The Sovereign Citizen: Denaturalization and the Origins of the American Republic by Patrick Weil

We each deploy an array of identities in forming our social selves -- we can be, say, a Methodist and also a Southerner, and black and a civil engineer and gay. And all of this and still an American. Each aspect distinguishes us; together they individuate us. No single identity -- even that of our nationality -- adequately describes who we are, how we see ourselves. In these times, we no longer see the possession of one nationality as excluding another; many have more than one nationality. We can be both French and American; one does not displace the other in the modern imagination. (A nod to the late Tom Franck here, who explored these themes, personally and in his writings on nationality.)

Yet certain identities have been viewed as inherently incompatible with the holding of the fullest form of American national identity: U.S. citizenship. At various times one could not be an anarchist or an Asian or a Nazi or a communist and become (or perhaps remain) an American. Patrick Weil examines these disabling identities in The Sovereign Citizen, a thorough history of U.S. naturalization law. His emphasis lies with denaturalization: that is, the legal reversal of the grant of U.S. citizenship to an alien. For much of the 20th century, the recourse to denaturalization expands in parallel with the stiffening of opportunities for immigration. The vulnerability to denaturalization marked the ‘second class’ nature of U.S. citizenship acquired through naturalization; the hold of U.S born citizens on their nationality was (and continues to be) more secure. Denaturalization as a broad practice then collapses: from the Warren Court onward denaturalization has become an exceptional act.

Our view of citizenship shifted during the 20th century. It began as an exclusive (if not jealous) relationship between the United States and its nationals, characterized by duty and loyalty. These understandings differ from today’s far more easygoing tolerance (if not encouragement) of multiple nationalities and distributed allegiance. Weil’s book explores and the targets and the techniques of denaturalization.

Extraterritorial Government Use of U.S. Process Patents after Zoltek

The federal government -- and its contractors and subcontractors -- have long enjoyed an effective ‘compulsory license’ for the use or manufacture of inventions covered by a U.S. patent. 28 U.S.C. §1498 relaxes the government’s sovereign immunity and supplies a special remedy to the patent holder. The patent holder may recover reasonable compensation from the federal government for the use or manufacture. Thus, a government contractor can carry out a contract without concern for an infringement action; the government will answer any patent holder’s claims.

The operation of Section 1498 applies to both product and process patents. Section 1498 contains an express limitation to any claims ‘arising in a foreign country.’ This limitation, as well as the territorial limitation found in the basic patent infringement statute [35 U.S.C. §271(a)], and their interpretation with respect to process patents, were the basis of the dispute between Zoltek Corporation and the federal government.

The eventual resolution of the Zoltek litigation by the Federal Circuit [672 F.3d 1309] settles various questions of interpretation concerning the extraterritorial dimensions of the government use ‘license’ with respect to process patents -- but it also leaves a rather worrisome ‘gap’ in the coverage of the basic provisions concerning process patent infringement. Consider these two propositions:

1. In the absence of authorization, where every step of a process patent is practiced in the United States, liability under 35 U.S.C. §271(a) results. However, if any step of a process patent is practiced outside the United States, there is no direct infringement. 
2. Where every step of a process patent is practiced outside the United States and the resulting product is imported into or used within the United States, liability under 35 U.S.C. §271(g) results. 

So here’s the gap (and the facts of Zoltek seem to fall into this gap): if a process patent is practiced partly in the United States and partly outside the United States, there may be no liability. This odd result seems to follow from the text of 35 U.S.C. §271(g), which is triggered by the importation or use of a product.

Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding by Orly Lobel

Orly Lobel is not writing about love in Talent Wants to be Free, but she’s not terribly far off topic, for she writes about the suffocating attachments firms can form with their employees. The heart-sickened are told to let go -- and perhaps their beloveds will come back to them. This may be the better course, but it isn’t easy and it certainly isn’t what most of us do (with our insecurities and covetousness). Firms are jealously possessive of their key employees; this is a social fact. Lobel challenges these firms (and the responding legislatures) to consider whether they are indeed pursuing their own best interests by clinging.

Lobel usefully gathers a variety of legal doctrines and instruments into a basket she calls “human capital controls” -- and for this alone her book should be read. Human capital controls include IP and quasi-IP (trade secrets and know-how) rights, as well as a host of contractual features: non-competes, non-disclosure agreements, compensation arrangements (option grants and forfeitures) and post-termination obligations. Together, these elements bind the talented employee to her employer. The orthodox justification for these controls is that they promote firm investment in innovation, including investment in human capital -- that is, in forming the movable productivity of the employee herself. It is the workplace, and not the university, where most valuable human capital is created.

Lobel directly investigates the logic of control -- which is easily conflated with ownership. By controlling human capital, firms capture some of its produce. Creative workers create. In addition, firms withhold these assets from their competitors. According to the received view, employees are rivalrous goods. Lobel challenges this notion (though perhaps not explicitly) -- while we are not public goods, our creations often are.