First sunny day for a long while

So I decided to take Lenny and Susie down to the lake for a swim.......

....boy, the tide musta bin right out, no swim today, just a bit of a sniff here and there.....

....then abitofarun.....

....and finally a dip!

Followed by a shower.

Today I was riding my bike south along the Ohio River, a bit south of the Western Penitentiary, when something caught my eye and so I took this photo:

And while you may see nothing significant in it, to me something jumped out and I recalled a recent blogpost by Roger Ebert: Why Are We Cruel?

One of the several worthy topics Mr. Ebert addresses in his essay is a style of painting that presents the unusual within the context of all the activity surrounding any event, with the effect that it may be hard to focus on and identify the remarkable. One example he gives is the painting, Landscape with the Fall of Icarus. Mr Ebert writes:
This is a theme found in another famous Bruegel painting, "The Fall of Icarus," concerning the legend of the young man who built wings and attempted to fly. He flew too close to the sun, which melted the wax in his wings, and he fell to his death in the sea.

This painting is a vast land and sea scape in which the titular event is simply one detail in the busy rush of life--two legs disappearing into the ocean, easy not to see. Bruegel's technique is in reaction to the tradition of narrative painting where the subject is the focus of attention. His painting shows the full sweep of Fleming society, of people and animals going about their daily affairs, most of them unaware of the great event that is taking place.

You may not instantly notice Icarus falling into the sea - look in the bottom-right corner, or at the closeup on the right - and that's the point the artist is making. In general, remarkable moments are surrounded by (and may be obfuscated by) the swirl of the ordinary and routine around them.

When I read Ebert's description and studied the painting it struck me how much the noteworthy is surrounded by the commonplace, and how difficult it is to separate the signal from the noise. My own takeaway is that I should strive to see the remarkable amid the frequent, and that I should place my own excitements into the perspective of all that is happening around me.

And so this afternoon, on a pretty day with fall foliage, I took the picture (excerpt below)

because as soon as I saw this view, I saw the remarkable amidst the common.

Here's a closer photo, and now you may see what I saw:

I've been taught (by my betters) to recognize a DC-9 by the distinctive Douglas nose, at about that distance (even without the wings or empennage). That's no BAC-111 or MD88, that's a DC-9. I couldn't make out any registration markings on her. Here it is from a slightly different angle:

How did a plane get on a train? Why were the wings ripped off? Had the airplane - really an airframe now, bereft of wings, tail, engines - been abused and warped? Was it corroded or gutted by fire?

The DC9 fuselage that fit so well on a railroad brings to mind the story of the space shuttle boosters and the width of a chariot team: specifications and bureaucracies live forever.

To me, the plane on the train was the small flash of the remarkable in a picture of the routine, just like Icarus' leg when it was still slightly out of the water.

Thank you, Mr. Ebert (via Infy)

Maybe their speed limiters were not working this day.

For something that's supposed to be THE defining characteristic of REST, it could have done with better naming.

I would have been happy with the term HatEoAS if it had stood for "Hypermedia as the Envelope of Application State" rather than "Hypermedia as the Engine of Application State".

An Engine actively drives things. E.g., A process engine is well named, because it drives a process.

A constraint doesn't drive anything. It constrains. It provides an envelope around the range of possibilities.

And so they really should have called this an envelope rather than an engine of application state.

There, I've said it. Because the expansion of HatEoAS has been driving me up the wall.

Fortunately, it's being referred to as "Hypermedia Constraint" now, which is both more elegant and more accurate.

IP due diligence: real excitement --
or a good  way to hang on to clients?
What triggers that intoxicating feeling of raw excitement? We humans (and Kats) are all so different that the answer, quite honestly, is “to each, his own”. Some folk need something quite extreme to get that adrenalin coursing through their veins: bungee-jumping, vertical roller-coasters or feeling the 5G pull as you take a corner at the wheel of a Formula One machine. For others, it’s something quite internal: the frisson that chills the spine of the chess player as he spots the winning combination, the re-reading in sheer disbelief of the sequence of numbers of a lottery ticket which announces a massive jackpot; the shared intimacy of a special moment with a loved one.

Intellectual property lawyers and their clients likewise respond to different stimuli. For some it is the cut-and-thrust of infringement litigation; for others it is that moment when a favourable licence deal is clinched; for others again it is a brilliant and registrable solution to a branding problem or the realisation that years of apparently unproductive toil in the laboratory have resulted after all in an epoch-making, paradigm-shifting green-field patent. But there’s one thing that practically all IP practitioner enthusiasts agree: whatever makes them excited, it isn’t due diligence.

What then is due diligence that it should be so much more likely to congeal the blood than to quicken it? The subject certainly has something unromantic, unglamorous about it. Like warnings from well-meaning parents to be careful crossing the road, inscriptions on the back of tickets and receipts and like those little pieces of paper that are stuffed into pharmaceutical products that warn us about adverse reactions, due diligence is something that is necessary but generally ignored until it’s too late to do anything about it.

The IPKat thinks this is a dreadful shame and wants something to be done about it. For one thing, “due diligence” is a dull and stuffy name. Words ending in “-ence” are out of fashion anyway (“intelligence”, “prudence”, “providence”, "reticence" ...) and no-one ever contrasts it with “undue diligence”. Even “DD” would be better, or something altogether sexier like, … er, that’s probably a subject for another blog post.

You can do some of the easy bits of due
diligence online, checking registered rights --
but there's a lot more to learn ...
Next, let’s extol its virtues. With DD you can actually get a snapshot of your business that shows what’s hot and what’s not. Which IP rights are yours, which rights are you paying to use, and which are you infringing? Which of your rights are assets that generate cash or business, and which are liabilities that leech money out of your business through renewal fees in countries where they’re surplus to requirements? Which are no longer even fit for purpose, such as trade mark registrations for versions of a logo which has long since been redesigned?

The snapshot becomes even more useful if its subject isn’t your own business but someone else’s, which you may be acquiring, merging or synergising with by means of a joint venture to which both businesses are contributing IP. You want to make sure that you are getting the IP rights you’re paying for, or at least getting the use of them, and that the assets you may be thinking of selling off in order to finance the deal or make it more palatable to shareholders or competition authorities will be yours to sell.

Readers who (i) want to know more about how to take a business’s IP pulse, (ii) have a couple of free days in the middle of December to share with like-minded souls and (iii) enjoy a jolly good case study when they experience it may wish to give thought to IP Due Diligence, a two-day event which LexisNexis is running on Wednesday 14 and Thursday 15 December. Through an evolving case study involving the acquisition of a fictional medium-sized company which could very well be just like yours —or you competitor’s — the event’s course instructors plan to explore every aspect of a due diligence investigation. Their aim is not just to tackle all the obvious topics (spotting and valuing key IP assets, risk assessment and management, how to get the best out of life and retain one’s sanity while working in a dataroom) but also some of the more subtle ones that people can conveniently forget like attorney-client privilege, the correct protocol for using and communicating information resulting from the exercise and how to maximise your advantage, whichever side you’re on, when you play the warranty game.

Finnegans: a name long associated with the Bar ...
The composition of the team presenting this two-day event is almost as exciting as DD itself. For one thing, it’s Anglo-European, consisting of four kindly souls from Finnegans who have generously committed what might have been two quality shopping days in the run-up to Christmas to the whys and wherefores of DD. For another thing, the team members aren’t just backroom boys who thrive on non-contentious IP work in much the same way as house-mites thrive on minute particles of domestic dust: they have tasted the red meat of IP litigation. There’s a message here, says Merpel: it’s a bit like the old maxim of si vis pacem, para bellum (if you seek peace, prepare for war), so if you seek successful IP transactions, prepare for litigation. And what better way to do that than through DD?

IP Due Diligence: you can obtain full details of this event, the participating team and registration online here

LexisNexis has kindly reduced the registration fee for IPKat readers from £1,049 to £999 + VAT per participant if you book by Thursday 17 November 2011 and quote the Kat-code ‘IPKAT-BUTTERWORTHS’. It may not sound like much, but at today’s price it will buy you more than 5kg of turkey breasts at Tesco …
Update: the Decision, which was not yet available when this post was written, is now available here. And we Anglophones can rejoice for once as it's available in English.
A press release has issued from the Court of Justice of the EU (CJEU). The Court has this morning issued its decision in Brüstle v Greenpeace  (C-34/10). The IPKat reported earlier on the background to the referral, the referred questions,and then on the Advocate-General's Opinion.

Rather than repeat the questions verbatim (which you find in the links above), below you will find the IPKat's attempt to summarise the issues and then the questions and answers given by the Court. The technical explanation is given with all due apologies to those who are specialists in the field and who can tell a pluripotent stem cell apart from a totipotent one even when riding past at dusk on a galloping horse.

Background - the Directive
Good for what ails ya, like a patent medicine of old.
Stem cell research involves making use of embryonic cells. The Biotechnology Directive (98/44/EC) rules out patentability for certain inventions, including "uses of human embryos for industrial or commercial purposes". Given the ethical, moral, philosophical and religious differences of opinion on when human life can be said to begin, the legislators shied away from the politically loaded question of what exactly constitutes a human embryo, and left the term undefined. It was left to the Court to answer a series of questions on the meaning of "human embryo", therefore.

The referral came in a case where Greenpeace applied to revoke a patent held by Mr Brüstle, who had invented a way to produce, from embryonic stem cells, specialised cells for treating neurological diseases such as Parkinson's, starting with embryonic stem cells.

The early stages of development 
The IPKat has gathered that the very early development of a human embryo involves the following notable stages:
Top: development from fertilized egg to blastocyst
Bottom: illustrating how the pluripotent cells differentiate into organs

Illustration: Mike Jones
  1. The first few days after fertilisation: a few cells are present, each of which has the capacity to develop into a complete human being. Each cell has within it the full capacity for subsequent division, then for specialisation, which will ultimately lead to the birth of a human being. These cells are known as "totipotent cells".
  2. About five days after fertilisation: as growth continues, the cells develop into a ball called a blastocyst, composed not of totipotent cells, but of "pluripotent cells", which mark the start of diversification, gradually developing into specialised cells forming organs and structures of the body. These cells no longer have the individual ability to develop into a human being alone. They are the stem cells from which Mr Brüstle worked. Removal of these stem cells may damage or destroy the blastocyst, presumably depending on how this is done.
  3. About 72 hours later, implantation into the uterus occurs, which has been argued as marking an important milestone in whether or not pregnancy is likely to continue successfully.
Totipotent cells can also be produced artificially using cloning methods, such as the process which resulted in Dolly the sheep, i.e. transferring the nucleus of a mature human cell into an unfertilised ovum, or by parthenogenesis, i.e. stimulating an unfertilised ovum to begin dividing and developing.

Question 1: What is meant by "human embryo" within the context of the Directive?
The first question posed to the Court asked for a definition of what the term "human embryo" covered: did it include the ovum from initial fertilisation or was some later stage of development required? It also sought clarification on whether it included cells produced by the artificial methods, and specifically asked about whether the term covered pluripotent stem cells removed from the blastocyst.

The Court pointed out that firstly that it was not called upon to broach questions of a medical or ethical nature, but must restrict itself to a legal interpretation of the relevant provisions of the Directive.

Because the legislature intended to exclude any possibility of patentability where respect for human dignity could be affected, it follows, in the view of the Court, that the concept of ‘human embryo’ must be understood in a wide sense. Accordingly, the Court considers that any human ovum must, as soon as fertilised, be regarded as a "human embryo" if that fertilisation is such as to commence the process of development of a human being. The term "human embryo" also covers those artificially stimulated or manipulated (but unfertilised) cells which are capable of commencing the process of development of a human being.

As regards pluripotent stem cells obtained from a human embryo at the blastocyst stage, – those which are concerned by the invention covered in Mr Brüstle’s patent – the Court found that it is for the referring court to ascertain, in the light of scientific developments, whether they are capable of commencing the process of development of a human being and, therefore, are included within the concept of ‘human embryo’.

This last point is perhaps mildly surprising, if only because the Advocate General had gone further in his Opinion to the Court: he had advocated that pluripotent embryonic stem cells not be regarded as "human embryos" because they do not in themselves have the capacity to develop into a human being, but that inventions relating to pluripotent stem cells can be patentable only if they are not obtained to the detriment of an embryo, whether its destruction or its modification.

Question 2: What was meant by the expression 'uses of human embryos for industrial or commercial purposes'.
This question focused on whether there was a distinction between using embryos for scientific research and using them in a purely commercial process.

The Court has held that the use of human embryos for purposes of scientific research which is the subject-matter of a patent application cannot be distinguished from industrial and commercial use and cannot therefore avoid exclusion from patentability. Consequently, the Court concludes that scientific research entailing the use of human embryos cannot access the protection of patent law.

There is one qualification, however, which is based on a Recital in the Directive. The patentability of uses of human embryos for industrial or commercial purposes is not prohibited under the Directive where it concerns the use for therapeutic or diagnostic purposes which are applied to the human embryo and which are useful to it – for example to correct a malformation and improve the chances of life.

Question 3: Patentability where the patent is silent on using human embryos but they are nevertheless required
The situation addressed in this question is where, for example in producing Mr Brüstle's neurological precursor cells, the patent does not mention the use of human embryos in its teaching, but there is a supposition that firstly, stem cells are obtained from a human embryo at the blastocyst stage and, secondly, that the removal of a stem cell entails the destruction of that embryo.

Because not excluding such an invention from patentability would allow a patent applicant to avoid the non-patentability by skillful drafting of the claim, the Court has held that an invention is excluded from patentability where the implementation of the process requires either the prior destruction of human embryos or their prior use as base material, even if, in the patent application, the description of that process, as in the Brüstle case, does not refer to the use of human embryos.

The Court's Decision will perhaps disappoint those Member States which sought to leave it to individual countries to decide on the definition of "human embryo", or those who wished for a more liberal regime (such as requiring implantation as a precondition for a human embryo to exist).

However, there is no real surprise here, given that the Advocate General's Opinion has largely been followed, although the Court declined to state as a general rule that pluripotent cells are not regarded as human embryos. In order not to be regarded as a human embryo, a cell (or collection of cells) must not be capable of subsequent development into a human being.

The IPKat leaves it to readers to decide whether the patenting regime which will result from this ruling is a good one. No doubt opinions will vary ...
"Plenty of Fish" and "Plenty More Fish" - these are fundamental principles which the IPKat has long cherished. So the IPKat was intensely gratified to see that no less an august person than HHJ Colin Birss had finally given judicial consideration to these delicious twin subjects.

"I'd eat it," says the IPKat, "not date it."
The IPKat's inevitable disappointment, on discovering that the Judge's latest decision (Plentyoffish v Plenty More) was not in fact about piscine delicacies, was somewhat tempered by the fact that it was a decision about passing off - a subject the IPKat finds almost equally fascinating. And the judgment does contain a picture of a fish (right).

The question Judge Birss had to determine, sitting as a judge of the High Court, was this: in order to demonstrate goodwill in the UK as a prerequisite for a passing off action, is it necessary that the business actually has customers in the UK?

The PLENTYMOREFISH logo shown above was registered by Plenty More LLP as a trade mark in respect of dating services. Plentyoffish Media Inc. applied to invalidate this registration on the ground that use of the mark would be liable to constitute passing off (s.5(4) of the Trade Marks Act 1994 or Art. 8(4) of the CTM Regulation).

Plentyoffish contended that it had goodwill in the sign "Plenty of Fish" (and "plentyoffish" and "", the latter being the domain of their dating website), and claimed that use of the PLENTYMOREFISH mark would constitute passing off. Plenty More's case was that Plentyoffish had no customers in the UK, and therefore could not demonstrate the goodwill necessary as an essential element for a passing off action.

Plentyoffish lost before the Trade Marks Registry despite providing evidence that its website,, had the second-highest number of UK visitors among dating websites and was in the top 150 of all websites in terms of UK visitors - a figure of 4 million UK visitors to the site being suggested in evidence. However, in spite of these impressive numbers, it failed to submit any evidence that it had even a single UK subscriber for its dating services.The Hearing Officer, Mr Landau, noted that while it would have been a trivial matter for Plentyoffish to prove the existence of a UK customer base in evidence, if such customers existed, it had signally failed to provide any such evidence, a fact described as "startling, taking into account the nature of the claims and the nature of the business". It appeared also (and this was not apparently refuted), that at the relevant date it was not even possible for a UK visitor to the site to join and avail of the dating services.

On appeal, HHJ Birss reviewed the case law on passing off, in particular the line of authorities dealing with foreign businesses not trading in the UK but having some reputation with the UK public, beginning with the Crazy Horse case, through Pete Waterman and Budweiser/Budvar right up to the 2010 decision of Lloyd LJ for the Court of Appeal in Hotel Cipriani v Cipriani (Grosvenor Street).

In Hotel Cipriani, Lloyd LJ had reviewed the line of authorities and concluded that "an undertaking which seeks to establish goodwill in relation to a mark for goods cannot do so, however great may be the reputation of his mark in the UK, unless it has customers among the general public in the UK for those products."

Michael Edenborough QC, counsel for Plentyoffish, gamely argued that the Court of Appeal in Hotel Cipriani was "just wrong" in requiring UK customers as a necessary precondition for goodwill in the UK, and claimed that the reasoning employed by Lloyd LJ was flawed, in particular because the analysis of the Budweiser/Budvar decision did not support the conclusions reached. HHJ Birss not only found that Hotel Cipriani was binding on him, but also offered the view that its reasoning was in fact correct. HHJ Birss concluded therefore that:
"a reputation in the UK is not sufficient, customers in the UK are required and that is so whether the business provides products or services."

Plentyoffish also relied on a 1980 High Court decision, BBC v Talbot, which (it was argued) flatly contradicted the proposition that UK customers were necessary for UK goodwill to exist. In that case, the BBC was found to have goodwill in respect of the brand for a product which had not yet been released but which had been advertised widely. However, HHJ Birss agreed with Fiona Clark (for Plenty More) that the BBC case involved a different pattern of facts from the Hotel Cipriani line of case law: it was not concerned with assessing goodwill in a scenario where there was no UK business at all, but instead dealt with a long-established UK business claiming goodwill in an advertised product before its actual release date.

Finally, Plentyoffish argued, rather inventively, that because its website and dating service is free to use and makes its money from exposing viewers to advertisements, the UK customers who viewed these ads earned money for the business and thus could be regarded as customers "in an extended sense". While the argument may have been novel, it did not succeed. HHJ Birss went back to basics by focusing on what this case was actually about - a trade mark for dating services:
"It seems to me that for a member of the public to be a customer, no matter how far that concept is stretched, there still has to be some provision of the services in question. The Appellant is not seeking to invalidate a trade mark registered for advertising services nor is the Appellant claiming a goodwill or reputation in advertising. This case is about dating services. The Appellant's problem is that it has not shown that it provided any dating services to anyone in the UK on or before April 2007. "
Because no goodwill was established at the date of filing of the PLENTYMOREFISH trade mark application in April 2007, a subsidiary point on whether this was indeed the relevant date for establishing goodwill (or whether it had to be established as of an earlier date) did not need to be decided.

Plenty more fish here
Cat speed dating here
Dating for cat lovers here