Facebook's Secret Sauce

I would say there have been Three Ages of the Internet.

The first was the Internet era proper, where only the US government and universities (and maybe a few other organisations) had it. There was email of course, and really cool stuff like Archie and Gopher (whatever they were) that you could access on text-based terminals.

Then there was the Web, which was nice and graphical and coincidentally came out at roughly the same time as the extremely popular Windows 95. The Web through Windows made the Internet something for regular folks, not just geeks. There was surfing and search, pleasurable as well as useful. The Web soon gobbled up email too (webmail changed the user-facing protocol from SMTP and POP to HTTP). And blogs became a way for the little guy to communicate his own views to the world instead of just consuming the output of established media. That was the first step towards mass participation.

Then there came Facebook. More than Picasa and on par with Skype, Facebook has suddenly made the Internet a must-have for everyone. I'm betting Facebook and Skype have driven Internet usage to new highs, both in terms of bandwidth consumed and in terms of market penetration. And along the way, Facebook has sucked the oxygen out of blogs. Ask me. I should know.

That deserves the title of 'third generation Internet'.

Skype's appeal is easily understood. It's the videophone of science fiction that the Telco monopolies never gave us. (Thanks, guys.) But what is it with Facebook? If it's just a place where friends hang out and exchange news and funny stories, would it really have become all that big?

I've been thinking a lot about this, because I'm a latecomer to Facebook, having resisted it for a while. Now I find I'm thinking of it as 'Wastehook', an addictive way to spend time that I later regret. What made Facebook so addictive to a person who resisted it so much to start with?

Yes, it's cool that we can keep tabs on all the people we've ever known. But there's more to it than that.

I think the one thing of absolute genius that Facebook has pioneered is the 'friends of friends' concept. 'Friends of friends' gives you visibility just beyond the horizon of your circle of contacts. You get to know of people who are somewhat interesting because of the friends you share. Sometimes, they turn out to be people you know too! Bonus points for the thrill in such cases.

'Friends of friends' are people our friends like and trust, and since we like and trust our friends, their friends are people we're already favourably disposed towards. We don't mind reading the things they say. Sometimes, they say witty and wise things. Facebook is a lot more interesting because of these people. It's not just our boring and predictable friends. It's these people, unknown but not quite irrelevant, who bring a bit of variety to the experience. It's somewhat interesting when a friend puts up photos of themselves, but a lot more interesting to read what their friends have to say about it, even if we don't know many of them. We can join in the conversation and politely add to what they're saying, and nobody minds. A nice polite party with decent people we could be friends with. That's Facebook.

'Friends of friends' prevents Facebook from becoming a stale backwater, a stagnant pond, an eddy in a stream. It's not quite the wide blue ocean, though. It's just a safe little harbour. 'Friends of friends' expands our circle just enough to make Facebook an interesting place to hang out, but not so much that it becomes overwhelming or irrelevant.

I'd say that's Facebook's secret sauce.

[What about Google+? Well, Google+ pioneeered categories of friends, but Facebook quickly neutralised that advantage. An authoritative source informs me that Google+ has a rough equivalent to 'friends of friends' based on followers and following, so the effect could be similar. But my prize for pioneering the next generation of the Internet goes to Facebook in any case, not Google+.]

Friday is traditionally the day that the IPKat will remind readers of all the lovely events that grace the, aptly titled, forthcoming events page. For those in search of an IP conference or seminar fix over the coming months, or indeed just in search of a few quick CPD points, there is no better place!  Recently added events include the UCL IBIL Masterclass on Employee Inventions on 2 November, however there are plenty of others to suit any tastes.

Earlier in the week CoolBrands – which in its own words has “Since 2001 …been canvassing the opinions of experts and consumers to produce a barometer of Britain’s coolest brands, people and places” – produced its latest list of the top 20 coolest brands in the UK. Judged by a combination of expert panel [Merpel wonders if “expert of cool” is something that can appear on one’s CV] and public vote. What makes a brand cool, I hear you ask? Well, from a starting pool of 1500 brands, the final 20 were selected based on responses to their: style; innovation; originality; authenticity; desirability; and uniqueness [Aaah, the shifting sands of opinion-based research…]. The top 10, is as follows:

1. Aston Martin
2. Apple
3. Harley-Davidson
4. Rolex
5. Bang & Olufsen
6. BlackBerry
7. Google
8. Ferrari
9. Nike
10. YouTube

Just over a year ago, the IPKat reported on the activities of a company called Righthaven LLC, which was being widely proclaimed as the first of a new species: the Copyright Troll. Righthaven’s model of business was one of sub-contracted enforcement. Having no copyright of its own, the company extracted sums on behalf of clients that signed up to its services: rummaging through the cluttered contents of the web in search of potential infringers to bring to justice. Righthaven’s infamy has even caused a wikipedia entry (which, as everyone knows, is the true measure of fame/infamy and success/abject failure) to spring into being.

Whereas business was initially good, things soon started to unravel, and reports flooded onto the web earlier this month that Righthaven may be about to fall into bankruptcy following a costs order made against it. Adding to the company’s woes, earlier this week a Colorado District Court threw out Righthaven’s case against a Mr Leland Wolf, whom it had accused of infringing a Denver Post photograph by parodying it on his blog. [A copy of the Order is hosted by the Electronic Frontier Foundation here]. The Denver Post had provided Righthaven with a right to sue for infringement, but as Judge John L. Kane explained:
“A third-party who has been assigned the bare right to sue for infringement has no interest in the legal dissemination of the copyrighted material. On the contrary, that party derives its sole economic benefit by instituting claims of infringement, a course of action which necessarily limits public access to the copyrighted work.

This prioritizes economic benefit over public access, in direct contradiction to the constitutionally mandated equilibrium upon which copyright law is based.”
Accordingly, the Court threw out the case on the basis that Righthaven simply did not have the standing to bring an action. Potentially more importantly however, over 50 other that had been filed before the Court were stayed pending a motion to dismiss. Clearly more thought needs to go into some of the mechanics before Righthaven is able to franchise its model to the masses…

An olive branch at last?
What week would go by without more fun and frolics between those Behemoths of the electronics industy, Samsung and Apple? With legal proceedings flying left, right and centre, and claims and counterclaims bouncing off the walls of courts from the Netherlands to Australia, the IPKat was fearful that there would be no end to the litigation – a modern take on the story of Sisyphus, each company thinking that they have finally got the litigation stone to the top of the hill only to find it being pushed back down by the weight of another suit against it.

This week’s story is of a somewhat peculiar nature, as Bloomberg (amongst others) reports that “Samsung Electronics Co. made a proposal to Apple Inc. to resolve their patent dispute in Australia regarding touch-screen technology.” No details have yet been given about what treasures Samsung might have offered to placate its fruity rival, but according to Engadget “Stephen Burley [Apple’s lawyer], acknowledged that "[Samsung's] inconvenience would be diminished and we would be comforted" by an agreement.”

The saga continues...

A warming climate is imperiling the iconic wildlife and landscapes in the Yellowstone National Park region, two environmental groups said in a study.

The report, Greater Yellowstone in Peril: The Threats of Climate Disruption, by Rocky Mountain Climate Organization and Greater Yellowstone Coalition released on Tuesday shows temperatures in the past decade in the Yellowstone area have exceeded the rate of warming worldwide compared to the 20th Century average. The last decade was the greater Yellowstone region’s hottest on record.

The study’s findings show that temperatures over the past 10 years were 1.4 degrees above the region’s 20th century average. Summers, in particular, averaged 2.3 degrees higher than summers in the past century.

And if worldwide emissions of heat-trapping gases are not reduced, the warming will continue with disastrous effects, Stephen Saunders, president of the Rocky Mountain Climate Organization, said Tuesday. Left unchecked, climate change is likely to transform the greater Yellowstone area, which includes parts of Wyoming, Idaho and Montana and encompasses two national parks, six national forests and three wildlife refuges, the report said.

The 55-page study predicts that if we do nothing to stem greenhouse gases, within 60 to 90 years, summers in Yellowstone National Park could average 9.7 degrees higher than today’s temperatures. A temperature increase of that magnitude would “totally transform the ecosystem and the experience for people visiting Yellowstone National Park in the summer,” Saunders said.

The study is the first of its kind demonstrating global warming impacts on the Yellowstone region, including Yellowstone National Park, Grand Teton National Park and several designated national wildlife areas, its authors said.

Though the authors did not design new climate models for their study, they drew “the best of what’s already known” from a variety of larger studies, Saunders said.

The Greater Yellowstone Coalition is a conservation organization that works to protect the lands, waters and wildlife of the greater Yellowstone ecosystem. The Rocky Mountain Climate Organization is a nonprofit working to reduce climate disruption and its impact on the interior West. The Yellowstone National Park region is one of the world's last largely intact temperate ecosystems.

Warming in the area could increase the frequency and severity of wildfires, strip forests of moisture-dependent trees such as aspen, lower water in mountain streams with world-class trout fisheries and damage areas vital to threatened species such as grizzly bears, the study suggests.

"Threads are already being pulled out of the glorious tapestry that is the greater Yellowstone ecosystem and it has lost some of its luster," said Stephen Saunders, president of the Rocky Mountain Climate Organization and a lead author of the report. "It's up to us to preserve this marvelous, magical place for future generations."

Environmentalists say a worst-case projection shows summertime temperatures at Yellowstone National Park soaring by as much as 10 degrees Fahrenheit by 2099, according to an analysis in the report of government weather data and modeling by top climate scientists. "That would mean future summers as hot as the Los Angeles metropolitan area have been in recent years," Saunders said in a telephone news conference.

yellowstone wildlifeThe effects of climate change will be felt particularly by the region’s world-renowned wildlife (left), said Scott Christensen, GYC’s climate change program director and one of the study’s authors. Grizzly bears, pronghorn, big horn sheep and four native species of cutthroat trout are vulnerable to warming effects, he said.

Another concern is the loss of forests, which cover about 83 percent of the region, Saunders said, noting that the effects of climate change are already visible in the large-scale die-off of white bark pines due to an infestation of pine bark beetles. The beetles tree dieoffthrive in warmer weather and favor older trees that take 60 to 80 years to mature.

The sweltering summers and dry winters would be devastating to already ailing alpine trees such as whitebark pines, which produce nuts a mainstay in the diet of Yellowstone's grizzlies, and rare, snow-dependent animals such as the Canada lynx, said Saunders, former deputy assistant secretary for the U.S. Interior Department.

GYC hopes the study will provide science to guide the organization’s future decisions regarding Yellowstone Park GYC plans to look into reducing stressors for wildlife, attending to water quality and quantity, protecting wildlife migration corridors and developing academic resources.

The report, which relied on peer-reviewed research by government and university scientists, should serve as a wake-up call about the Yellowstone area, said Scott Christensen, climate director with the Montana-based Greater Yellowstone Coalition and co-author of the study.

Federal agencies can also play a role. The National Park Service has “a unique opportunity to capture the attention of American people” by adopting more sustainable practices and showcasing them to educate the throngs of park visitors each year, Saunders said.

And, the authors noted, the report’s predictions do not take into account any legislation designed to reduce emissions.

“Hopefully, we’ll be able to avoid the worst scenarios,” Christensen said. But it will take collaboration between wildlife services, nonprofits and private landowners, particularly as conditions change.

Failing to reverse the trend could damage the region's $700 million annual tourism economy, the authors added.

Reuters,"Climate change threatens Yellowstone region: report", accessed September 29, 2011
Bozeman Daily Chronicle,"Study: Yellowstone region records hottest decade ever, on pace for disastrous warming effects by the end of the century",by Jodi Hausen, accessed September 29, 2011
I think so.....

That step looks new to me.


5772 - 45

Via Goldberg:

"Man begins in dust and ends in dust.
He lays down his soul to bring home bread.
He is like a broken shard, like dried grass,
like a faded flower, like a breath of wind,
like whirling dust, like a dream that slips away."

from the U'Netaneh Tokef prayer

Happy New Year.
Shofar, sho good.

45 Days and A Wake Up
I think everyone in Australia is familiar with the song he was only 19.

I wrote about it here.

In a newsletter from my old unit (2RAR) there was a story that I found quite interesting, it was based on a newspaper article in the Adelaide paper in 2008....

Another walk in the Light Green

THIS Anzac Day it will be 36 years since the end of Australia's involvement its longest and most controversial war.
AS war flashbacks go there was none more powerful than February 16, 2008, a hot day near a military camp at Hoi My, only a few kilometres from the Australian Task Force base at Nui Dat in southern Vietnam.
Former combat field engineer Dave Sturmer chokes back tears as he relates the events of July 21, 1969.
It was the day man walked on the moon and the platoon commander of the Sixth Battalion's Alpha Company had just pulled back minesweeper Dave's headphones to tell him the news.
As Dave continued sweeping for mines on the sandy track, the lieutenant walked back to his Three Platoon headquarters in the bush - and trod on a M16 jumping jack mine.

It was a patch of earth Dave had not yet swept and the mine that jumped from the ground before it exploded, blew off the officer's leg and sent a hail of deadly fragments into the 30-man platoon.
Shaking with shock, Dave reached the stricken man - and others wounded - and tried to help.
It has taken months of planning and research to come to this place full of terrible memories. Now, with the assistance of an old engineer's map and GPS references, six vets and a very select group of Australian tourists stand on that square metre of ground that inspired the words to the famous John Schumann song I Was Only 19.
It was here Dave witnessed minutes of terror and courage where a radio operator (``Frankie'' in I Was Only 19), despite his wounds, called in the Dustoff evacuation chopper.
Dave now lies on his stomach while we all listen to his agonising recollection of watching his mates writhe in pain and the life slip away from the young lieutenant.
I'm already tearing up - it is one of the most emotive, challenging experiences of my post-war life.
Dave is struggling to relate the minutes after the first blast which, contrary to Schumann's song, was not triggered by young Frankie. One man is dead and 18 wounded.
With the Dustoff chopper comes the battalion doctor - who minutes later treads on another mine. Two are now dead and 23 are wounded.
DAVID Armstrong, a Melbourne adventure travel consultant who helped Dave Sturmer with the GPS references and access to the never-before-visited blast site, is filming the re-enactment.
Suddenly, as if on Hollywood cue, a dozen men in green uniforms, some wearing pith helmets, appear through the trees. They are Vietnamese Army soldiers, curious at this group of foreign civilians standing in the bushes on their patch of land.
I felt myself stiffen as they drew closer, their looks a mixture of curiosity, and suspicion. For a few minutes in a semi-circle around us, they whisper among themselves while Dave continues his story.
We have permission from the Local People's Committee to be here, but there is a palpable tension in the air. I don't want to look but I do and my eyes lock with one of the young ``former enemy'' and his expression is bemusement at the Aussie vet telling an old war story and the fact we should tramp through the bush to this nondescript patch of scrub. I've been hyperventilating for the past half hour - it was maybe a kilometre or two from this spot I was blown up by a mine in 1967 while on a tracking mission.
No way was I going back to that spot, even if I could find it.
The soldiers quietly inquire from our Vietnamese government official what's going on and they stand for several more minutes watching with little expression while an Aussie veteran tells a story, that quite possibly their fathers were part of, before they melt back into the bush.
Dave is now standing by himself and unashamedly crying, his personal odyssey is finished.
The Vietnamese official - whose eyes are also wet with tears - gives us the wind up and says we'd better leave. He declines our offer to lay a commemorative plaque on the site.
It's been more than a week now into the Vietnam visit and my vet mate Larry and I have climbed through the Long Hai hills, tramped the length and breadth of old Nui Dat and trekked out to Long Tan as part of an itinerary tailored to take vets to areas they want to revisit.

TOUR organisers obtained clearance to visit war sites and walk over private or restricted areas. It is through this special arrangement we are soon scrambling up a mountain track to the site of the famed helicopter crash where four men were killed in action in April 1971.
It also is the location where last year a forensic team, under the guidance of Jim Bourke's Operation Aussies Home team, recovered the remains of Lance-Cpl John Gillespie, who was killed and buried beneath the Dustoff chopper shot down by the enemy on the slopes of a steep ravine.
The blades of the crashing aircraft also killed my friend and former dog handler Tom Blackhurst. So, out of duty, I had to gasp and grunt with fellow vets up the hill track - ``a 20-minute walk'' said the guide.
After 30 minutes I was on my knees, gasping, with Larry asking, ``You OK, mate?''
We are now in what was called by the former enemy the Minh Dam Secret Zone. Two days before we had been up here among the massive rocks and boulders, staggering, wheezing and squeezing into old Viet Cong bunkers and tunnels.
Now we're at the chopper crash site and for half an hour we speak quietly, running our hands over the still visible evidence of boulders pockmarked by gunship bullets and rocket fire from 37 years ago.
While we're there our guide, a former Viet Cong, places two branches in the shape of a cross on the spot where Gillespie's remains were found.
I was also dry-mouthed because this was the incident I wrote about in my book Shockwave, told to me by gunship commander Norm Goodall on the fire support mission he called ``my white-knuckle day''.
It was another emotional moment of many on this extraordinary trip. But more was to come.
The following night Larry and I were tucking into a schnitzel at Vung Tau's Ned Kelly bar when I noticed two vets writing their names on the wall of fame in the restaurant.
I asked who they were. I was speechless - they identified themselves as Aussie RAAF vets Roy Zeger and Bob Stephens, crewmen and survivors from the actual chopper that was shot down. They also visited the site, just before our climb up the mountain. For a memorable half-hour they gave first-hand accounts of the tragedy.
At Nui Dat we spent nearly two days walking through the almost pristine rubber plantation, marking with GPS our old tent sites. Larry and I believe we identified the cracked, spider-infested old slab of concrete that was the kennel block for the tracking dogs in 1967.
In 1967-68 I had a kelpie-labrador-cross tracking dog called Caesar, one of 11 four-legged Diggers who, for their efforts, were pensioned off to Australians in Saigon when the war ended.
Nailing down the old kennel site was like finding a long-lost grave.
The Long Tan Trek, the main feature of the battle tour, begins at the former Delta Company 6RAR position in the rubber plantation at Nui Dat. Under the guidance of ex-5RAR infantryman Barry ``Barney'' Ruttle we adopt a patrol arrowhead formation, emulating D Coy's patrol of August 18, 1966.
Each of us also read out aloud original radio transmission transcripts from D Coy on that day.
Sweating buckets, we glide quietly through the rubber trees.
This place is hallowed ground: a four-hour battle took place here that saw 18 Diggers and 450 enemy killed and another Anzac legend born.
In the mottled shadows around the Long Tan Memorial a solitary Vietnamese goat herder is witness as we burn incense and whisper the Ode (any other form of commemoration is forbidden). The Long Tan Trek tour is two weeks of walking, staggering and grunting over old theatres of battle.
It is intensely emotional, at times exhausting but ultimately a fulfilling, even cathartic, experience.
I FOUND a real healing of war and remembrance that was due in no small way to the friendly gentleness of a new generation of Vietnamese - and the occasional old Viet Cong we met who was full of hugs and grins. Even the new military were open and friendly.
On the final day, back in Saigon, Larry teed up a hire car and driver for the day for $80 and we fought our way through a million motorcycles northwest to the town of Than Ouyen and the Fire Support Base Coral Battle site.
This was significant to my mate Larry who crouched in a hole on the first night's battle - a fight that went on for days and saw 23 Australians killed in May 1968.
We had left the official tour group and had no permission to go there. The local militia had a meltdown when we called in at their headquarters about 2km from Coral.
Our driver got an official dressing down, and we said sorry - then like two good vets stopped outside the village and walked through the rubber to the Coral site to get pictures. Vietnam, 40 years on, and old soldiers are coming back.
This is not a grand tour of Vietnam: it is specifically in the province - now called Baria-Vung Tau - where thousands of Australian combatants did their tour of duty.
Anyone on this sort of personal trip should be very conscious of protocols - no overt celebration or unruly boastful behaviour.
It also is vital to get the OK from the regional People's Committee before wandering into known battle areas, and respect must be shown for both sides involved in the conflict. Unlike Gallipoli, laying wreaths, plaques or memorabilia is not allowed.
It was TET when we arrived - for me strong memories of blood and thunder.

I spent my 60th birthday in a Saigon restaurant where our host, a gorgeous French Vietnamese woman named Rose, who also was hosting us at her French villa (a B&B at $28 a night), had arranged a 60-year-old Vietnamese rock singer to entertain this old Digger.
If I remember anything about that night it is Mr Ha and his Credence Clearwater Revival rendition: Wolling, Wolling, Wolling on the Wiver.
And the grand finale? Outside the Palace Hotel in central Saigon Larry called out, ``Peter, you'd better look at this''.
I caught my breath. Running up to me from a photo shop where his owner worked, was a seven-month old black kelpie-cross labrador. He playfully bit my hand and wagged his black bushy tail. Welcome back.
It was the great-great-great-grandson of a tracker dog named Caesar. True? Well, I've got the photos - and it's a great story to tell the kids.

Wet ya appetite?

Then get Peter Haran's book......

Delhi Metro has become the world's first railway network to earn carbon credits from the United Nations for helping cut greenhouse gas emissions. The transport system has helped reduce pollution levels in the city by 630,000 tons a year, a UN release said.

If not for the Metro, the 1.8 million people who use it daily would have traveled by cars, buses or motorbikes, adding to pollution, the UN release
added. It will now get $9.5m (£6.1m) in carbon credits annually for seven years. And as the number of passengers increase, so will this figure.

Carbon credits are generated by a UN-run scheme called the Clean Development Mechanism (CDM). The mechanism gives firms in developing countries financial incentives to cut greenhouse gas emissions.

This is the second CDM project of Delhi Metro to be registered with the UN body in the last three years. Metro's first CDM project was on regenerative braking - a technique for reducing power consumption.

"The United Nations body administering the clean development mechanism under the Kyoto
Protocol has certified that Delhi Metro has reduced emissions," the UN statement said.

"No other Metro in the world could get the carbon credit for the above because of the very stringent requirement to provide conclusive documentary proof of reduction in emissions," it added.

Every passenger who uses the Metro instead of cars or buses helps reduce greenhouse emissions by approximately 100gm of carbon-dioxide for every trip of 10km (6 miles) and that helps in reducing global warming, the UN said.

Delhi's hi-tech metro system was launched in 2002 (right). Parts of the network are underground while
some sections use elevated tracks. The system, which covers some of the city's most congested streets, is seen as the answer to Delhi's traffic chaos and has helped in lowering air pollution

Here in the sweaty heart of India’s northernmost megacity, the runaway success of the city’s almost complete subway system, known as the Metro, is a feat bordering on miraculous, and it offers new hope that India’s perpetually decrepit urban infrastructure can be dragged into the 21st century.

The Delhi Metro manages to defy just about every stereotype of urban India. It is scrupulously clean, impeccably maintained (left) and almost unfailingly punctual. Its cars are the latest models, complete with air-conditioning and even power outlets to let commuters charge their mobile phones and laptops. Its signaling and other safety technology is first rate, and the system is among the best in the world, urban transport experts say. Despite cheap fares, less than 20 cents for the shortest ride and about 67 cents for the longest, the system manages to turn an operating profit.

The metro system has had to deal with its social bumps too when women passengers complained
of sexual harassment by male passengers. As a resolution at least one carriage is reserved for women (right) on every metro train in the Indian capital, where female residents and tourists have complained about sexual harassment on public transport for decades.

Police on Saturday led a crackdown of men using women's carriages at a station in Gurgaon, a satellite development on the outskirts of Delhi, after a series of complaints. Women passengers joined in the police action. The offending male commuters were made to pay a fine of 250 rupees (£3.40) while angry women slapped some of them and forced them to do sit-ups on the metro platform.

The Gurgaon police commissioner who led the raid, said: "We found many male passengers in the women's coach. The moment the women saw us, they got the courage to teach the men a lesson. We want our young girls and women to feel confident and safe while travelling in the Metro (left)."

BBC News,"Delhi metro first railway to earn UN carbon credits", accessed September 27, 2011
MSN Green, "Delhi Metro gets UN certificate for reducing pollution", accessed September 27, 2011
The Telegraph "Men caught in 'women only' train carriage forced to do sit-ups", accessed September 28, 2011

Wednesday whimsies

An earlier draft -- or the current one?
Those Unified Patent Court proposals simply will not go away.  A new Draft agreement on a Unified Patent Court and draft Statute - Revised Presidency text, Brussels, was published on 2 September 2011. József Tálas (Sar & Partners, Hungary) and Steve Peers (Professor of Law, University of Essex) both kindly drew the attention of this Kat to its existence, but he was too busy writing about the old version (see Kat rant here) to get to grips with the new one.  You can peruse it for yourself here. Changes to the text have been underlined and explained, which makes life a little easier since the document is still 77 pages long.  While we're on the subject, EPLaw President Jochen Pagenberg has drawn this Kat's attention to an excellent, sincerely meant and constructive critique of the draft agreement which you can view here on PatLit along with some strongly supportive text.

The IPKat is waiting for
the book of the video of
the draft
The Unitary Patent won't go away either. From Gérald Sédrati-Dinet comes a video presentation in which he goes thoroughly through the issues raised by the proposed legislation on the unitary patent, stressing how important it is to draw carefully a good patent policy, pointing at drawbacks of the Commission's proposal and proposing some required amendments in order for the unitary patent to emerge speedily and safely from the drawing board into the harsh reality of modern Europe. You can access the video, which is less than 15 minutes long, here, or download it on Ogg Theora/Vorbis Free format -- oreven browse the slides at your own pace. Gérald would appreciate viewers' comments, of course.

A Google search for 'maple leaf'
and 'polar bear' retrieved this
piece of artwork
Lack of transparency of Court of Justice of the European Union proceedings is another of the Kat's favourite topics (see eg IPKat threatens European and Judicial Serenity" here), in which context he is pleased to draw to the attention of readers an email from the ever-relevant Professor Norman Siebrasse, who writes:

"It appears that the Supreme Court of Canada (SCC) is more serene than the CJEU, as all submissions are available online. Here is a link to the practice notice, here is a link to the SCC policy for access to records, and here is a link to the submissions in an upcoming copyright (fair dealing) case. Note that hearings are also webcast".
It's not as though the Court of Justice faces delicate political, social and economic issues while the SCC does not.  Perhaps we Europeans have some big lessons to learn from Canada about our institutions and how they relate to us.

Around the weblogs. Starting with PatLit, the robotic octopus saga of the PCC Pages has now entered its 39th episode, with further consideration of the conflict between privilege and documentary disclosure.  The Social Interface is in interesting contribution to the outer margins of IP/IT, being an interdisciplinary blog on the social implications of technology: it's driven by a team of Australians of whom two are in colour, the others in monochrome.  Emily Goodhand has produced a neat, punchy account of revolutionary developments at Princeton in the battle between academics and publishers for the heart and soul of the former's research product: you can read it on the 1709 Blog here.

Managerial research is devoting increasingly more time to the question of how IP is transmitted through, and processed by, a company. The questions raised are both of a positive and normative nature. Researchers both map out the manner in which IP is actually transmitted and processed within a company (e.g., is it primarily the purview of the corporate IP department or is it distributed across various departments?) and consider whether alternative arrangements might enhance the value of IP for the company (e.g., should there a a top management position of "chief Intellectual Property Officer?).

However, there does not seem to be the same degree of attention to the parallel question with respect to law firms, namely how is IP handled across departmental and type-of-practice (contentious versus non-contentious) lines? IP enjoys a special status within a law firm practice. On the one hand, it is not a basic tool of the legal trade, such as contract law, which is part of every lawyer's basic legal training and which is part of every lawyer's practice, no matter what his field. On the other hand, unlike a field such as tax law, IP is not sufficiently technical (patent drafting and prosecution being the exception) that a lawyer will eschew dealing with the subject if he or she is not a specialist in that field. It is a bold (and ultimately foolish) attorney who will deal with tax questions as opposed to seeking advice from a member of the firm's tax department. But what about IP matters?

Keeping in mind these two poles, IP seems to occupy a middle position. IP is not a core law school subject; some students take a course or two while others do not. Unlike contract law, therefore, it cannot be said that a familiarity with IP is part of the legal skill set of every freshly-minted law student. That said, there is a sense of accessibility to the subject-matter of IP (again, with patent matters perhaps being somewhat different) that comes from one's personal experience.

One encounters the subject-matter of copyright and trade marks every day; whether in print, online, over the airways or otherwise. We make numerous purchases each week based on the brand of the product; not only do we read, hear or watch copyright contents constantly but, as lawyers, we are ourselves creating copyright-protected contents. The subject-matter of IP are familiar and we are comfortable with them in our daily lives.

This all-pervasive familiarity with (at least) certain types of IP carries over to law practice. As such, it is difficult to argue that IP belongs (or should belong) to a high priesthood of practitioners authorized to dispense their wisdom on a need-to-know basis. Moreover, there is hardly any aspect of a law practice that does not find itself, sooner or later, with the need to deal with an IP matter. Unlike tax or environmental protection, IP questions arise constantly across a broad swathe of a firm's activities. And in that lies the rub: how exactly do, and should, these IP aspects be handled within a firm? A series of further questions arise:
1. Should the firm maintain a dedicated patent practice, being the one remaining vestige of the IP priesthood? If the answer is "no", then the issue becomes reasonably simple--to which patent boutique should the patent issue be referred?

2. Whether the answer is "yes" or "no", the next question becomes whether to support a separate dedicated "soft-IP group (namely trade marks and copyright) within the firm?

3. If the answer to 2 is "yes", the challenge is to delineate the fields of activity that are to be handled by the members of the group. Will they solely provide "IP support" to other departments, be the task a due diligence report, licensing agreement, or an employer-employee dispute, or will the firm's IP department also have its own areas of responsibility, separate and apart from its IP support activities?

4.If the answer to 2 is "no", the challenge is how provide the staff in the relevant departments within the firm with sufficient IP acumen so as to be able to provide a professionally responsible level of IP competency. A large law firm may be able to develop IP sub-specialists to address these needs, but perhaps at a cost of ignoring the training of personnel with a broader view of the IP landscape.

5. A smaller firm may not enjoy the sub-specialists IP option although, as noted, the circumstances of such a firm may in fact encourage the development of IP personnel with a broader view of the IP practice. Even so, there always remains the quandry of how to deal with the challenge of providing adequate specialization in such a context. Does the law firm "do the best it can", or does it seek to obtain IP specialist advice (from the dwindling number of IP boutiques) if needed?
Questions galore--any answers?
China plans to launch five Antarctic research expeditions and another three to the Arctic from 2011 to 2015, said an official with the Chinese Arctic and Antarctic Administration (CAA) on Sunday.

In a warming and changing Arctic, China is stepping up its activities in the Arctic Ocean Basin. While China’s interests and policy objectives in the Arctic Ocean Basin remain unclear, Beijing is increasingly active and vocal on the international stage on issues that concern the region. To that end, China is actively seeking to develop relationships with Arctic states and participate in Arctic multilateral organizations such as the Arctic Council. The region includes a rich basket of natural resources: The U.S. Geological Survey estimates that 25 percent of the world’s undiscovered hydrocarbon resources are found in the Arctic region along with 9 percent of the world’s coal along with other economically critical minerals.

With the world’s largest non-nuclear research icebreaker, Xue Long (Snow Dragon) China has embarked on four Arctic research expeditions in recent years into Arctic waters. This is part of China’s larger polar scientific research effort which has seen 26 expeditions in the Arctic and Antarctic since 1984. This past summer the vessel made it on a research voyage to 88 degrees North latitude which is only 120 nautical miles from the North Pole. Chinese research scientists from the fourth research expedition traveled to the North Pole via the vessel’s helicopter to conduct research, arriving at the North Pole on 15:38 p.m. (0738 GMT) Friday August 20, 2010 (China Daily, August 21, 2010). It was another first for China and clearly highlights a changing Arctic, which is seeing decreasing and thinning sea-ice year after year. A few years ago this would have been impossible with this ice-breaking research vessel because of the difficult sea-ice conditions and the thick multi-year ice.

Now China will launch the 28th Antarctic research expedition in early November and the fifth to the Arctic in early July 2012, said Qu Tanzhou, director of the CAA, at the annual seminar on China's polar region expedition and research in Shanghai.

In the 2011-2015 period, Chinese researchers will focus on monitoring the weather and environment changes in the polar regions, Qu said.

Qu said climate change in the polar region, particularly that in the Arctic, will inevitably influence China, and the research would benefit the nation's adaptation to climate change.

China plans to build a new icebreaker before 2015 (hopefully (2013), which will form an Arctic-Antarctic maritime research team with Xuelong ("Snow Dragon"), an icebreaker that operated in Antarctica, said Qin Weijia, head of the CAA's committee of the Communist Party of China.

Qin said the plan to build the new icebreaker has already been approved by the National Development and Reform Commission, the nation's top economic planner.

China will have two icebreakers concurrently operating at both the north and south poles, Qin said.

China Daily,"China to launch 8 Antarctic, Arctic expeditions", accessed September 27, 2011
Arctic Progress, "China's Snow Dragon Sweeps into Arctic Ocean", accessed September 27, 2011

Goofus and Gallant 2.0 : Etiquette for 2011

Back when life was simpler — which was the Eight Year's Peace between Korea (1953) and VietNam (1961) — there was a magazine found in doctor's offices called Highlights. One of the perennial features was "Goofus and Gallant", a simple depiction of two young boys that communicated universally accepted lessons in good behavior. For instance, the cartoon below contrasts two different versions of telephone (retro-landline) etiquette.

1961 Landline Etiquette with Goofus and Gallant

Legacy Goofus and Gallant Doesn't Work in 2011

As the political scene and public discourse veers into increasingly complex and divisive issues, many people who find themselves in ILP status are challenged to explain contemporary values to their co-associated youngsters.

The original Goofus and Gallant (aka G&G 1.0) content doesn't meet the needs of today's young consumers. In order to meet that need, the legacy G&G cartoons have been digitized and re-purposed as G&G 2.0 to teach more contemporary lessons.

2011: Goofus and Gallant 2.0 with the Robinsons

(Anachronistic clue to obscure Mrs. Robinson cultural reference here.)

Last Friday, while this Kat was at the LIDC Conference in Oxford, he was raging against the monstrous abuse of monopoly which resulted from the laws currently in place to protect the London Olympics and Paralympics in 2012 against anything that might be regarded as a whiff of competition.  Commenting on the (admittedly entertaining and well-presented) talk by the affable, unflappable Farisha Constable, LOCOG Brand Protection Manager, he said this:
"Usually when I, as a great enthusiast for IP rights, speak at a competition law conference, I feel like Daniel being thrown into the lions' den. However today, for once, I feel that I am on the side of the lions and that it is Farisha who is being thrown to them".   
By total coincidence, while the Kat was citing Daniel v Lions at the LIDC Conference, a whole group of Daniels was being cast to the lions the other end of Europe, in the lovely city of Warsaw.  The cause of this was the Academy of European Law's conference, The Future Unified Patent Litigation System in the European Union, "organised in the framework of the Polish EU Presidency of the EU Council" which was billed as providing
"... a platform for discussion on the new draft agreement on a Unified Patent Court presented by the Hungarian Presidency on 14 June 2011".
What, perchance was to be discussed on this platform? The programme explained:
"The objective of the conference is to analyse how issues raised by the Court of Justice of the European Union in its Opinion 1/09 on the previous version of the agreement regarding compatibility with EU law were addressed, as well as to promote an exchange of views between courts and practitioners on the functioning of the European Patent Court".
The event commanded an all-star line-up of speakers.  In case you were wondering, they were
  • Margot Fröhlinger, Director, DG Internal Market and Services, European Commission, Brussels
  • Dr Klaus Grabinski, Federal Supreme Court (Bundesgerichtshof) Karlsruhe
  • Professor Sir Robin Jacob, University College London 
  • Marcin Korolec, Undersecretary of State, Ministry of Economy, Warsaw
  • Eurico Marques dos Reis, Judge of the Court of Appeal, Lisbon
  • Kevin Mooney, Partner and Head of Intellectual Property, Simmons & Simmons, London
  • David Rosenberg, Industry Affairs Manager, Corporate IP Department, GlaxoSmithKline, Brentford
  • Thierry Sueur, Vice President, Intellectual Property and Vice President, European & International Affairs, Air Liquide (tbc)
  • Maciej Szpunar, Undersecretary of State, Ministry of Foreign Affairs, Warsaw
  • Professor Winfried Tilmann, Of Counsel, Hogan Lovells International, Dusseldorf
  • Vincent Tilman, Senior Advisor European Affairs, Eurochambres, Brussels
  • Robert van Peursem, Judge, The Hague District Court
  • Pierre Véron, Avocat, Véron&Associés, Paris
Unbeknownst to the cast, and to the 80 or so participants, there was also an envoy from the Republic of Katland, who sent back this report:
"The purpose of the conference, declared the Polish Minister opening proceedings, was to "look at the Court from the point of view of users - the Judges, lawyers and entrepreneurs". [Is 'entrepreneurs' a euphemism for 'litigants'? If so, the needs of plaintiffs -- who make the decision to go to court -- and defendants, who have little option to go when sued, may reflect different points of view. In any event, why are judges and lawyers listed ahead of the litigants? This reflects a poorly-focused mind-set, say Merpel] Unfortunately, this message had clearly not reached Winfried Tilmann who, speaking next, immediately informed the conference that "there was no political will in Council or in Parliament to re-open [the December 2009] package deal". He concluded with the dark warning that speakers should "resist the temptation to fight old battles". Plainly precisely nothing of consequence was up for discussion in his opinion, which begged the question: what actually was the point of the conference?

A succession of speakers then largely toed the Tilmann line. Unsurprisingly, perhaps, these were led by the German speakers such as Judge Klaus Grabinski. But French support too came from Thierry Sueur. While he sensibly urged that the Court be allowed to decide the language of proceedings, he implored Poland not to be afraid to push the Court agreement through, saying "let's not look for perfection" [Heaven forfend that one should even consider such a thing, adds Merpel. No-one really wants a perfect patent litigation system, do they?].

Then at last, (likening himself to Daniel entering the lions' den) Kevin Mooney pointed out a few of the fundamental flaws in the proposed arrangements, notably that no-one had explained how the Court was supposed to be funded, following withdrawal of the Commission's financial support (so central to the 2009 draft) consequent upon the ECJ's March 2011 opinion.

Following this lead, the touch-paper was well and truly lit by Judge Robert van Peursem, with a typically Dutch piece of plain speaking. Deeply critical of the proposals, he saw no reason to stick with the 2009 Council conclusions, saying it was not just a case of mending some details. He said that the "politicians should start to listen to the users" [If only! They scarcely listen even to one another ...]. Expressing strong support for the "excellent" British "Concerns of Principle" paper [on which click here] and the equivalent Swedish paper, he implored the Commission to "listen to those expert voices sincerely, not politely, or not at all". So strong was his condemnation of the proposals, that he declared that he "would seriously consider to decline to take part in this system as it stands", saying also that he spoke for the majority of his first instance colleagues.

Never a man to be outshone, Sir Robin Jacob described all amendments to the litigation proposals since the EPLA proposal as retrograde, and warned of the dangers of creating the "patent equivalent of the Euro". He said that if he were a user he would certainly opt out.
Noble support for the Daniel cause came next from David Rosenberg, who declared himself a wholehearted supporter of a unitary court, but only if it was better than the present system -- which this was not. He observed that it was important to get it right for innovation, not for politicians. It was not just a political project and if it had to take more time, so be it. This was not a case of following the advice of Macbeth (right) that " If it were done when 'tis done, then 'twere well It were done quickly": That, he pointed out, was said in relation to the killing of a king, whereas for this project, a more apt exhortation would be "when it is done, it should be done right".

So what did Margot Fröhlinger make of all this in her speech? Dishearteningly she said that some aspects of the agreement such as bifurcation and composition of panels "could not be improved". She was "surprised" at the criticism. This envoy from Katland was not alone in his surprise at her surprise. Robert van Peursem pointed out that he had made precisely the same observations at five different conferences [This just goes to show how foolish it is for members of the IP community to believe that their expertise and experience have any value in a world of convenience and expediency]. It was impossible to put any questions to Margot Fröhlinger, however, to ask her if having now heard these criticisms, she would listen, or whether she would follow the Tilmann line. Instead, the subsequent "debate" consisted mainly of a series of attacks on the Daniels by various of the faithful lions. Thierry Sueur described the dissenting speakers as "isolated" (a suggestion strongly rebutted by Robert van Peursem) and astonishingly responded to Sir Robin Jacob's plea not to "do a Euro" by describing the Euro as a "great success". This perhaps summed up the attitude of some: that criticism (no matter how constructive) is quite simply heretical to the political project that the unified court has become, and those heretics deserve to be thrown to the lions.

But it was not all doom and gloom for those who would like to see a good agreement, not just an agreement at any cost. Reassuringly, the German view was far from universally supportive. Speaking from the floor, having curiously been deprived of a speaker's platform, Jochen Pagenberg voiced support for more debate on the issues, including revisiting exclusivity in purely domestic disputes and suggested a transitional period of 15 years or more. Even Margot Fröhlinger appeared to concede that the transitional and opt-out arrangements could in fact be considered further.

Daniel waited patiently to be eaten while the lions debated the benefits of bifurcation and pondered as to whether they should dine alone, in pairs or in panels of three ... 
So what will the next steps be? Almost certainly some decisions will never be overturned. The bifurcated system is here to stay. So too is the panel system of permanent local panels of two local judges and one guest judge. This combination will almost certainly lead to forum-shopping among the divisions of the Court. But other issues may yet be revisited: the transitional arrangements in particular. If improvement here could be negotiated, together with a concession that the Central Division could be used by patentees commencing infringement cases, that would make a considerable difference. Let us hope that the political imperative to do a deal - any deal - does not in Sir Robin Jacob's words leave us in 15 years' time with a system which is more expensive than the present one. Whatever the outcome, however, the Daniels deserve a great deal of thanks for their efforts in Warsaw. The lions certainly know now, if they did not know it before, that they are in for a fight to reach a better agreement".
It seems quite a long time ago that this Kat confidently described intellectual property as the most recession-proof area of legal practice and, while he's sure he's right in principle, he can't say hand-on-heart that the facts are always as correct as the theory they're supposed to support.  Anyway, he hasn't been writing as much about IP and the R-word as perhaps he should have, so he's grateful to his respected friend Fredericka Argent for penning the piece below, which reflects on the effect of recession on the balance between original design, investment and playing safe by copying:

SuperGroup: Fashion, Recession and IP 
Times are tough in business, and none more so in the fashion industry. Newspaper pages are filled with tales of woe: high street stores suffering from declining sales, lack of consumer interest and, in a few cases, insolvency. However, some stores are managing to buck the trend. Those that do tend to be either low cost ‘fast fashion’ retailers or, at the other end of the spectrum, luxury designer brands. It is rare to find a mid-range high street store that is truly flourishing in these austere times. And yet, one such retailer can claim to be doing just that – the all-conquering Superdry. 
Superdry is the casual-wear label du jour. The brand is easily-spottable with its bright colours, contemporary designs and distinctive Japanese characters emblazoned on everything from T-shirts to rucksacks. It was set up in 2003 by the very un-Japanese-sounding Julian Dunkerton and, despite competition from similar style retailers on the market, such as Abercrombie & Fitch, Jack Wills and Uniqlo, to name a few, SuperGroup has recently revealed pre-tax profits of £50.2 million. Yet, even with success in the UK, Europe, the USA and Australia, SuperGroup is not complacent about the need to stand out amongst rivals in the highly competitive market for casual clothing. As such, it has adopted a tough approach to protecting its brand –- essentially, issuing legal notices to all those that seek to “copy” its designs. 
Cunningly disguised as cats,
Superdry bodyguards keep a
watchful eye out for unwanted
In 2009, The Times ran a story about Superdry’s approach to high street imitations: at a trade fair in Germany, the company employed two bodyguards to prevent unaccredited buyers from entering and photographing its clothing. SuperGroup claims – arguably sensibly – that it is cheaper to employ such methods than enter into legal battles. Overall, they spend around £1 million per year protecting their designs. Says Julian Dunkerton: “we are probably the most copied brand in the UK and these cases are becoming all too frequent... we are determined in protecting our intellectual property.” 
In January 2011, it was reported that SuperGroup was pursuing nearly 100 legal actions for breach of its copyrights or design rights. There have been some obvious infringers, such as ‘Superfly’ and ‘Silverdry’, makers of counterfeit Superdry products. But SuperGroup has been equally forceful about pursuing other, mainstream retailers who they believe have infringed either their copyrights or design rights in individual pieces of clothing. 
Some examples of recent cases: 
·         May 2009: The Guardian ran a piece covering SuperGroup’s allegations against Primark, accused of copying key features of Superdry’s famous leather jacket, ‘Brad’, as worn by David Beckham. A financial settlement for an undisclosed sum was agreed out of court and Primark agreed to stop producing the jacket. 
·         January 2011: The Telegraph reported that SuperGroup was awarded £45,000 in the High Court against a Lancashire fashion group, Rhodi, who it claimed had breached design rights in their range of Lumberjack-style hooded shirts. Rhodi did not file a defence and, following judgment in SuperGroup’s favour, they were ordered to cease and desist from selling the infringing shirts and surrender their stock. 
As recently reported by The Daily Mail, the latest focus of Superdry’s litigious attention is the Arcadia Group, owned by Sir Philip Green. One amongst this group is the store, Burton, which currently sells a ‘Navy Wool 2-in-1 Funnel Coat’ coat (right) that SuperGroup deems to be an infringement in the design rights of its ‘Jermyn Street’ trench coat. SuperGroup has issued a writ through DKH Retail Ltd, its subsidiary, against Arcadia Group, alleging ‘close similarities’ between the two competing coat. It claims that ‘various small and immaterial alterations’ have been made to Burton’s coat in an attempt to ‘avoid a charge of blatant copying’. SuperGroup is seeking damages from Arcadia Group as well as the destruction or delivery-up of the offending goods. 
Protecting the design 
Clothing has always been a tricky area when it comes to intellectual property protection, partly because fashion is so transient that the period of protection may outlive the clothing line itself. Designs in the UK can be protected by copyright and/or a design right. An unregistered design right, like copyright, arises automatically. Alternatively, a design may also be registered under UK or European Community law. 
Without access to the court documents, it is not possible to know the scope of protection around the Jermyn Street trench coat. It seems likely that as an international company, SuperGroup would choose protection as a registered design under the Community Design Regulation 6/2002. A design will be protected under this regime if it is ‘new’ and has ‘individual character’ (Article 4(1)). Registered design protection lasts for up to 25 years and would give SuperGroup the exclusive right to exploit their design and prevent unauthorised copying. 
Comments on the legal battle 
I am in two minds about SuperGroup’s case against Arcadia. On the one hand, I look at the two items in question and see a fairly generic men’s woollen coat, which could have been designed by any one of the many mainstream high street stores. I also wonder how ‘creative’ a designer can really be when designing a coat that has to look simple, serve a functional purpose and fit the average man. 
On the other hand, perhaps the reason why I, as a consumer, think that the coat is generic is because of the abundance of copycat men’s winter coats on the market. This would point to a fundamental lack of creativity in the retail industry at the moment and widespread and open counterfeiting. Certainly, this is something that Dids McDonald, CEO of ACID (Anti-Counterfeiting In Design) seems to think. Regarding the Superdry v Primark battle, Dids had this to say: 
The investment incentive is not there for some retailers do the design, research and development; instead retailers look at what’s selling – and it tends to be design-led companies that bring out the hottest stuff – take it, change it a bit and hope that’s OK.  To bring a product to market takes time, investment and creative skills.  There are a lot of companies out there that are free-riding on another’s designs as a fast track to market. It has to stop!” 
It is sad to think that this may be the case. The fashion industry contributes some £21 billion to the UK economy and this year’s London Fashion Week has shown how the UK breeds some world-class designing talent. For all designers – be it creators of high fashion clothing or those creating everyday wear for the big retail chains, intellectual property is one of their most important and valuable assets. Where this asset is threatened by rivals perhaps they should be encouraged to robustly defend their rights. 
However, it is important not to confuse counterfeiting with healthy competition which, from a consumer’s point of view, leads to choice in the market. A balance must be struck in the protection of design rights: counterfeiting – be it blatant or subtle – is unacceptable. It is with regret that I read reports, such as that by the UK’s IP Crime Group detailing the high levels of counterfeiting in clothing in the United Kingdom. But, equally, I would question whether all of SuperGroup’s claims against its rivals can be strictly justified. Are Burton’s designers lazily free-riding on the success of a popular Superdry coat, or is this simply a case of two designers creating similar but independent articles of clothing in response to consumer demands? Only time will tell how (or indeed, if) this question is answered. In the meantime, I’d be interested to hear readers’ thoughts on this matter.