وکیل رضا صبوری

Due to rapid industrialization and the consequent exacerbated
use of fossil fuels, which are most responsible for global warming,
it is estimated that the global average temperature has increased
by more than 0.2 °C per decade, intensifying and accelerating
climate change¹. The Paris Agreement, approved in more
than 195 countries, aims to reduce green،use gas emissions to keep
the increase in the global average temperature at less than 2
°C above pre-industrial levels.².

In line with the importance of sustainable development and the
emergence of the 3R concept (Reduce, Reuse and Recycle), the
industry has been progressively adopting green ،ucts and
processes. Investment in the area of alternative energy is a
reality in Brazil, il،rated, for example, by the arrival on the
market in 2022 of Diesel R, developed by Petro،s³.

All this innovation is reflected in the patent system. Patent
do،ents carry a vast database with technical information about
the most varied technologies, including inventions with a
sustainable nature that can help solve environmental problems. In
this scenario, offices from different countries and global
،izations such as the World Intellectual Property Organization
(WIPO) began to propose projects that encourage and publicize these
inventions. The “WIPO GREEN” programs stand
out⁴, prepared by WIPO and the Green Patents program of
the National Ins،ute of Industrial Property
(INPI)⁵.

On February 7, 2024, WIPO released its “WIPO GREEN Annual
Report”⁶ 2023, which highlights the activities
carried out and the successes achieved by the WIPO GREEN program.
This program, which operates through several projects and the
online platform called “WIPO GREEN”, cele،ted its tenth
year of existence in 2023. Through said platform, information is
shared about approximately 130,000 green technologies on a global
scale, which are characterized by its sustainable and synergistic
purposes with the environment, primarily aim to facilitate the
dissemination of knowledge and the transfer of these technologies
between various relevant actors. Sharing promotes direct contact
between technology inventors and ،ential interested parties, thus
fostering innovation and the development of sustainable solutions
on a global scale. Since its inauguration in 2013, the WIPO GREEN
platform has been widely recognized as one of the most significant
contributions ever made to the dissemination of green technologies
on a global scale.

A، the contents presented in the 2023 WIPO report, a detailed
،ysis is made of the historical milestones achieved and the
results obtained over the 10 years of operation of the platform. Of
particular note are the acceleration projects that have been
conducted annually since 2015 on different continents, with the aim
of providing sustainable solutions for areas facing environmental
urgency. One example was the acceleration project carried out in
Latin America in 2023, which focused on implementing climate-smart
agriculture technologies.

In the year 2023, WIPO took advantage of the vast information
stored on its platform to launch the second edition of its book
،led “Green Technology Book”⁷. In this
edition, with a strong focus on mitigating climate change, more
than 200 technological solutions were presented carefully selected
for their relevance and sustainable impact.

In order to implement this vision for sustainable development in
Brazil, INPI inaugurated its Green Patents pilot program in
2012⁸, initiating the possibility of accelerating the
examination of patent applications related to the area of green
technology, upon request for priority examination. With the success
of the pilot program, in 2016 INPI issued INPI Resolution No.
175/2016 establi،ng it as a permanent service within the
ins،ute. The resolution applies to inventions that fall into the
following strategic categories of green technologies: (1)
Alternative energies; (2) Transport; (3) Energy conservation; (4)
Waste management, Sustainable agriculture (5).

In 2020, the program was updated through INPI/PR Ordinance No.
247, expanding the “priority exam” to “priority
procedure”, now covering the anti،tion of not only exams,
but all activities of the patent process. For green technologies,
since the date that INPI/PR Ordinance No. 247 came into force, the
average time between the request for priority processing and a
decision being issued by INPI has reduced to around 10 to 11
months⁹, compared to an average of 3 years for requests
wit،ut priority processing.

Therefore, it is possible to infer that the policy of promoting
innovation in the area of green technologies plays a crucial role
in helping to mitigate the climate effects resulting from
industrialization. This is due to the fact that green technology
patents stimulate investment and the dissemination of sustainable
innovations, contributing to the search for solutions to ongoing
environmental challenges. Therefore, the importance of green patent
incentive programs stands out, which simplify the patent granting
process and accelerate the dissemination and availability of these
essential technologies for progress towards environmental
sustainability. This strategy not only meets human needs, but also
benefits the industrial sector itself, since investments in green
technologies can result in optimized processes, such as resource or
energy savings, as well as more compe،ive ،ucts on the
market.

Footnotes

1.

2.

3.

4.

5.

6.
reports/2023.html

7.

8. Resolução INPI Nº
283/2012

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

Professor Shai Davidai, an ،istant professor at Columbia Business Sc،ol, was reportedly denied access to the main campus on Friday as his sc،ol ID was “deactivated” during the recent protests over the Israeli-Gaza conflict. What was equally concerning is that the university did so for his own protection out of concern that, as an outspoken Jewish faculty member, he could not walk around the campus safely. It was reminiscent of the recent controversy of a man in London threatened with arrest because being “quite openly Jewish” would trigger pro-Palestinian pro،rs.

Davidai said that the university told him they banned him from campus because they could not ensure his safety. This followed a Columbia rabbi telling Jewish students to leave campus for their own safety.

The most basic obligation of a university is to ensure the safety of its faculty and students from physical ،aults. If there is a problem on campus, it is found in t،se students or faculty w، would threaten a Jewish professor if he were to walk on campus.

This is not part of the debate over what language is considered a threat or hateful rhetoric. This is barring a professor because his status alone makes his presence inflammatory or dangerous. I cannot imagine ،w the solution was barring the ،ential victim of religious-based bigotry and violence.

We have not heard from Columbia University on the “deactivation.” Unless Professor Davidai is lying, someone cut off his access in the university. The university owes him and the Columbia community an immediate explanation. Indeed, University President Nemat “Minouche” Shafik s،uld have issued a statement yes،ay.

There are calls for Shafik to resign. That position is not helped by the silence on the barring of a faculty member. If the accounts are untrue, Shafik needs to say so. If they are true, she needs to explain the basis for this extraordinary action. I cannot imagine the basis for such a deactivation since Shafik has not been accused of any threatening conduct himself.

As major donors like Robert Kraft pull their financial support from Columbia, the sc،ol will need to respond more quickly and transparently to such controversies. That can s، by reactivating the card of Professor Davidai and supplying whatever security is needed to allow him and others to walk around campus wit،ut fear of ،ault.

Almost exactly one year ago, a new legal tech s،up, The Contract Network, came out of stealth, with a mission to “radically accelerate the time for contract negotiations” through an AI-powered contract collaboration platform where all parties to a deal engage in a secure and neutral environment.

The company’s cofounder and CEO, Jim Wagner, is a legal tech veteran with a track record of s،ing and leading successful companies in contracting and e-discovery, including having cofounded the e-discovery company DiscoverReady, having been president of the contract management and ،ytics company Seal Software, and, after Seal was acquired by DocuSign, having been vice president of agreement cloud strategy there.

With The Contract Network, Wagner aims to “change contracts for good” by solving the problem of contract negotiations taking too long and lacking tools for real-time collaboration, communication and transparency a، all parties.

On today’s LawNext, Wagner is our guest, to talk about what he sees as broken with the traditional contract negotiation process and ،w The Contract Network offers a better option. Given his 30-year career in this industry, he also shares his t،ughts on ،w it has evolved and where we are today.

Thank You To Our Sponsors

This episode of LawNext is generously made possible by our sponsors. We appreciate their support and ،pe you will check them out.

If you enjoy listening to LawNext, please leave us a review wherever you listen to podcasts.

I was delighted to sign on to this amicus brief supporting the challenge to Texas’s S.B. 12 (Woodlands Pride, Inc. v. Paxton (5th Cir.)), which was filed on behalf of Prof. Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law Sc،ol, and me. Here’s a summary of the Texas statute, from the brief:

{S.B. 12 restricts “[s]exually oriented performance[s],” which are defined as one that features ، or “،ual conduct” and “appeals to the prurient interest in ،.” See Tex. Penal Code § 43.28(a)(2). Sexual conduct, in turn, is defined as, a، other things, “the exhibition of ،ual gesticulations using accessories or prosthetics that exaggerate male or female ،ual characteristics.” Id. § 43.28(a)(1)(E). None of the key terms—”،ual gesticulations,” “accessories or prosthetics,” “exaggerate”—are further defined.

Texas restricts these performances three ways: (1) S.B. 12 criminalizes the performers by making it a crime to “engage[] in a ،ually oriented performance” “on public property” where it “could reasonably be expected to be viewed by a child” or “in the presence” of a minor, id. § 43.28(b); (2) it regulates non-public, commercial properties by prohibiting anyone w، controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child’s presence, Tex. Health & Safety Code § 769.002; and, (3) it proscribes a muni،lity or county from aut،rizing such a performance “on public property” at all or “in the presence of an individual younger than 18,” Tex. Loc. Gov’t Code § 243.0031(c)(1)–(2). The defined performances are banned regardless of whether they have literary, artistic, political, or scientific value.}

Here’s the summary of the argument:

[S.B. 12] is an uncons،utional content-based restriction on First Amendment-protected s،ch. The Supreme Court has repeatedly held that similar laws targeting “،ually oriented” s،ch are content-based and subject to strict scrutiny.

Even t،ugh S.B. 12 does not explicitly mention “drag,” the state legislature intended to, and did, functionally target drag performances in Texas, especially when viewable by minors but also when performed on public property regardless of whether in the presence of a minor. See Tex. Penal Code § 43.28(b) (criminalizing “engag[ing] in a ،ually oriented performance” “on public property” where it “could reasonably be expected to be viewed by a child” or “in the presence” of a minor); Tex. Health & Safety Code § 769.002 (regulating non-public, commercial properties by prohibiting anyone w، controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child’s presence); Tex. Loc. Gov’t Code § 243.0031(c)(1)–(2) (proscribing a muni،lity or county from aut،rizing such a performance “on public property” at all or “in the presence of an individual younger than 18”); Tex. Loc. Gov’t Code § 243.0031(c)(1) (banning muni،lities from permitting the restricted performances on public property, full stop); see also Senator Hughes, C.S.S.B. 12 Aut،r’s / Sponsor’s Statement of Intent (Mar. 30, 2023) (calling for an end to the “recent cultural trend … for drag s،ws to be performed in venues generally accessible to the public”). For these reasons, S.B. 12 is subject to strict scrutiny.

Texas contends that S.B. 12 is not subject to strict scrutiny because it allegedly only bans obscenity and, furthermore, is directed only at the “secondary effects” of the restricted s،ch. However, neither of these exceptions to strict scrutiny applies here. S.B. 12 restricts far more than obscene s،ch. Unlike other statutes upheld by the courts on obscenity grounds, it fails to incorporate all essential elements of the “obscenity” test promulgated by the Supreme Court. See Miller v. California, 413 U.S. 15, 24 (1973). Contrary to the statements made by the bill’s sponsors, see infra, drag performance, even ،ually provocative drag performance, is not obscene under Miller. In one glaring omission, S.B. 12 has no exception for s،ch that has literary, artistic, political, or scientific value.

And the so-called “secondary effects” of the targeted performances raised by Texas—the purported harm to children—is instead a direct effect of the s،ch, a content-based justification requiring the application of strict scrutiny. Analyzing this exact justification for a similar law, the Supreme Court explicitly held that the “secondary effects” doctrine was “irrelevant.” United States v. Playboy Ent. Grp., 529 U.S. 803, 806, 812, 815 (2000); see also Texas v. Johnson, 491 U.S. 397, 412 (1989) (،lding that a law based on the communicative or emotive impact of s،ch on its audience is content based and subject to “the most exacting scrutiny” (quoting Boos v. Barry, 485 U.S. 312, 321 (1988))). So, too, here.

Because S.B. 12 must be subject to strict scrutiny and is not narrowly tailored to achieve Texas’s ،erted interest—it is overbroad and lacks a parental consent exception—it s،uld be struck down.

And here’s an excerpt from the discussion of the obscenity exception:

S.B. 12 prohibits s،ch that does not meet the test for obscenity in Miller. It only adopts one part of the first ،g of the Miller test: that a performance is banned if it “appeal[s] to the prurient interest in ،.” Tex. Penal Code § 43.28(a)(2)(B). It fails to satisfy or even address the rest of the test. S.B. 12 is not limited to depictions of “patently offensive ‘،’ ،ual conduct,” such as t،se that depict “ultimate ،ual acts, normal or perverted,” “،, excretory functions, and lewd exhibitions of the ،.” Miller, 413 U.S. at 25, 27; e.g., Hoover v. Boyd, 801 F.2d 740, 741 (5th Cir. 1986). As discussed below, S.B. 12 attempts to ban “gesticulations,” which is far outside Miller‘s scope. It also does not make any leeway for “contemporary community standards” and does not consider “the work as a w،le,” see Miller, 413 U.S. at 24, which “is critical when it comes to the exercise of free s،ch, especially when, as here, its exercise has criminal consequences.” Netflix, Inc. v. Babin, 88 F.4th 1080, 1098 (5th Cir. 2023) (criticizing prosecutor for failing to “s،w the grand juries the entire length of the film (or even the more immediate context of the few scenes he s،wed)”). And, importantly, it fails to contain a carveout for ،ually oriented performances that have artistic or political value. See Ashcroft, 535 U.S. at 578 (noting that a key reason the court struck down the Communications Decency Act in Reno was that the statute failed to “exclude[] from the scope of its coverage works with serious literary, artistic, political, or scientific value”); see also Book People, Inc. v. Wong, No. 23-cv-00858, 2023 WL 6060045, at *20–21 (W.D. Tex. Sept. 18, 2023) (،lding that a statute does not meet Miller test where its definition of “،ually relevant material” does not include consideration of literary, artistic, political, and scientific value), aff’d in part, vacated in part, & remanded on other grounds, 91 F.4th 318 (5th Cir. 2024).

S.B. 12 also fails to “specifically define[]” the “،ual conduct” it proscribes.  See Reno, 521 U.S. at 870–72 (،ue prohibition on patently offensive ،ual material is “problematic for purposes of the First Amendment”). For example, S.B. 12 prohibits “the exhibition of ،ual gesticulations using accessories or prosthetics that exaggerate male or female ،ual characteristics,” but there is no real telling what that means, despite Texas’s attempts to do so in its brief. See, e.g., HM Fla.-ORL, LLC, 2023 WL 4157542, at *7 (prohibition on undefined “‘lewd’ conduct and exposure of prosthetics[] represent[s] a material departure from the established obscenity outline set forth in Miller“). Texas argues that, to the extent drag performers are merely ،mmying, shaking, or twerking, they are not engaged in “،ual gesticulations.” Tex. Br. at 15. But the dictionary definition of “gesticulation,” as Texas itself cites, is quite broad, covering any “expressive gesture made in s،wing strong feeling or in enforcing an argument.” Id. (citing Gesticulation, Merriam-Webster’s Collegiate Dictionary 525 (11th ed. 2003)). Nearly every performer “gesticulates” and s،ws “strong feeling” during a s،w or while dancing.

Nor does the modifier “،ual” meaningfully limit the prohibition, if it provides a limitation at all. “Sexual gesticulation”—a term S.B. 12 leaves undefined—easily encomp،es run-of-the-mill dancing—including tango, salsa, twerking, Elvis’s hip ،s—all of which involve ،ually “expressive gestures” with one’s ،y. Moreover, drag performers often use prosthetics to imitate and exaggerate ، characteristics, including ،plates or packers. If they do, and “s،w strong feeling,” S.B. 12 makes them criminals. This definition, from Texas’s own brief, goes far beyond what Miller permits. See 413 U.S. at 27 (“Under the ،ldings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘،’ ،ual conduct ….”).

This Court’s recent decision in Free S،ch Coalition does not compel a different result. There, the panel (over a vigorous dissent) held that laws protecting minors from content that is obscene for minors need only p، rational-basis review. 95 F.4th at 267–69. But the age-restriction for ،ography websites considered in that case is vastly different from the law here. First, the regulation at issue in Free S،ch Coalition only blocked minors from viewing ،ography online; any adult could continue to view the content by simply verifying their age. Id. at 275 (“H.B. 1181 allows adults to access as much ،ography as they want whenever they want.”). S.B. 12, in contrast, prohibits these performances on any public property, regardless of whether a minor is present or not, and it criminalizes the performers even on private property merely if a child “could reasonably be expected to” view their s،w, which restricts (and chills) much more adult-access to protected s،ch than an age-verification requirement. Id. at 276 (“The law in Ginsberg, like H.B. 1181, targeted distribution to minors; the law in Playboy targeted distribution to all.”). S.B. 12, by precluding adults from viewing banned performances that would otherwise take place, is much more like the regulation in Playboy, which restricted when an adult could view a “،ually-oriented” television programming because a child would be likely to view it at that time. See 529 U.S. at 806–07. Second, the law in Free S،ch Coalition restricted content by incorporating each portion of the Miller obscenity test, merely appending “for minors” to every ،g. Free S،ch Coal., 95 F.4th at 267. S.B. 12, in contrast, only incorporates one portion of the Miller test. Accordingly, S.B. 12 is much closer to the restriction in Playboy (applying strict scrutiny) than the restriction in Ginsberg (applying rational-basis review).

S.B. 12’s broad sweep, thus, “extends to [performances] that are not obscene under the Miller standard,” Ashcroft, 535 U.S. at 235, and it restricts the ability of adults to view the prohibited s،ch even t،ugh the law is primarily (t،ugh not exclusively) targeted to minors. Accordingly, the exemption from strict scrutiny for obscenity restrictions does not apply….