Age has given way to the intangibles of the Information Age, the boundary has become more and more opaque.

In 2010, the Supreme Court, in Bilski v. Kappos, 561 U.S. __, 2010, grappled with the boundary’s location. The Court affirmed a lower court decision that a process involving a form of financial derivative, specifically a hedging transaction in the energy markets, was not patentable. All nine Justices agreed on the ultimate result, but they took several paths to that result.

Four Justices—Kennedy, who wrote the opinion of the Court, Roberts, Thomas, and Alito—said as little as possible. They defined the proposed patent as an abstract concept and rejected it for abstractness. But they did not hold that business methods in general were unpatentable. Business methods presented special Information Age challenges—the opinion specifically recognized the existence of the Information Age—but the four Justices found no general prohibition on the granting of patents for business methods.

Four other Justices—Stevens, who wrote a concurring opinion, Breyer, who joined in that opinion and also wrote another concurring opinion, Ginsburg, and Sotomayor—took a more expansive view. They would have prohibited business methods patents outright. Justice Scalia joined a portion of Kennedy’s opinion and a portion of Breyer’s opinion. The portions of Kennedy’s opinion and Breyer’s opinion that Scalia joined were portions that did not raise questions or concerns about patents for business methods. Interestingly, the portions of Kennedy’s opinion Scalia did not join were also the only portions of the opinion that referred to the Information Age. Perhaps a Constitutional Originalist and the Information Age don’t mix well.

Thus, although everyone agreed on the ultimate outcome, the varying rationales made for a rather messy situation. The one point of agreement in the rationales seemed to be that a machine-or-transformation test provided a useful and important clue for determining whether some claimed processes were patentable, but it was not the sole deciding factor. The machine-or-transformation test for an invention that involves a process is if (1) the process is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. But to emphasize, the machine-or-transformation test only provided a clue regarding patentability.

So Bilski left much uncertainty in its wake.

One approach to bringing a little more clarity to the question of what is and what is not patentable might be the application of a data in-data out test. Data, incidentally, is a fundamental pillar of the Information Age. In a data in-data out test, if the subject matter of a patent application consists primarily of introducing data into a system—system being broadly defined—applying or otherwise manipulating the data, and then extracting a largely intangible result of predominantly data, then the threshold of patentability has not been achieved.

And without saying expressly that was what it did, that indeed was what the Supreme Court appears to have done in Mayo. The Court’s explicit analysis was centered on whether the process in Mayo was a patently permissible application of a law of nature, or merely a statement of the law of nature with the directive to “apply it.” But the Court’s analysis also lends itself to a data in-data out interpretation. For example, on pages 10-11 of the slip opinion, the Court says: “The upshot is that the three steps simply tell doctors to gather data from which they may draw an inference in light of the correlations.” The process’ data in? “gather evidence.” The process’ data out? “an inference.”

The Court discussed two precedents in depth: Diamond v. Diehr, 450 U.S. 175 (1981), and Parker v. Flook, 437 U.S. 584 (1978). Each precedent involved a process of three steps. And each three-step process involved a basic mathematical equation that, like the law of nature in Mayo, was itself not patentable. In Diehr, the process was determined to be patentable. In Flook, the process was determined to be not patentable. The Court’s analysis in each case can be viewed in data in-data out terms, with the difference in the results being attributed to a greater tangibility component in Diehr.

Diehr’s process was a method for molding raw, uncured rubber into various cured, molded products. The three-step process used a known mathematical equation, called the Arrhenius equation, to determine when to open the mold’s press. The three steps were: (1) continuously monitoring the temperature on the inside of the mold; (2) feeding the resulting numbers into a computer, which would use the Arrhenius equation to continuously recalculate the mold-opening time; and (3) configuring the computer so that at the appropriate moment it would signal a device to open the press. The Mayo Court appeared to attach great significance to the output in Diehr being not just data but the automatic opening of the press at the proper time.

Flook’s process was a method for adjusting “alarm limits” in the catalytic conversion of hydrocarbons. Operating conditions such as temperature, pressure, and flow rates were continuously monitored in the conversion process. When the operating conditions exceeded certain alarm limits, inefficiency or dangers were indicated. The three-step process amounted to an improved system for updating the alarm limits. The three steps were: (1) measuring the current level of the variable, temperature for example; (2) using an apparently novel mathematical algorithm to calculate the current alarm limits; and (3) adjusting the system to reflect the new alarm-limit values. Unlike in Diehr, the output of the process in Flook was somewhat removed from anything tangible. The output was simply adjusted alarm limits. The connection to hardware, to a means for setting off an alarm, was unclear.

So one can argue that another way to describe the state of the law regarding patentability is that a pure data in-data out process does not appear to be patent-eligible. But if a bit of hardware is added for the data out to interact with, then perhaps a patent is warranted. The caveat to this perhaps idealistic view concerns the field of business methods patents. Here, the data out may be an intangible such as a financial instrument, a customer rating, a fraud score, or an optimization selection. One can argue from Flook, Diehr, Bilski, and Mayo that a predominately intangible output in a process should not result in a patent. Unfortunately, each week the Patent Office awards a number of patents for data in-data out processes that have little tangible output and involve not much more than general purpose computers running particular software.

A saying one sometimes hears around the Patent Office is that a patent is an invention and words describing the invention. But in many patent applications in the Information Age, the words predominate. The invention is an intangible, an idea, a series of steps, an abstraction. Maybe some legal protections are desirable for these types of inventions. Perhaps a copyright. Perhaps an entirely new concept. But ramming the intangible innovations of the Information Age into the largely tangible-oriented patent system of the Industrial Age is not a particularly pretty sight.