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CBO Agrees: Trumpcare Wipes Out Protections for Pre-Existing Conditions

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Earlier this month I passed along a note from Matthew Fiedler of the Brookings Institution. Long story short, he suggested that the Republican health care bill would do more than eliminate community rating only for folks who failed to maintain continuous coverage.1 He theorized that once a separate set of rates was set up, insurers could open it up to anyone. Since this second rate schedule would be medically underwritten—i.e., based on health status—it would be very cheap for young, healthy folks. In the end, healthy consumers would all gravitate to the medically-underwritten rates while unhealthy consumers would be stuck with the higher community-rated prices. Over time, the difference between these rates would grow, which means that anyone with a pre-existing condition would end up paying much higher rates than similar healthy people.

This was an interesting suggestion, but since then I haven't heard anyone else support Fiedler's argument. Until today, that is. AHCA allows states to apply for waivers from two provisions of Obamacare. The first is the requirement to provide essential health benefits. The Congressional Budget Office describes the other waiver:

A second type of waiver would allow insurers to set premiums on the basis of an individual’s health status if the person had not demonstrated continuous coverage; that is, the waiver would eliminate the requirement for what is termed community rating for premiums charged to such people. CBO and JCT anticipate that most healthy people...would be able to choose between premiums based on their own expected health care costs (medically underwritten premiums) and premiums based on the average health care costs...(community-rated premiums).

....CBO and JCT expect that, as a consequence, the waivers in those states would have another effect: Community-rated premiums would rise over time, and people who are less healthy (including those with preexisting or newly acquired medical conditions) would ultimately be unable to purchase comprehensive nongroup health insurance at premiums comparable to those under current law, if they could purchase it at all....As a result, the nongroup markets in those states would become unstable for people with higher-than-average expected health care costs.

So the CBO expects precisely the result that Fiedler predicted. This is genuinely big news and deserves wider reporting. For all practical purposes, AHCA eliminates the requirement that insurers charge the same rates to everyone, even those with pre-existing conditions. They still can't flatly turn you down, but they can do the next best thing: make insurance so expensive for those with pre-existing conditions that most people can't afford it. That's especially harmful since the subsidies under AHCA are so skimpy.

This provision of AHCA has no direct budgetary impact, so it ought to get tossed out by the Senate parliamentarian.2 We'll have to wait and see how that turns out.

1"Community rating" is the requirement that everyone pays the same price for insurance, even if they have a pre-existing condition.

2AHCA is being passed as a reconciliation bill. These bills are only allowed to address issues that directly affect the federal budget.

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Cloudflare Ups The Ante In Search Of Prior Art To Invalidate ALL Patents From Patent Troll Blackbird Tech

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A few weeks ago, we wrote about Cloudflare's decision to punch back hard against a patent troll, Blackbird Technologies, that had sued the company over a questionable patent (US Patent 6,453,335). Beyond just challenging the claim of infringement, the company also filed ethics complaints against the lawyers who run Blackbird, noting that the company appeared to be a law firm masquerading as a company, and breaking a number of local rules about law firms and "buying" a proprietary interest in a lawsuit. At the same time, Cloudflare set up a $50,000 fund to offer prizes to people who could find prior art not just to invalidate the patent that Cloudflare was sued over but also every other patent held by Blackbird Technologies.

Apparently, the company has now received a ton of submissions -- many of which it claims are quite thorough. And it's upping the ante. An anonymous donor has agreed to match the $50,000 fund, and so now Cloudflare is offering $100,000 for prior art to invalidate Blackbird Tech patents. The company says that it's received 140 separate prior art submissions so far, targeting 18 of the 38 patents and applications it knows about, but wants to go after the rest as well.

We’ve been impressed with the exceptionally high quality of the submissions. The Cloudflare community of users and readers of our blog are an accomplished bunch, so we have a number of searches that were done by expert engineers and programmers. In one case that stood out to us, someone wrote in about a project they personally had worked on as an engineer back in 1993, which they are convinced is conclusive prior art to a Blackbird Tech patent. We will continue to collect and review these submissions.

The submissions so far relate to 18 of the 38 Blackbird Tech patents and applications. You can see a summary of the number of submissions per patent here (PDF). You'll see there are still 20 Blackbird Tech patents and applications we’ve yet to receive a submission for.

We’re looking for prior art on 100% of the Blackbird Tech patents. If you are interested in helping, take some time to look into those patents where we don’t have anything yet. We’ll update the chart as we review the submissions with additional information about the number we receive, and their quality, to help focus the search. After the initial review, we’ll start to color code the patents (i.e., red/yellow/green) to demonstrate the number and quality of submissions we’ve received on each patent.

Also, Cloudflare is nothing if not thorough in going after any and every argument made by Blackbird Technologies. In response to Cloudflare's ethics complaints against Blackbird as violating rules for lawyers and law firms, the company insists it's not a law firm, to which Cloudflare now claims "oh really?"

And Ms. Verlander’s unequivocal assertion that Blackbird Tech is not a law firm can be contrasted with sworn statements submitted by Blackbird Tech attorneys to courts last May asserting how much they operate like a law firm. In Blackbird Tech v. Service Lighting and Electrical Supplies, Blackbird Tech CEO Wendy Verlander, Blackbird Tech co-founder Chris Freeman, and Blackbird Tech employee Sean Thompson, each filed declarations in opposition to a proposed protective order.

Protective orders are important in patent litigation. Often, discovery in those cases involves companies handing over highly confidential information about their most important trade secrets or the history of how they developed valuable intellectual property. In most cases, courts limit access to such materials only to outside counsel, as opposed to the parties’ employees and in-house counsel. In-house counsel generally serve a number of functions at a business that include competitive decision-making, either directly or indirectly. Because in-house counsel may benefit from the additional perspective and insight gained by exposure to sensitive trade secrets of a competitor, and are unable to simply wipe their memories clean, courts in patent litigation cases often limit their review of particularly sensitive documents. In such cases, documents classified as “HIGHLY CONFIDENTIAL—ATTORNEY EYES ONLY” are limited to review by outside counsel, who are less likely to face the same sort of business decisions in the future.

When it served their purposes in opposition to a proposed protective order, the Blackbird Tech attorneys were quick to point out how much they operated only like a law firm and distance themselves from their business roles. Their sworn declarations specifically asserted:

  • “Although the structure of Blackbird is unique, the realities of patent litigation at Blackbird are very much the same as patent litigation on behalf of clients at law firms.” (Verlander at ¶13, Freeman at ¶14)

  • “Thus, in many ways, my role at Blackbird as a member of the Litigation Group is identical to my previous role as outside counsel at a law firm.” (Verlander at ¶13, Freeman at ¶14)(emphasis added)

  • “Blackbird’s Litigation Group operates almost identically to outside law firm counsel. Blackbird’s litigators are presented with patents and possible infringers, just as clients bring to law firms. The Blackbird litigators then bring their litigation expertise to bear and thoroughly analyze the patent and the potential infringement case, ultimately deciding whether to move forward with litigation — just as a law firm would evaluate a case. If the Blackbird litigation team identifies a strong infringement case, the litigators draft Complaints and conduct litigation, acting in the same role as outside counsel.” (Verlander at ¶14, Freeman at ¶15)(emphasis added).

  • “On a day-to-day basis, what I do at Blackbird is the same as what I did when practicing at a firm.” (Thompson at ¶2).

This inconsistency points out once again how Blackbird is attempting to gain an advantage by turning traditional roles on their head. If they were a typical company, that was looking to make products using the patents they own, then we’d be able to seek discovery on their products and operations. Instead, they function as a law firm with no business operations that would be subject to the same sort of scrutiny they will apply to a company like Cloudflare.

Also, while we noted the ethics complaints that Cloudflare has filed, it appears that politicians are paying attention and at least one is looking to make Blackbird Technologies' style of patent trolling explicitly illegal:

On May 23, 2017, Rep. Keith Wheeler of Illinois introduced a bill (the “Ethics in Patent Litigation Act”) that would make it the public policy of the State of Illinois that attorneys in the state, like Blackbird co-founder Chris Freeman (LinkedIn), should not be able to buy patents themselves for the purpose of suing on them if they are not in the business of any other productive activity.

Cloudflare is very much building on the Newegg strategy of making sure that if you try to patent troll against it, it's going to hit back hard -- which should discourage other patent trolls from trying (in Newegg's case, this has been amazingly successful, even if it took a few years). But, again, the idea that our system allows this to happen in the first place is the real travesty. Companies shouldn't have to fight back hard to discourage being attacked by patent trolls. The very existence of trolls is the problem. Bad patents, broadly granted, combined with a ridiculous patent litigation process that makes this system ripe for abuse. It's great that Cloudflare is fighting back. It's frustrating that it's even necessary.



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Manzabar
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Congress Busted Using Cable Lobbyist Talking Points In Attacks On Net Neutrality

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By now, most Techdirt readers realize that far too many members of Congress don't so much have thoughts about technology policy, as they do bulleted mental lists of talking points provided by a lobbyist happy to do their thinking for them. That has been particularly true when it comes to telecom policy over the last few months, especially the GOP's ham-fisted attack on popular consumer broadband privacy protections and the telecom sector's self-serving frontal assault on net neutrality.

Over the last few weeks, as the FCC was preparing to begin dismantling net neutrality rules, House lawmakers received an email from GOP leadership educating them on how to best defend the agency's extremely unpopular decision. Included in that e-mail was an attached list of talking points (pdf) making all manner of disengenous claims about the net neutrality debate:

"Want more information on the net neutrality discussion?” wrote Washington state Rep. Cathy McMorris Rodgers, chair of the House Republican Conference. "Here is a nifty toolkit with news resources, myth vs reality information, what others are saying, and free market comments."

Usually, Congress members cover their tracks well enough to obfuscate the fact they let lobbyists and campaign contributions do the thinking for them. But the Intercept noticed that metadata attached to the talking points clearly indicate they originated with the cable industry's biggest lobbying organization, the National Cable and Telecommunications Association (NCTA):

"The metadata of the document shows it was created by Kerry Landon, the assistant director of industry grassroots at the National Cable and Telecommunications Association, a trade group that lobbies on behalf of Comcast, Cox Communications, Charter, and other cable industry companies. The document was shared with House Republican leaders via “Broadband for America,” a nonprofit largely funded by the NCTA."

As such, you'll surely be shocked to learn that many of the talking points included in the packet weren't remotely true, including one claiming net neutrality is somehow "anti-consumer," another regurgitating the repeatedly-debunked claim that net neutrality killed network investment, and several repeating the industry's favorite claim that net neutrality protections aren't necessary, because the broadband industry never does anything wrong:

"These “Title II” regulations, rammed through the FCC by the Obama White House, were based on a hypothetical fear of broadband providers blocking certain websites or putting competitors in slow lanes. But despite ten years of the left stoking those hypothetical fears, they never materialized. Why? Because it is not in the interest of broadband providers to degrade the experience of their customers, especially when watching video or streaming services. The broadband providers would lose customers to their competitors if they ever attempted to block content."

Here on planet Earth, we've watched as large ISPs used usage caps to hurt streaming competitors, block users from using certain services unless they pay for more expensive data plans, intentionally congest their networks to drive up interconnection costs, throttle entire classifications of traffic then lie about it, and even group up to block competing mobile apps and services they didn't want to compete with. Anybody that thinks it's hyperbole to state that ISPs will use their size, leverage and the lack of broadband competition to engage in a rotating crop of anti-competitive behaviors simply has not been paying attention.

And again, while it's still unsurprising to see lawmakers mindlessly parrot whatever giant telecom conglomerates tell them to, that doesn't make it any less grotesque. Combine that with the bot that's spamming the FCC with bogus support for the FCC's unpopular policies and the coordinated effort to make net neutrality supporters appear racist and unhinged, and you may begin to notice that the companies pushing this latest anti-consumer agenda aren't particularly concerned about integrity or playing fair.



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Piracy Killing Hollywood So Bad That Disney Made More Money In 2016 Than Any Studio Ever

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Remember, to hear the MPAA tell it, piracy is really killing the movie industry. It's been whining about piracy for basically my entire lifetime, and constantly predicting its own demise if "something" is not done. And, despite the fact that Congress has repeatedly obliged Hollywood in ratcheting up copyright anti-piracy laws and despite the fact that the MPAA has been clearly wrong repeatedly (such that the new technologies it feared actually helped expand Hollywood's business), the studios continue to push for awful changes to copyright law, citing the horrors of piracy.

And yet... now it's coming out that Disney not only had a good year last year, it had the best year ever for a movie studio. Not surprisingly, Disney put out its own glowing press release over this:

Today, The Walt Disney Studios will become the first studio ever to reach the $7 billion threshold at the global box office, setting a new industry record. With a powerful $290 million global debut for Rogue One: A Star Wars Story, Disney's year-to-date grosses are $6,988.3 million from Jan. 1 through Dec. 18, 2016, including $2,700.4 million domestically, also an industry record, and $4,287.9 million internationally, a Disney record.

These phenomenal box office results are driven by films from Disney, Walt Disney Animation Studios, Pixar Animation Studios, Marvel Studios, and Lucasfilm, representing the first time that all five of these world-class brands have released films in the same calendar year.

"This historic achievement is possible because all of our film studios are bringing their absolute best to the table, telling great stories of all kinds that resonate with audiences across borders, gender, and generations," said Alan Horn, Chairman, The Walt Disney Studios. "These films work because each one has not only something for everyone, but everything for someone. It's our honor to be able to create these experiences for audiences, and we're thankful to them for continuing to come out to the theater with us.

Indeed. Making great movies and making them accessible for people to watch is a great business strategy. Freaking out about a small group of people seeing infringing copies of the movie? Perhaps not so much. Either way, it's amusing to see how the studio's own PR drastically undermines the doom and gloom stories from the MPAA and Hollywood's other lobbyists about how dire the situation is. Maybe copyright infringement isn't such a big problem when you actually focus on making a quality product that people want.



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First data from Juno shows strong magnetic field, massive polar storms

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Enlarge / Jupiter's chaotic, cyclone-filled poles. (credit: J.E.P. Connerney et al., Science)

It's hard to imagine that the Solar System's biggest planet, which provided Galileo with his first key astronomic observations, has a lot of secrets left 450 years later. Yet, despite countless hours spent peering through telescopes and numerous robotic visitors, there's a lot we still don't know about Jupiter. Most notably, we didn't even have a decent picture of the planet's poles, and we have little idea of what its interior might look like.

Thanks to the arrival of the Juno probe, however, that's starting to change. After just a few orbits, Juno has imaged both poles, tracked some of the dynamics of its atmosphere, and started providing evidence of what may lie at the crushing depths of the planet's interior.

Staring at the clouds

Earlier this year, Juno performed the closest approach to Jupiter ever made by human hardware, passing within 5,000km of Jupiter's cloud tops. Juno's highly elliptical orbit also takes it over both poles, allowing them to be imaged in greater detail than ever before. And every instrument on the probe managed to capture some data.

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Radio-controlled pacemakers aren’t as hard to hack as you (may) think

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Enlarge (credit: US Food and Drug Administration)

Pacemakers are devices that are implanted in the chest or abdomen to control life-threatening heartbeat abnormalities. Once they're in place, doctors use radio signals to adjust the pacemakers so that additional major surgeries aren't required. A study recently found that pacemakers from the four major manufacturers contain security weaknesses that make it possible for the devices to be stopped or adjusted in ways that could have dire effects on patients.

Chief among the concerns: radio frequency-enabled pacemaker programmers don't authenticate themselves to the implanted cardiac devices, making it possible for someone to remotely tamper with them.

"Any pacemaker programmer can reprogram any pacemaker from the same manufacturer," researchers from medical device security consultancy WhiteScope wrote in a summary of their findings. "This shows one of the areas where patient care influenced cybersecurity posture."

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