“We cannot be complicit. We have to speak out.”

In seven years writing this blog, I have not spoken about social or political issues.  Now I speak.  President Biden is right.  “We cannot be complicit.  We have to speak out.”

There is no place for hate against Asian-Americans.  There is no place for hate against people because of the color of their skin.  There is no place for hate against people because of their religion, or because of their non-belief.  There is no place for hate against people because of the country they came from or the country their ancestors came from.

My daily world is the world of intellectual property.  One of the oldest international agreements relating to intellectual property is the Paris Convention for the Protection of Industrial Property, a treaty that was adopted exactly 138 years ago on March 20, 1883.  One of the purposes of the Paris Convention was to bring an end to laws and policies by which some nations had treated people from other nations poorly in the particular areas of obtaining patent protection, trademark protection, and design protection. 

The treaty is composed of thirty numbered Articles, the first of which names and defines the treaty.  Most of the numbered articles are rather dry legal language spelling out procedures for (for example) filing a first patent application in a first country, and a second patent application in a second country, and linking the two patent applications together in a particular way.  The dry Articles start at Article 3 and continue to Article 30.

Which brings us to Article 2 of this treaty that was adopted exactly 138 years ago.  The drafters of this treaty, after doing the throat-clearing of Article 1, and before proceeding with the dry legalize of Articles 3 through 30, wrote Article 2:

Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.

Translated into plain language, this says:

[So far as applying for patents and registering trademarks and protecting designs is concerned,] we promise to treat people from other countries as well as we would treat people from our own country.

Among the first countries to join this treaty were Belgium, Brazil, Denmark, the Dominican Republic, France, Guatemala, Italy, Japan, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Tunisia, the United Kingdom, and the United States of America.  Each of these countries promised to treat nationals of other countries as well as they would treat their own nationals (in the specific area of patents, trademarks, and design protection).  In the years that have passed since then, 160 more countries have joined this treaty and have made this promise to treat nationals of other countries as well as they would treat their own nationals, in this area.  

I was not there to see it in 1883 but I’d guess the roomful of people who negotiated the language of that treaty included few if any women and few if any people of color.  Having said this, you can see that on this narrow question of of treating people from other countries the way you would want people from your own country to be treated, they got the right answer.

Now it is 2021 and we see things that happen in the world around us.  Hate against Asian-American people.  Hate against people because of the color of their skin.  Hate against people because of their religion, or because of their non-belief.  Hate against people because of the country they came from, or because of the country their ancestors came from. 

Every one of us must speak out.

If you have a platform that permits you to speak, please use your platform to speak.

If a march or gathering happens near you to support Asian-Americans, or other groups that are targets of hate these days, please join the march or the gathering.

There are many ways that each of us can communicate our support to those around us.  We must communicate our support.  

16 Replies to ““We cannot be complicit. We have to speak out.””

  1. A thoughtful, wise, and principled post, Carl. It made me tear up. If you don’t mind, I will be copying and sharing your remarks on my personal Facebook page with full attribution to you.

    Well, well said, valued colleague.

  2. Thank you Carl. Yes, we need to speak out, and thank you for doing so. I’ll just add two points here (having myself spoken out in any number of ways).

    First, what you said above is explicitly Christian religious morality – the golden rule of “love they neighbor as thyself” – Mark 12:31 – and the morality that underlies most secular ethics – the “golden rule,” which that great source of pretty good information Wikipedia states “is the principle of treating others as you want to be treated. It is a maxim that is found in most religions and cultures.”

    And second, the violence and hate of others perhaps is not the most serious problem (although quite serious and hence the need to speak out now). It is the failure to recognize others as warranting equal treatment. Just see what we are doing with vaccine nationalism so that we can save more of “us” than of poorer brown and black peoples around the world. But that is not a function of hate. It is a function of self-interest and local identification. National treatment still permits national preferences that go mostly to people within the nation. We just aren’t ready to accept world governance and equal treatment (at whatever standards world government would impose equally).

  3. Ah, Carl, it is always good to find one’s friends on the correct side of a life-and-death issue. Well said.

  4. I am very proud to have counted you as one of my friends. I stand with you and all others against hate of any kind!

  5. Thank you, Carl, for speaking out. I too have avoided speaking out for nearly a decade – I suppose at least partly because I have some employees who get angry when I say anything they disagree with, and partly because I’m not sure what I can do to make a difference. So I just donate a little to campaigns where I think it might help a little.

    And to a point made by Prof Sarnoff, indeed, just about everything the far right is saying these days is antithetical to virtually all world religions, and yet they claim to be Christian. Jesus was a marvelous transformative teacher, and Christianity has often been a wonderful force for good throughout history, but not always. And now, a large segment of it in America – about 80% of white evangelicals – has been led astray by poorly informed preachers who have been brain-washed by their corrupt church leaders. I’m hopeful that with a sincere Christian back in the highest office of the land – and with many young people finding their voice – that we’ll begin to slowly see some return to Christ-centered teachings in many conservative schools and seminaries. And then a new crop of ministers will slowly begin to lead their flocks back to true Christianity. That will take more than a decade, but I see that as the only hope for America. I’m not sure what to do to accelerate that process. I need to think about that some more. Maybe I need to shift my donations toward those who have been gallantly leading that effort for decades, like Jim Wallis at Sojourners, and others.

  6. Dear Carl:

    Thank you. It means a lot to me on a personal level as an Asian-American to see this comment. Additionally, I say this as a person who, like you, wishes to see no prejudice towards individuals because of where they come from, what they believe, what they look like, and who they are (or are perceived to be). The Paris Convention writers, whether they intended to or not, put down in writing a principle we should all strive toward today.

  7. Carl – Thank you for speaking out!

    (And I agree that Paris, Article 2, got it right; “treat people from other countries as well as we would treat people from our own country.”)


  8. Dear Carl, I used to think patent law was somewhat immune from the political divisiveness of these times. I then read a paper about Invention of a Slave, an opinion by the Attorney General in 1858 about whether a slave could be an inventor, and of course some things happened last year …. So yes, even patent lawyers have to speak out.

  9. A positive and constructive post. We cannot win with division and exclusion. It’s wrong. Thank you Carl!

  10. Dear Carl, Thank you for writing this post. It’s an added burden for people of color to articulate racism (especially in the face of overwhelming lack of discussion in “polite” society), then to defend their perspectives against naysayers, and simultaneously to educate would-be allies. This work is draining. Any breaking of the silence by your or others is welcome. This is something that the late Keith Aoki, as well as other Asian Americans who do scholarship in IP and race, understand well – but is not usually acknowledged or understood by our otherwise supportive IP community. I appreciate that you are normalizing the discussion of race, which has to happen (especially within white spaces) before we can move past the hate that animates this and other violence. Today, I’ll be teaching Bob Brauneis’s Copyright, Race, and Music materials in my Copyright class – it just so happens. It’s a long overdue step on my part to normalize the discussion of how African American creations have been exploited and appropriated without compensation historically. We’re all in this together – we’ll either fail or support each other into a forming a more inclusive and historically informed society. So again, thanks. Maggie

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