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<title>Mateo RSS Feed</title><link>http://www.mateoaboy.com/index.html</link><description>Blog&#x21;</description><dc:language>en</dc:language><dc:creator>mateoaboy@ieee.org</dc:creator><dc:rights>Copyright 2006 Mateo Aboy</dc:rights><dc:date>2012-06-09T09:32:43-07:00</dc:date><admin:generatorAgent rdf:resource="http://www.realmacsoftware.com/" />
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<lastBuildDate>Sat, 9 Jun 2012 09:59:26 -0700</lastBuildDate><item><title>Part 5 - Exclusion of Liability for Misrepresentation</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:32:43-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/25d264a74ef71aa40d2349271e00d9ba-104.html#unique-entry-id-104</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/25d264a74ef71aa40d2349271e00d9ba-104.html#unique-entry-id-104</guid><content:encoded><![CDATA[Below are a few relevant principles and leading cases regarding the exclusion of liability for misrepresentation:


S Pearons v Dublin Corporation: It is not possible to exclude liability for fraudulent misrepresentation. 


Walker v Boyle: The exclusion clause will only be effective if the party seeking to rely on it can prove the clause was reasonable (MA1967 s(2), UCTA 1977).


Inntrepreneur Pub Co v East Crown: `Entire Agreement' clauses fall within the scope of s.3 as far as liability for misrepresentation is concerned (i.e., such term has no effect except in so far it satisfies the reasonableness as stated in section 11(1) of the UCTA 1997). ]]></content:encoded></item><item><title>Part 4 - Remedies for Misrepresentation</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:30:31-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/da9b2f96b2b18073bbe37df2a6e581cb-103.html#unique-entry-id-103</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/da9b2f96b2b18073bbe37df2a6e581cb-103.html#unique-entry-id-103</guid><content:encoded><![CDATA[Below are a few relevant principles and leading cases regarding the remedies for misrepresentation:


Car & Universal Finance Co Ltd v Caldwell: Rescission is, in principle, available to all types of misrepresentation by notifying the other party or taking some other reasonable action to indicate the intention to rescind (e.g., contacting the police, applying to the courts for a formal order to recision).   A formal order of rescission provides that any property exchanged under the contract reverts to its original owner. 


Whittington v Seale-Hayne: Payment of money known as an indemnity designed to put the parties back to their former positions with regards to obligations necessarily created by the contract (i.e., it is a restitutionary claim).   Note an indemnity payment is different and separate from damages. 


Doyle v Olby: In the case of fraudulent misrepresentation the party must be compensated (damages) for `all the actual damage directly flowing from the fraudulent inducement' (i.e., it does not matter that the loss was not foreseeable, only that the misrepresentation caused the loss). 


Royscot Trust Ltd v Rogerson: Damages under s.2(1) should be calculated in the same way as if the statement was made fraudulently (i.e., all looses are recoverable, not simply those that were reasonably foreseeable as it would be the case for negligent mis-statement under Hedley Bryne. 
]]></content:encoded></item><item><title>Part 3 - Types of Misrepresentation</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:28:30-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/7be209d739c7e5e120569e7d052783b5-102.html#unique-entry-id-102</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/7be209d739c7e5e120569e7d052783b5-102.html#unique-entry-id-102</guid><content:encoded><![CDATA[Below are a few relevant principles and leading cases regarding the types of misrepresentation:


Derry v Peek: Fraudulent misrepresentation is a false statement that is made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly as to whether it be true of false.   Fraudulent misrepresentation, in addition to being a ground on which a contract may be rescinded, constitutes the tort of deceit.   The burden of proof is on the claimant.


  


Hedley Byrne v Heller: Negligent misrepresentation at common law is available where the maker of the statement and the party relying on it are in a `special relationship' requiring a `duty of care' and the maker of the statement acts in breach of this duty.   The burden of proof is on the claimant.   The representation may be made by a third party who is not a party to the contract. 


Howard Marine v Odgen: Statutory misrepresentation is available where the maker of the statement has no reasonable grounds for believing it to be true (S.2(1) Misrepresentation Act 1976).   The burden of proof is on the defendant to show that the misrepresentation was not made fraudulently by proving ``that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true".   The party making the misrepresentation bears a heavy burden of proof under s.2(1).   The burden of proof for the claimant is that a misrepresentation was made and that it induced the contract. 


Whittington v Seale-Hayne: Representation that is neither fraudulent nor negligent is innocent misrepresentation.
]]></content:encoded></item><item><title>Part 2- Actionable Misrepresentation</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:26:34-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/1641b78627fc29d213bc9286b1567dd3-101.html#unique-entry-id-101</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/1641b78627fc29d213bc9286b1567dd3-101.html#unique-entry-id-101</guid><content:encoded><![CDATA[Below are a few relevant principles and leading cases regarding actionable misrepresentation:


Bisset v Wilkinson: In general, for a misrepresentation to be actionable it must be a false statement of past or existing fact which is material and induces the contract. 


Edgington v Fitzmaurice: A statement of intention or a statement of opinion (i.e., a statement of what a person is thinking) can be considered a statement of fact, and it if is false it can amount to a misrepresentation. 


Redgrave v Hurd: In order for the misrepresentation to be actionable, it must induce the party  to enter into the contract.   The misrepresentation does not need to be the only reason why the innocent party entered the contract (Edginton). 


Spice Girlds Ltd v Aprilia World Service: Conduct can be treated as implicitly making a statement that if untrue may be a misrepresentation.


 Dimmock v Hallet: A statement which is literally true may be treated as a misrepresentation if relevant information to the statement is not disclosed (e.g., the literal statement will be no longer true by the time the contract is executed or shortly afterwards). 


Lambert V Co-operative Insurance Society: There are certain contracts (e.g., insurance) that require uberrimae fidei (the utmost good faith).   In such contacts silence (i.e., failure to disclose relevant information even if not asked for) may amount to a misrepresentation. ]]></content:encoded></item><item><title>Part 1 - Review of Case Law on Misrepresentation</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:24:44-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/509a47361f2e179177bb5806e7459e59-100.html#unique-entry-id-100</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/509a47361f2e179177bb5806e7459e59-100.html#unique-entry-id-100</guid><content:encoded><![CDATA[The next series of posts are intended as a summary that includes relevant legal principles derived from the English case law dealing with pre-contractual statements and their effect on a subsequent contract.   In particular, the summary is concerned with false statements of existing fact that induce a party to enter into a contract.   Such statements may amount to actionable misrepresentations.   The principal remedies for actionable misrepresentation are rescission and damages.   The full-text transcript of the cases is freely available at http://www.bailii.org.]]></content:encoded></item><item><title>Part 5 - Consideration and Promissory Estoppel</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:20:24-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/24cd2f437317fddede4f0d8c0fb09155-99.html#unique-entry-id-99</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/24cd2f437317fddede4f0d8c0fb09155-99.html#unique-entry-id-99</guid><content:encoded><![CDATA[Below are a few relevant principles and leading cases regarding promissory estoppel:


Central London Property Trust Ltd v High Trees House Ltd: Under the equitable doctrine of promissory estoppel, a contracting party who -without duress- promises not to enforce a contractual right will not be able to enforce that right later if the promisee has been relied upon by the other party.   Estoppel allows promises to accept a modified performance of a contract to be binding in the absence of consideration.   Lord Denning stated ``a promise intended to be binding, intended to be acted on, and in fact acted on, is binding so far as its terms properly apply".


Combe v Combe: Promissory estoppel is `a shield and not a sword' and cannot be used to create entirely new rights or extend the scope of existing ones, only to prevent the enforcement of rights already held. 


Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd: Whereas a contract modification which is supported by consideration will generally have permanent effect (lasting for the duration of the contract), the same is not necessarily true for promissory estoppel (it can be limited to a particular time period and future rights are not destroyed). ]]></content:encoded></item><item><title>Part 4 - Consideration and Performance of an Existing Duty</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:17:35-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/be9debe290ff9580bb8e5ba95217e33e-98.html#unique-entry-id-98</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/be9debe290ff9580bb8e5ba95217e33e-98.html#unique-entry-id-98</guid><content:encoded><![CDATA[Below are a few relevant principles and leading cases regarding past consideration:


Stilk v Myrick: Performance of an existing contractual duty owned to a promisor is not normally consideration.   (Increasing Pact)


Pinnel's Case: A debtor offer to pay a reduced sum back to the lender in full and final settlement will only be sufficient consideration if the lender 1) agrees to accept it without duress, and 2) the debtor provides some extract element that can be treated as consideration (e.g., paying early, paying using a more convenient mode of payment).   Without something extra, part payment of an existing debt on or after the date for the payment will never provide consideration for a promise to forgo the balance.   (Decreasing pact)


Glassbrook Brothers v Glasmorgan County Council: Where the promisee is under a public duty but does something which goes beyond what is required by the existing obligation (duty), then the promises of payment will be enforceable (i.e., the extra act can amount to consideration). 


Williams v Roffey: If one party's promisee to perform an existing contractual duty to deliver good or services owned to a promisor confers an additional practical benefit and no duress is involved, the promisee will be sufficient consideration to make a promise given in return of the ``practical benefit" binding.   (Increasing pact)


Re Selectmove Ltd: The Williams v Roffey practical benefit is not sufficient for promises for the part-payment of a debt.   (Decreasing pact)]]></content:encoded></item><item><title>Part 3 - Past Consideration</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:15:06-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/8aadc8148fba017d22d16657cacd879d-97.html#unique-entry-id-97</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/8aadc8148fba017d22d16657cacd879d-97.html#unique-entry-id-97</guid><content:encoded><![CDATA[Below are a few relevant principles and leading cases regarding past consideration:


Roscorla v Thomas: Consideration must be given in return for the specific promise of the other party (i.e., it can not be past, an unrelated promise not in connection with the specific bargain, or a promise given only when the alleged consideration had been completed is generally unenforceable).


Pao On v Lau You Long: A promise to perform an existing obligation can constitute good consideration in certain cases.   The circumstances in which a promise made after the acts can constitute consideration are derived from Lampleight V Braithwait and Re Casey's Patents.


Lampleigh v Braithwait: Past consideration is sufficient when it is provided at the request of the promissor.


Re Casey's Patents: The parties must have understood that the work was to be paid for in some way either by money or some other benefit. 
]]></content:encoded></item><item><title>Part 2 - Consideration and Sufficiency</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:13:15-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/96f73024f17cc2c078839deaae7dbb51-96.html#unique-entry-id-96</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/96f73024f17cc2c078839deaae7dbb51-96.html#unique-entry-id-96</guid><content:encoded><![CDATA[Below are the most relevant principles and leading cases regarding consideration and sufficiency:


Dunlop v Selfridge: The claimant must show that he or she has bought the defendant's promises, by doing, giving, or promising something in return for it (i.e., a promise not supported by consideration -a gratuitous promise- is not enforceable in law). 


Thomas v Thomas: Consideration must be sufficient but not be adequate.   The courts are not generally interested in whether there is a match in value between what is being offered by each contracting party. 


 White v Bluett: Consideration will not be sufficient if it has not economic value. 
]]></content:encoded></item><item><title>Part 1- Review of Case law on Consideration</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-09T09:11:55-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/0a0d7bc07af914c4a705c96b73f8270f-95.html#unique-entry-id-95</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/0a0d7bc07af914c4a705c96b73f8270f-95.html#unique-entry-id-95</guid><content:encoded><![CDATA[The next series of posts are intended as a summary that includes the most relevant legal principles derived from the English case law dealing with the contractual formative requirement of consideration and promissory estoppel.   In particular, the summary is concerned with the concepts of sufficiency, past consideration, consideration in cases involving performance of an existing duty, and the equitable doctrine of promissory estoppel.   The full-text transcript of the cases is freely available at http://www.bailii.org.]]></content:encoded></item><item><title>Part 4 - Acceptance</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-08T20:09:15-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/4a7c38ec475a0ff104b94fa4e536725e-94.html#unique-entry-id-94</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/4a7c38ec475a0ff104b94fa4e536725e-94.html#unique-entry-id-94</guid><content:encoded><![CDATA[Below are the most relevant principles and leading cases regarding &ldquo;Acceptance:&rdquo;


Felthouse v Bindley: Acceptance cannot not be made through silence.   Acceptance needs to be communicated. 


Tinn v Hoffman: Acceptance must be unconditional (acceptance of all the terms in the offer -i.e., mirror image of the offer). 


Butler Machine Tool Ltd v Ex-Cell-O Corp Ltd & Tekdata Ltd v Amphenol Ltd: When contracting on standard terms resulting in a ``battle of the forms" the ``last shot" wins the battle. 


Manchester Diocesan Council for Education v Commercial and General Investments: Offer can be accepted by any method no less convenient to the offeror than the acceptance method stipulated unless the offer clearly indicates that such method is the only possible method acceptable. 


Entores Ltd v Miles Far East Corporation: Acceptance must be communicated (i.e., in bilateral contracts the offeror must have knowledge of the acceptance except of a few exceptions listed below). 


Adams v Lindsell: An acceptance by postal mail takes effect when it is posted (and not when it is communicated). 


Household Fire Insurance v Grant: An acceptance by postal mail takes effect when it is posted (and not when it is communicated).


Holwell Securities Ltd v Hughes: Offeror may avoid the postal rules by making a term of the offer that actual communication of the acceptance to the offeror is required (i.e., actual notice).   The case also indicates the reservations of the courts to extend the applicability of the postal acceptance rule to other modern forms of communication. 


	


The Brimnes & Brinkibon v Stahag Stahl GmbH: Acceptance is effective when as soon as it is received by telex during normal business hours even if the offeror does not read the communication.   The courts refused to apply the postal acceptance rule to these forms of modern communication. ]]></content:encoded></item><item><title>Part 3 - Termination of Offers</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-08T20:07:59-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/8e721af823f620febb590844d9bb117a-93.html#unique-entry-id-93</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/8e721af823f620febb590844d9bb117a-93.html#unique-entry-id-93</guid><content:encoded><![CDATA[Below are the most relevant principles and leading cases regarding &ldquo;Termination of Offers:&rdquo;


Financings Ltd v Stimson: When the offer is made subject to certain preconditions, the offer lapses is such conditions are not met. 


Hyde v Wrench: A counter-offer terminates the original offer (i.e., the original offer is no longer available and the offeree cannot accept it unless the offeror makes a new offer on the same terms).


Payne v Cave: The offeror can withdraw (i.e., revocation is available) at any time until it is unconditionally accepted.


Dickinson v Dodds: The revocation of an offer must be communicated to the offeree and communication can be made by a third party.   Once the offeree has knowledge of the revocation of the offer, the offer cannot be accepted. 


Errignton v Errington: An offer for a unilateral contract cannot be revoked once the offeree has commenced performance and intends and is capable of completing performance. 


Shuey V United States: Unilateral offers made by advertisement (public proclamation) in a printed publication can be revoked by a similar advertisement (i.e., it must be withdrawn through the same channel in which it was made). 
]]></content:encoded></item><item><title>Part 2 - Offers vs Invitations to Treat</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-08T20:04:41-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/2167448be1432a191b9dabee6bb0459e-92.html#unique-entry-id-92</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/2167448be1432a191b9dabee6bb0459e-92.html#unique-entry-id-92</guid><content:encoded><![CDATA[Below are the most relevant principles and leading cases regarding Offers vs other steps in the negotiation process:


Storer v Manchester City Council: An offer is an expression of a willingness to contract on certain terms upon acceptance.


Gibson v Manchester City Council: Negotiations to enter into a contract are invitations to treat but not offers


Carlill v Carbolic Smoke Ball Co: Advertisements for unilateral contracts can amount to offers even when addressed to the general public if the advertisement objectively person making the advertisement intends to be bound by it.


Partridge v Crittenden: Advertisements in printed publications of goods at certain price are normally considered invitations to treat and are not offers.


Fisher v Bell: Price-marked goods on display on the shelves or on windows or shops are normally considered invitations to treat and are not offers.


Pharmaceutical Society of GB v Boots Cash Chemists: Goods sold on self-service basis are invitations to treat, the customer makes the offer to buy at the cash register.


Walford v Miles: Agreements to negotiate are invitations to treat and do not amount to a binding contract, instead they are regarded as pre-contractual negotiations.


Harvela Investments Ltd v Royal Trust Co of Canada Ltd: Generally tenders are invitations to treat unless explicit language to accept the offer is stated (e.g., Harvela).


Blackpool Fylde Areo Club v Blackpool Borough Council: Invitations to tender include an implicit offer to consider all tenders correctly submitted but not necessarily to accept one.


Tiverton Estates Ltd v Wearwell Ltd: The statement &ldquo;subject to contract&rdquo; creates a strong presumption against there being a contract at the particular stage of contractual negotiations.
]]></content:encoded></item><item><title>Part 1 - Review of Case Law on Offer &#x26; Acceptance</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Contract Law (UK)</category><dc:date>2012-06-08T20:03:01-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/58c548bcd81bb0e74d4ab3a318c9d43e-91.html#unique-entry-id-91</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/58c548bcd81bb0e74d4ab3a318c9d43e-91.html#unique-entry-id-91</guid><content:encoded><![CDATA[This series of postings are intended as a summary that includes the most relevant legal principles derived from the English case law dealing with to the contractual formative requirements of offer and acceptance.   Offers must be distinguished from other related forms of communication such as invitations to treat, advertisements, displays of goods, and request for tenders.   Such forms of communication  are not offers and consequently cannot result in a  binding contract since they are not capable of being accepted.   The requirements of communication of revocations and acceptance are reviewed.   The full-text transcript of the cases is freely available at http://www.bailii.org.]]></content:encoded></item><item><title>Part 5-Doctrine of Precedent &#x26; HRA 1998 - Conclusions</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Common Law</category><dc:date>2012-06-08T19:54:36-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/20ea3de25c7d8b78040d5a06369d6cca-89.html#unique-entry-id-89</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/20ea3de25c7d8b78040d5a06369d6cca-89.html#unique-entry-id-89</guid><content:encoded><![CDATA[The introduction of the HRA 1998 initially raised issues regarding the potential impact of, inter alia, s.2 and s.6, on the judicial understanding of precedent, since lower courts in the UK could potentially depart from the domestic precedent established by higher courts (due to their &ldquo;public authorities&rdquo; status of the UK under s.6) and pursuant to the requirements of s.2 to follow the decisions of ECtHR instead (a court that itself does not recognize the principle of binding precedent with respect to its own previous decisions).   Even though such course of action was a potential possibility after the enactment of the HRA 1998, the case law developed in the last 12 years suggests that the UK lower courts continue to follow the domestic precedent even when it is in conflict with later decisions of the ECtHR, and granting the claimants direct right to appeal to the Supreme Court for it to resolve the inconsistency between domestic precedent and the ECtHR&rsquo;s decisions.   Furthermore, the Supreme Court has made it clear that it is not bound to follow every decision of the ECtHR and has successfully appealed cases before the Grand Chamber of the ECtHR.   In conclusion, in light of the case law developed after the enactment of the HRA 1998, the underlying features of the doctrine of judicial precedent, (i.e., the binding nature of a single decision of a domestic superior court on lower courts) seem to be impacted but the doctrine remains largely unchanged.   It is likely, however, that the Supreme Court may depart more often than before from their own previous decisions based on the jurisprudence of the ECtHR, especially when the decisions are directed to the interpretation of Convention Rights and are not in direct conflict with legislation enacted after the HRA 1998.
]]></content:encoded></item><item><title>Part 4-Relevant Case Law  (Precedent &#x26; HRA1998)</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Common Law</category><dc:date>2012-06-08T19:52:42-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/921d353fb8cb0c03a3d9ba6c14291836-88.html#unique-entry-id-88</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/921d353fb8cb0c03a3d9ba6c14291836-88.html#unique-entry-id-88</guid><content:encoded><![CDATA[In R (Alconbury Developments Ltd) v Secretary of State for the Environment [10] the House of Lords held that UK courts should &ldquo;in the absence of some special circumstances, follow any clear and consistent jurisprudence of the ECtHR&rdquo;.   This principle is illustrated in its extreme in a case concerning a challenge to control orders imposed on terrorist suspects based on &ldquo;solely or to a decisive degree&rdquo; on closed evidence without an opportunity for a proper challenge, namely, in A v UK by the House of Lords in Secretary of State for the Home Department v AF [11], Lord Hoffman noted that the ECtHR decision was &ldquo;wrong and that it may well destroy the system of control orders which is a significant part of this country&rsquo;s defences against terrorism&rdquo;.   Nevertheless the court chose to follow A v UK, and surprisingly stated the domestic courts had &rdquo;no choice but to submit&rdquo;. ...  Similarly, Lord Carswell noted &ldquo;not all may be persuaded that the Grand Chamber&rsquo;s ruling is the preferable approach&rdquo;.


The House of Lords also seems to tend to follow ECtHR decisions instead of the domestic precedent where the rulings conflict on questions of interpretation of Convention rights.   As an example, the House of Lords followed the Pretty v United Kingdom [12] ECtHR&rsquo;s decision instead of their own domestic precedent established in Pretty v DPP [13].


UK Court of Appeal Court Not Following ECtHR Decisions


In Price v Leeds County Council it was held by the Court of Appeal that when faced with a House of Lords proposition of law inconsistent with a decision of the ECtHR, it should follow domestic precedent and refer the case to appeal to the House of Lords.   This position should be contrasted with the Court of Appeal decision in D v East Berkshire NHS Trust [14], where the Court of Appeal departed from an earlier House of Lords decision.   However, arguably, this case did not proceed contrary to the principles of stare decisis, since it was considered that the prior decision could not have survived the introduction of the HRA 1998. ...  London Borough of Lambeth; Leeds City Council v Price [16], the decision clearly affirmed the priority of domestic precedent and regarded the facts in D v East Berkshire NHS Trust as extraordinary.


...In R v Horncastle [17], the Supreme Court decided not to follow the ECtHR&rsquo;s jurisprudence based on the margin of appreciation, that is, the ECtHR decisions on the matter failed to sufficiently appreciate aspects of domestic criminal law.   In refusing to follow Al-Khawaja v UK [18], it was stated that &ldquo;there will be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process.&rdquo;   It is important to remark, however, that at the time of this decision the decision on Al-Khawaja was being appealed before the Grand Chamber of the ECtHR.   Significantly, the Grand Chamber has now partially accepted the UK Supreme Court&rsquo;s position.   This has been, at last, the &ldquo;Lively dialogue, in and out of court&rdquo; between the ECtHR and English courts that had been advocated by Lady Justice Arden in her extra-judicial writings.


...In this case, Lord Neuberger decisively and clearly stated &ldquo;This Court is not bound to follow every decision of the EurCtHR.   Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law (see e g R v Horncastle [2009] UKSC 14; [2010] 2 WLR 47).   Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323.   But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber.   As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to &lsquo;take into account&rsquo; EurCtHR decisions, not necessarily to follow them.   Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.   In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way.&rdquo;   This is probably one of the statements that adds the greatest degree of clarity regarding the impact of the HRA 1998 on the doctrine of judicial precedent.


...Finally, a clarifying case regarding the relationships between domestic precedent and the effects of HRA s.2 and s.6, is R (GC) v Commissioner of the Police of the Metropolis [20] where the High Court had to decide whether to follow an older domestic precedent from the House of Lords or a more recent ECtHR ruling.   The High Court followed domestic precedent and granted the claimants a direct right of Appel to the Supreme Court.   Consequently, based on this decision it seems that lower courts are inclined to follow domestic precedent and letting the Supreme Court decide in cases of inconsistency between domestic precedent and later ECtHR rulings.
]]></content:encoded></item><item><title>Part 3- Human Rights Act 1998 &#x26; Judicial Precedent</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Common Law</category><dc:date>2012-06-08T19:51:56-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/ec02d1f1e4a8f03b3620849e8d37f2f1-87.html#unique-entry-id-87</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/ec02d1f1e4a8f03b3620849e8d37f2f1-87.html#unique-entry-id-87</guid><content:encoded><![CDATA[This posting provides a concise introduction to the HRA 1998 and states the main issues it raises regarding the traditional understanding of the doctrine of precedent in the English legal system.


The objective of the HRA 1998 was &ldquo;to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights&rdquo; [1].   The HRA 1998 provides for a partial incorporation of the European Convention on Human Rights (ECHR) into domestic law by giving selective elements of the Convention a special legal status as &ldquo;Convention Rights&rdquo; under HRA, s.1.   While the Act was intended to provide for greater protection of human rights and civil liberties in domestic law, it also affects the English legal system in general due primarily to the provisions of s.2, s.3, and s.6.   With regards to the relationships between the judiciary and Parliament, the act requires that primary legislation and subordinate legislation must be interpreted and given effect in a way which is compatible with the Convention rights (HRA, s.3), that is, domestic judges are given two significant legal powers [9]: 1) the duty of interpretation of legislation to achieve consistency with Convention rights and 2) the ability to issue declarations of incompatibility &ldquo;if the court is satisfied that the provision is incompatible with a Convention right&rdquo; (HRA, s.4).


More significant with regards to the doctrine of precedent are the ramifications of s.2., which states that, inter alia, &ldquo;a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration, or advisory opinion of the European Court of Human Rights (ECtHR)&rdquo; (HRA, s.2).   The fact that an Act of Parliament provides specific instructions to the courts regarding the &ldquo;Interpretation of Convention Rights,&rdquo; and compels the domestic courts to take into account decisions of the ECtHR raises issues related to the traditional judicial understanding of the doctrine of precedent.


The language of HRA, s.2 introduces uncertainty because it simply seems to impose a duty on the domestic courts to &ldquo;take into account&rdquo;.   On one hand, domestic courts are not required to follow the decisions of the ECtHR, and such decisions could be considered more like obiter dicta in domestic courts (i.e., statements said in the case that do not form part of the ratio decidendi and are persuasive but not binding on other cases).   On the other hand, since HRA, s.6.(1) makes it &ldquo;unlawful for a public authority to act in a way which is incompatible with a Convention right&rdquo; and according to HRA, s.6.(2) a &ldquo;public authority includes (a) a court or tribunal [...]&rdquo;, the Act could be interpreted as placing a duty on inferior courts (public authorities) to avoid precedent of a superior court (also a public authority) if the superior court&rsquo;s decision is not compatible with a decision of the ECtHR.   Consequently, all common law principles and precedent that are incompatible with Convention rights are potentially open to challenge by inferior courts.   This uncertainty is compounded by the fact that Convention law, as opposed to European Community law (EC/EU law), has never been intended to be supreme over the domestic law of the signatory states, and that the ECtHR jurisprudence has always offered a &ldquo;margin of appreciation&rdquo; for member states in order to give effect to Convention rights in a way consistent with their own legal system -which in the case of UK law is based on the doctrine of judicial precedent.   This uncertainty related to the HRA 1998 impact on precedent is apparent in early peer-reviewed publications on the topic [5].


In order to resolve the uncertainty with regards to the impact of the HRA 1998 on the doctrine of precedent, we would need to ascertain more precisely what is the current status of the ECtHR decisions and their relationship with decisions of superior courts in the UK.   To accomplish this we look at the authorities in case law involving the interaction between of the HRA 1998 and judicial precedent.   We are particularly interested on instances of dissent between the UK courts and the ECtHR, as well as instances where domestic court decisions may have departed from the traditional understandings of the doctrine of judicial precendent.   Recent scholarly publications also help add clarity to the current understandings of the impact of the HRA 1998 on judicial precedent [7, 6, 8].
]]></content:encoded></item><item><title>Part 2- Traditional Judicial Understanding of Precedent</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Common Law</category><dc:date>2012-06-08T19:51:07-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/335d1660effe226149e16958b075a096-86.html#unique-entry-id-86</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/335d1660effe226149e16958b075a096-86.html#unique-entry-id-86</guid><content:encoded><![CDATA[This posting provides a concise overview of the traditional understanding of precedent in order to later assess the impact of the HRA 1998 [1] on the underlying features of this doctrine.


The English legal system follows the doctrine of judicial precedent.   Judicial precedent holds that judges in lower courts are bound to follow decisions previously made in higher courts.   This doctrine is based on the general principle of stare decisis (i.e., to stand by cases already decided).   Consequently, when a legal proposition has been decided in one case, it has to be followed in certain courts.   Precedents created by superior courts bind lower courts, that is, the ratio decidenti (i.e., the reason for deciding) or legal principle upon which a case is decided in light of material facts is a binding legal principle on other cases.   For instance, the decisions of the House of Lords/Supreme Court bind all lower courts in the UK.   The advantage of the doctrine of precedent is that it provides certainty and predictability.   The disadvantage, however, is that stare decisis can result in a lack of flexibility and an inability of the common law to adapt to changing moral, socio- economic, and political realities resulting in a static body of law.


The certainty versus flexibility dilemma was addressed in the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 [2] where the House of Lords stated that while it considers itself normally bound by its own decisions, it may depart from a previous decision in certain rare circunstances.   Their Lordships departure from the traditional understanding established in the London Tramways Co Ltd v London County Council [1898] AC 375 [3] where the House of Lords stated that it was strictly bound by its past decisions was based on the fact that &ldquo;too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law&rdquo; (i.e., the need for flexibility).   At the same time, they also highlighted &ldquo;the especial need for certainty as to the criminal law&rdquo;, the danger of &ldquo;disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into&rdquo;, and that binding precedent &ldquo;provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs&rdquo; (i.e., the need for certainty).   Consequently, the House of Lords (currently the Supreme Court of the UK [4]) binds all the lower courts and would only depart from its own decisions in rare cases.   This helps achieve certainty in business dealings, criminal law, land law, and all other relevant areas of law that critically depend on predictability, while also enabling them to develop the common law.
]]></content:encoded></item><item><title>Part 1- An Analysis of the Impact of the Human Rights Act 1998 on the Judicial Understanding of Precedent</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Common Law</category><dc:date>2012-06-08T19:49:10-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/60d2d2b3633d7d09b0d32ee470ca2958-85.html#unique-entry-id-85</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/60d2d2b3633d7d09b0d32ee470ca2958-85.html#unique-entry-id-85</guid><content:encoded><![CDATA[This series of blog postings analyse the impact of the Human Rights Act 1998 (HRA 1998) on the judicial understanding of precedent.   In order to examine whether the underlying features of the doctrine of precedent remain unchanged after the partial incorporation of Convention Rights by the HRA 1998 it is necessary to analyse the relevant developments in case law involving the interaction between the HRA 1998 and judicial precedent.   This article provides a concise introduction to the underlying features associated with the traditional understanding of judicial precedent in the English legal system, introduces the relevant sections of the HRA 1998 that affect the doctrine of precedent, and analyses the relevant case law on the topic to draw.
]]></content:encoded></item><item><title>Sustainability: Hax&#x27;s Delta Model Framework (Examination of Schwab)</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2009-03-28T23:38:41-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/e7ba6cb261977d933f8d360532d6f560-83.html#unique-entry-id-83</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/e7ba6cb261977d933f8d360532d6f560-83.html#unique-entry-id-83</guid><content:encoded><![CDATA[The Delta Model was proposed by Arnoldo Hax (MIT Sloan) (Hax.03).   As a unified strategic framework developed after the mainstream adoption of Internet, it provides specific strategic options beyond the &ldquo;Best Product Strategy" (i.e. differentiation or low cost) such as  the &ldquo;Total Customer Solution" and &ldquo;System Lock."   Within the wide range of potential strategies the Delta model points out the potential strategic value of IS/IT as enabling technologies to promote boding (with customers, complementors, partners, etc) and leading to a range of potential strategies such as &ldquo;redefining the customer experience" (e.g.   Saturn, Barnes & Noble, Startbucks iTunes), &ldquo;customer integration" (Dell, Mathworks), &ldquo;dominant exchange" (Google, YouTube, Wikipedia, iTunes), &ldquo;system lock" (Intel, Microsoft).   According to the Delta Model strategies based on best product are the most difficult to sustain; strategies based on customer integration, customer boding are a better strategic position, and  dominant exchanges and system lock are the most sustainable since they affect the whole system and complementors.   Schwab's current position of leadership does not seem to achieve dominant exchange status or system lock.   Dominant exchange is achieved when a critical mass of collaborating users has been reached and each new user makes the service more useful (e.g. youTube, Wikipedia).   System Lock represent the strongest form of bonding and integration among complete industries around a product (e.g. all the software companies developing Windows specific solutions).   It focuses in the entire system economics instead of product-centered economics.   The firm success is due primarily to the complementors that create solutions based on the firm's architecture.    According to this post-internet strategic framework, Schwab has not achieved a strategic positioning that gives them a significant competitive advantage over its competitors.   Consequently, Schwab historical success is not necessarily sustainable, it must rely on continuous innovation, customer bonding, as well as other intangible assets to continue to outperform competitors in the current hypercompetitive changing environment.


Note: This is the last posting in the series of 7 blog entries designed to examine the relationship between Charles Schwab&rsquo;s Business and IS/IT strategy. ]]></content:encoded></item><item><title>Sustainability: Advantage Through Superior IS/IT Systems (Examination of Schwab)</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2009-03-28T23:36:27-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/43b08071d9ac040a373459f99a6b261a-82.html#unique-entry-id-82</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/43b08071d9ac040a373459f99a6b261a-82.html#unique-entry-id-82</guid><content:encoded><![CDATA[Schwab initially achieved its leadership position as a discount brokerage firm due to their superior technological capability, IS/IT know-how, and the scalability of their original IS/IT infrastructure.   As explained earlier, social factors such as the alignment between the firms competitive strategy and IS/IT strategy, capability for rapid prototyping an product development, and agility also played a significant role in their earlier success.   In fact, Schwab's investment in IT hardware and software back in 1995 was moderate. 


As we have already pointed out in a previous post ...   In the specific context of achieving sustainable competitive advantage using IS/IT,  Carr has made the argument that while information technology has become the backbone of commerce, the importance of IT and information systems (IS) as a strategic resource capable of gaining sustainable competitive advantage has diminished (Carr.03).   He acknowledges that IT is critical to today's competitive environment.   However, he makes the point that because IT/IS has become so essential to competition it is inconsequential to strategy.   This conclusion is based on the assumption that what makes a resource a source of sustainable competitive advantage is not its ubiquity but its scarcity, that is, a company gains an edge over its competitors by doing something that they can't do or have.   Since IS have become commonplace (i.e. data storage, data processing, data transport, CRM, etc), standardized, and available to all competitors as common adopted technologies, its potential as a source of differentiation has diminished.   In summary, IS are becoming a commodity and an expense of doing business.   According to Carr, given that the value of IS as a strategy resource has been vanishing, he recommends firms nowdays to 1) spend less (research  shows that companies with the biggest IT investment do not post the best financial results), 2) follow, don't lead (Moore's law guarantees that the longer you wait to make an IT purchase, the more you will get for your money, and you will be investing in IT capabilities that become more homogenized as opposed to proprietary), and 3) focus on vulnerabilities and not opportunities.   While these recommendations of cautious IT investments are intended for the current environment, it is remarkable that Schwab's initial E-business strategy back in 1995 was implemented with a minor IT capital investment by using the existing infrastructure. 


Brown and Hagel III (2003) agree that some business nowadays may have overestimated the strategic value of IT, significantly overspent on technology, and recognize the importance of managing IS more rigorously to reduce capital investment requirements and operating costs (Brown.03).   However, they emphasize that while in many cases IT (especially standardized IT) is diminishing as a source of strategic differentiation, IT matters a lot (i.e. it does matter to the point of being critical).   Brown and Hagel III are of the position that while differentiation is not in IT itself, it is in the new practices and services that IT/IS enable to create that make it critical.   Consequently, while Schwab was able to achieve competitive advantages through superior IS/IT capability, it is unlikely that IT alone will be the source that enables the firm to sustain its leadership position. ]]></content:encoded></item><item><title>Sustainability: Hyper-competition and Continuous Change (Examination of Schwab)</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2009-03-26T23:34:37-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/218b029816e649569c54a0a1696c4fb6-81.html#unique-entry-id-81</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/218b029816e649569c54a0a1696c4fb6-81.html#unique-entry-id-81</guid><content:encoded><![CDATA[The question of whether sustainable competitive advantage is possible in fast-changing hyper-competitive environments such as the financial services sector is actively being debated by the research community.    Attaining and sustaining competitive advantage in today's continuously changing hyper-competitive global environment is challenging.     Continuous and disrupting change is especially significant in the financial services sector since regulatory pressure and policy can change very quickly depending on the national and global economic situation as well as political factors. 


  Some authors have argued that in the current fast-changing environment the firm's objective should be directed to an active strategy of disrupting the status quo to create an unsustainable series of competitive advantages (D'Aveni.99).    According to this school of thought, sustainable competitive advantages are no longer possible and we are in the next level of competition (D'Aveni.99).   The reality of continuous change leads to a new competitive paradigm that goes beyond the traditional basis for competition such as service, quality, price, products, reputation, customer base, and market access.   These classical factors are certainly a pre-requisite for achieving success, but sustaining a leadership position depends on  great measure of intangible factors operating at  the social fabric level of the firm.   These include the firm's culture, processes, corporate systems, human resources, management style, adaptability and agility, as well as leadership capability and vision.   Schwab's ability to quickly prototype, test, and successfully intro to market new services (e.g. e.  Schwab in 1996, Schwab Brokerage Site in 1998, Schwab Alerts in 1999, Learning Center in 2000, PocketBroker in 2000, CyberTrader in 2003, Personal Choice in 2004, Rebalacing Wizard in 2004) as well as the numerous awards received since 1998 are an indication of Schwab's capability and potential for sustainable success through continuous innovation in finding new ways to add value for customers in order to retain their loyalty. ]]></content:encoded></item><item><title>RBV Framework Analysis of Schwab&#x27;s Business and IS/IT Strategy</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2009-03-21T23:32:38-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/c0cf4c2c24f7450a2ad34f16da008678-80.html#unique-entry-id-80</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/c0cf4c2c24f7450a2ad34f16da008678-80.html#unique-entry-id-80</guid><content:encoded><![CDATA[The resource-based view (RBV) is useful to complement Porter's competitive forces model focused on the industry structure analysis.   The RBV framework proposed by Barney and others provides a theoretical model to analyze the idiosyncratic attributes of the firm and their impact on its competitive position (Barney.91). 


From the RBV framework it is important to note that by the time Schwab was ready to implement the E-business strategy in 1995, it already possessed significant technological resources, systems, know-how, and capability.   Ever since its inception in 1971, Schwab had been a technological front-runner.   Dave Potturck (Former Schwab President) preferred to think of Schwab as a technology firm which operated in the financial services industry.   Robert Duste (Senior VP, 97) remarked that technology was not a sideline but a core part of the brand and a core part of the business (``almost every business decision involves a discussion of how we're going to use technology to do things for our customers that no-one else can do").   In fact, Schwab introduced services to enable stock trading through PCs in 1985 before it started using the telephone for trading in 1989.   By 1985 Schwab posessed core competencies that were difficult to replicate, transfer, and appropriate by traditional full-service financial service firms such as Merryll Lynch.   Consequently, they 1) leveraged their unique technological resources to improve value, 2) differentiated their product (discount brokerage targeted to individual investors) based on core competencies (IS/IT capability), and 3) changed the rules of competition by creating new customized products based on their IS/IT leadership (Barney.91). 


Beyond the actual physical IT infrastructure that Schwab already possessed by 1995 (hardware and networks), it also had three other critical resources, namely 1) the ability to mobilize and rapidly deploy new IS/IT to achieve business objectives (e.g. a 30 member team developed, prototyped, tested, and launched e.  Schwab in less than 12 months), 2) human IT infrastructure (skills and management capability), and 3) intangible IT resources such as IS culture assets, customer-focused orientations, and excellent management practices capable of aligning IS and business strategy.   Research has shown that precisely these intangible IT-based resources (e.g. corporate culture, customer orientation, environmental orientation, know-how, change management) deeply embedded in the firms social fabric are a major contributor to competitive advantage and superior performance (Bharadwaj.00).
]]></content:encoded></item><item><title>Porterian Analysis of Schwab&#x27;s Business and IS Strategy</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2009-03-06T23:28:40-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/6d3b04eb134fb2d967255331681caba7-79.html#unique-entry-id-79</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/6d3b04eb134fb2d967255331681caba7-79.html#unique-entry-id-79</guid><content:encoded><![CDATA[In this post we analyze how Schwab's strategic use of information technology enabled the firm to address the competitive forces at work.    The well-known Porter's competitive forces model (Porter.79) is a useful theoretical framework to start examining the nature of the interactions between Schwab  and each of the five forces within the industry environment in which it operates.   Briefly, according to Porter's competitive forces model, in order for a firm to succeed in any given industry, it must effectively address five competitive forces: 1) intensity of rivalry among the existing competitors in the industry, 2) threat of potential new entrants, 3) threat of substitutes, 4) bargaining power of suppliers, and 5) bargaining power of customers (Porter.79). 


Schwab's E-business strategy was part of a larger multi-channel strategy rooted on the firm's customer-focused corporate philosophy whose objective was to provide the maximum number of channels for customers to interact and transact with the company (i.e. ``to provide customers with the most useful and ethical brokerage services in the US").   The objective was to give customers a wide choice.   Given this intrinsic strategic alignment between business and IS strategy (Henderson.93), IS/IT capability enabled Schwab to create competitive advantages by offering new services, improving efficiency, improving decision making, and using information systems to achieve operational effectiveness. 


A key element of Schwab's IS strategy was to avoid over investing in complete new IT systems (Carr.03).   As Carr points out greater IT expenditures do not necessarily lead to superior financial results.   Instead, in 1995 Schwab's research group developed a software to enable the existing servers at Schwab to receive trading orders through a web-browser at a PC, send it to Schwab's operational back-end systems, fulfill the order, and pass on the confirmation to the PC.   The system (e.  Schwab) was developed by a 30-member team in less than a year.   By 1996, e.  Schwab was ready with a new internet-based product and the firm had become the first major financial services company to permit web-based trading of listed OTC stocks, mutual funds, bonds, and options.   Using Porter's competitive forces framework, this new and transforming product can be considered a substitute product that enabled access to a significant market and help change the nature  of the competition to put Schwab in a dominant competitive position.       The Internet facilitated the completion of trade transactions at a much lower cost since it reduced the need for personnel at contact centers, and given that it did not require Schwab to make a substantial capital investment on IT infrastructure or manpower (Carr.03), the savings could be passed on to customers by charging less commission per trade.  


In terms of the classical Porterian competitive strategies, Schwab was able to effectively use IS/IT in order to 1) offer a differentiated product resulting in overall best product leadership, 2) reduce operational costs resulting in overall operational leadership, and 3) lower product costs resulting in overall low cost leadership.   By 1997, one year after the introduction of the transforming IS product, the value of online assets handled by e.  Schwab had reached \$81B.   In these earlier years of the internet revolution, Schwab critical alignment between business and IS/IT strategy enabled the firm to gain competitive advantage through information~\Porter.85  by 1) lowering costs at all levels in the value chain, 2) enhancing differentiation}by using IS/IT to customize products, 3) changing the competitive scope by using IS/IT to increase the firm's ability to coordinate its activities regionally, nationally, and globally (e.g. reducing workload at local branches); creating interrelationships among previously separated industries (e.g. services such as ``Analyst Center"  provided customers access to external research from leading firms such as S\&P and DJ); segment their offerings in ways previously feasible only for focused (niche) companies (e.g. ability to provide customized service offerings depending on need of its customers); and 4) spawning new business by creating derived demand for new products and services  (e.g. new Schwab services and programs such as Schwab Alerts, Learning Center, PocketBroker, Personal Choice, Rebalancing Wizard).


In the late 90s, a key element of Schwab's strategy was to use the IS/IT systems to extract data regarding the customer preferences, monitoring the customer accounts, and studying the websites customers visited in oder to segment and target its customers and use this proprietary marketing information to design innovative customized products and manage customer relationships more effectively.   Thus, Schwab was effectively using IS/IT at all levels in the value chain as a powerful tool for enhancing operational effectiveness in order to complement the traditional ways of competing (Porter.01). 


In summary, as a customer-focused technology firm operating in the financial services sector, Schwab was able to make effective use of their information technology and information systems capability to affect competition in three general ways: 1) changing the industry structure and the rules of competition, 2) creating competitive advantage by enabling the company to create new customized products which were both differentiated and low-cost, and 3) transforming the value chain to enhance operational effectiveness (Porter.79, Porter.85, Porter.01).   Furthermore, Schwab was able to implement this aligned business/IS strategy without incurring in major IT infrastructure investments or new IS/IT systems implementation (Carr.03).   Instead, Schwab's strategic impact of IT investments came from the cumulative effect of sustained initiatives to innovate business practices in the near term and aimed for differentiation not in the IT itself but in the new customized services and operational practices it enabled to create to meet the customer needs and demands (Brown.03).]]></content:encoded></item><item><title>Examination of Charles Schwab&#x27;s Business and IS/IT Strategy Alingment</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2009-02-08T23:26:21-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/57bf5fae50bd1e3bbf622446a195d998-78.html#unique-entry-id-78</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/57bf5fae50bd1e3bbf622446a195d998-78.html#unique-entry-id-78</guid><content:encoded><![CDATA[ The alignment and execution of Charles Schwab's (Schwab)  business and information systems/information technology (IS/IT) strategies have made the firm a leading discount brokerage firm targeted at individual investors.    Schwab is now the industry leader discount investment brokerage firm in terms of market capitalization (17.59B) and return on equity (ttm, 31.57%).    In the following blog posts we analyze Schwab's IS/IT strategy using Porter's competitive forces (Porter.79,Porter.85, Porter.01) and the resource-based view (RBV) of strategy frameworks (Barney.91,Bharadwaj.00).   Finally, we address the question of whether Schwab's success is sustainable (Carr.03,Brown.03) and introduce Hax's Delta Model (Hax.03) to facilitate this analysis. ]]></content:encoded></item><item><title>Examination of Charles Schwab&#x27;s Business and IS/IT Strategy</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2009-01-27T23:23:59-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/659315af0956b3917cc4e53345b422eb-77.html#unique-entry-id-77</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/659315af0956b3917cc4e53345b422eb-77.html#unique-entry-id-77</guid><content:encoded><![CDATA[The next series of blog post examine the relationship between Charles Schwab&rsquo;s business and information systems/information technology (IS/IT) strategy.   We analyze Schwab&rsquo;s IS/IT strategy using Porter&rsquo;s competitive forces and the resource-based view of strategy frameworks.   Finally, we address the question of whether Schwab&rsquo;s success is sustainable using current frameworks including Hax&rsquo;s Delta Model.]]></content:encoded></item><item><title>A New Category - Programs</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Programs</category><dc:date>2008-11-24T21:20:33-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/29362a45292a8f175499d4269b745b37-76.html#unique-entry-id-76</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/29362a45292a8f175499d4269b745b37-76.html#unique-entry-id-76</guid><content:encoded><![CDATA[Students, friends, and colleagues often ask me about software tools I use to prepare class materials,  record lectures, write journal papers, manage research articles, etc.   I spend a lot of time answering these individual questions by email.   Thus, I decided to create a new Category on my blog -the Programs Category.   I will go posting entries as I receive new requests...   I expect this will save a me a lot of time. ]]></content:encoded></item><item><title>Library of Science - Papers</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Programs</category><dc:date>2008-12-25T21:08:54-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/598a491a07ee140ddbc86c8c9e674934-75.html#unique-entry-id-75</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/598a491a07ee140ddbc86c8c9e674934-75.html#unique-entry-id-75</guid><content:encoded><![CDATA[Papers is an excellent application for Mac that enables you to search, download, archive papers.   It allows you to browse, organize, read, annotate, etc.   Here is the link.  ]]></content:encoded></item><item><title>LaTeX Tutorial</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Programs</category><dc:date>2008-12-25T20:43:31-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/597d18b4a97e2441748051ac5cf7a483-74.html#unique-entry-id-74</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/597d18b4a97e2441748051ac5cf7a483-74.html#unique-entry-id-74</guid><content:encoded><![CDATA[The best introduction to LaTeX I know of is entitled &ldquo;The Not So Short Introduction to LaTeX -or LateX2e in 141 minutes&rdquo; written by Toblas Oetlker.   You can get the PDF by clicking here.]]></content:encoded></item><item><title>Installing LaTeX</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Programs</category><dc:date>2008-12-25T20:30:37-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/f7b1461ea58d41fb7f58c266ee433c75-73.html#unique-entry-id-73</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/f7b1461ea58d41fb7f58c266ee433c75-73.html#unique-entry-id-73</guid><content:encoded><![CDATA[Several of my students have been asking me about installation of LaTeX for Mac OS X.   Below is a series of steps:


-1) Download the MacTeX package: http://www.tug.org/mactex/


-2) Follow the GUI instructions to install MacTeX


-3) Download and Install TeXShop:  http://www.uoregon.edu/~koch/texshop/


-4) Install a reference manager such as JabRef: http://jabref.sourceforge.net/ 


Note: TeXShop may already be included with the newer MacTeX distributions. ]]></content:encoded></item><item><title>Finance and Financial Engineering</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Finance</category><dc:date>2008-10-12T23:52:47-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/75c53766fc94b4be1e16694a70f90d22-72.html#unique-entry-id-72</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/75c53766fc94b4be1e16694a70f90d22-72.html#unique-entry-id-72</guid><content:encoded><![CDATA[I received some questions regarding the fact that I have categories for almost all the core subjects in the graduate management curriculum (e.g.   MBA) except for finance.   Classically, the core functional areas of management are strategy, marketing, finance, operations management, human resource management, management information systems, and business law (primarily IP law and contract law). 


I had intentionally left out finance because I felt a little bit uneasy talking about finance on a blog that is part of my personal academic site.   I have now added the category and I will probably have some postings about financial accounting and managerial accounting in the future but I don&rsquo;t plan to talk about investing, trading, or any financial engineering topics in this blog. 


Unless I start a new area of research focused on applying statistical signal processing and time-series analysis to study some financial engineering problems I will use a separate blog for those postings: http://www.aboyfinancial.com/]]></content:encoded></item><item><title>My Favorite Books on Signal Processing (Top 15)</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Reading and Books</category><dc:date>2008-06-29T22:22:16-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/bcea7bb25d2b553bd14d3a782ed0690d-71.html#unique-entry-id-71</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/bcea7bb25d2b553bd14d3a782ed0690d-71.html#unique-entry-id-71</guid><content:encoded><![CDATA[The list below includes some of the authors and corresponding books that have influenced me the most in the field of signal processing.   The list I provide consist of my top 15 selection.    I hope to have time to do a more detailed review of each of them someday in the future:


-Digital Signal Processing, Proakis (DSP Fudamentals)


-Introduction to Linear Algebra, Strang (Math Basics for SSP)


-Intuitive Probability and Random Processes using MATLAB, Kay (Math Basics for SSP)


-Statistical Digital Signal Processing and Modeling, Hayes (Statistical SP)


-Statistical and Adaptive Signal Processing, Manolakis (Statistical SP)


-Applied Optimal Estimation, Gelb (Kalman Filters)


-Linear Estimation, Kailath/Sayed (Kalman Fitlers)


-Statistical Signal Processing, Kay (Linear Estimation)


-Adaptive Filter Theory, Haykin (Adaptive Filtering)


-Adaptive Signal Processing, Widrow (Adaptive Filtering)


-Fundamentals of Adaptive Filtering, Sayed (Adaptive Filtering)


-Spectral Analysis of Signal, Stoica (Spectrum Estimation)


-Digital Spectral Analysis with Applications, Marple (Spectrum Estimation)


-An Introduction to the Bootstrap, Efron (Adaptive Filtering) 


-Bootstrap Techniques for Signal Processing, Zoubir (Bootrap)


Of these, the most influencial books for my research have been Statistical Digital Signal Processing by Hayes and Linear Estimation by Kailath. 
]]></content:encoded></item><item><title>My Favorite Books on Management (Top 15)</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Reading and Books</category><dc:date>2008-06-29T21:41:07-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/30270171554d5141fd504b4762e97b95-69.html#unique-entry-id-69</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/30270171554d5141fd504b4762e97b95-69.html#unique-entry-id-69</guid><content:encoded><![CDATA[The list below includes some of the authors and corresponding books that have influenced me the most in the field of management and leadership.   I hope to have time to do a more detailed review of each of them someday in the future:


-The Delta Project, Arnoldo Hax (Strategy)


-Classic Drucker, Peter Drucker (Management)


-The Practice of Management, Peter Drucker (Management)


-The Effective Executive, Peter Drucker (Leadership)


-Kotler on Marketing, Philip Kotler (Marketing)


-Re-Imagine, Tom Peters (Innovation)


-The Circle of Innovation, Tom Peters (Innovation)


-Competitive Strategy, Michael Porter (Strategy)


-Competivite Advantage, Michael Porter (Strategy)


-Leading Change, John Kotter (Change Management)


-Marketing Management and Strategy, Peter Doyle and Phillip Stern (Marteting)


-The Dynamics of International Strategy, Susan Segal-Horn and David Faulkner (International Strategy)


-Analysis for Financial Management, Robert Higgins (Finance)


-The Human Side of Managing Technological Innovation, Ralph Katz (Technology Management)


-The Organization and Architecture of Innovation, Thomas Allen (Space & Innovation). 


Of these, the authors that have influenced me the most have been Arnoldo Hax, Peter Drucker, Tom Peters, and Philip Kotler.   I had the great pleasure and oppotunity to take the course on &ldquo;Reinventing Business Strategy&rdquo; taught by Arnoldo Hax at MIT Sloan.   His presentations, analysis, and clarity of thinking was life changing.   I also had the opportunity to take courses by Ralph Katz and Thomas Allen at MIT. ]]></content:encoded></item><item><title>Are Information Systems a Source of Substainable Competitive Advantage?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2007-12-19T17:53:42-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/c573c4f791868b810c691c47ccb83771-68.html#unique-entry-id-68</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/c573c4f791868b810c691c47ccb83771-68.html#unique-entry-id-68</guid><content:encoded><![CDATA[In his seminal 2003 Harvard Business Review article "It Doesn't Matter" Nicholas Carr made the argument that while information technology has become the backbone of commerce, the importance of IT and information systems (IS) as a strategic resource capable of gaining sustainable competitive advantage has diminished.   Carr's acknowledges that IT is critical to today's competitive environment.   However, he makes the point that because IT/IS has become so essential to competition it is inconsequential to strategy.   This conclusion is based on the assumption that what makes a resource a source of sustainable competitive advantage is not is ubiquity but its scarcity, that is, a company gains an edge over its competitors by doing something that they can't do or have.   Since IS have become commonplace (i.e. data storage, data processing, data transport, CRM, etc), standardized, and available to all competitors as common adopted technologies, its potential as a source of differentiation has diminished.   In summary, IS are becoming a commodity and an expense of doing business.   In the 1990s , the US Department of Commerce's Bureau of Economic Analysis estimated that 30% of the capital expenditures of US companies went to IT.   By the end of the decade it had reached 50% to amount over a $2 trillium a year in IT-related expenses worldwide. 


After making the case of how the value of IS as a strategy resource has been vanishing, Carr provides three recommendations regarding IS management: 1) spend less -studies how that companies with the biggest IT investment do not post the best financial results, 2) follow, don't lead -Moore's law guarantees that the longer you wait to make an IT purchase, the more you will get for your money, and you will be investing in IT capabilities that become more homogenized as opposed to proprietary, and 3) focus on vulnerabilities and not opportunities. 


Brown and Hagel III (2003) responded to Carr's paper in a letter to the editor entitled "Does IT Matter" HBR (2003).   The authors acknowledged the importance and value of Carr's article and agreed that business may have overestimated the strategic value of IT, significantly overspent on technology, and recognized the importance of managing IS more rigorously to reduce capital investment requirements and operating costs.   They emphasize that while in many cases IT (especially standardized IT) is diminishing as a source of strategic differentiation, IT matters a lot (i.e. it does matter to the point of being critical).   Brown and Hagel III provide a detailed response to Carr's paper and conclude that while differentiation is not in IT itself, it is in the new practises that IT/IS enable. 


The value of IT can be studied in terms of the three main schools of strategy: Harvard School (Porter, Five Forces, 80s), London School (Hamel/Prahalad, Resource View, 90s), and MIT Sloan School (Hax,Delta Model, 21st).   For instance, in terms of Porter's five forces industry structure model, the strategic use of IS can help build barriers of entry or put in place barriers of entry for competitors, it can help increasing the switching costs for customers and decrease their bargaining power, enable companies to create substitute products, and limit the bargaining power of suppliers.   The RBV emphasises how firm-level IS dynamic capabilities may translate into sustainable competitive advantage by generating "generic lead time" (time taken by a competitor to duplicate an IS system, application or IS-based product), "competitive asymmetry" (the ability of the competitor to replicate the first mover's system", and "pre-emption potential" (the ability of the first mover to pre-empt the retaliation by the follower (Feeny, Ives, 90). 


In my opinion the best conceptual framework to analyze the value of IS is the Delta Model proposed by Arnoldo Hax (MIT Sloan).   As a unified strategic framework developed after the mainstream adoption of Internet, it provides specific strategic options beyond the Best Product Strategy such as Total Customer Solutions and System Lock.   Within the wide range of potential strategies the Delta model points out the potential strategic value of IT/IS as enabling technologies to promote boding (with customers, complementors, suppliers, etc) and lead to a range of potential strategies such as "redefining the customer experience" (e.g.   Saturn, Barnes & Nobel, Startbucks iTunes), "customer integration" (Dell, Mathworks), "dominant exchange" (Google, YouTube, iTunes), etc. 


...[1] Carr, N (2003), "IT Doesn't Matter" Harvard Business Review. 


[2] Brown, JS & Hagel III, J (2003), "Does IT Matter" Harvard Business Review


[3] Laudon (2004), "Managing Information Systems - Managing the Digital Firm" 


[3] Hax, A (2001), "The Delta Project"


[4] Porter, M (1980, 1985), "Competitive Strategy" & "Competitive Advantage" 


[5] Barney, J (1991), "Firm Resources and Sustained Competitive Advantage" 


[6] Feeny, F, Ives, B (1990), "In Search of Sustainability: Reaping Long-Term Advantage from Investments in Information Technology" ]]></content:encoded></item><item><title>Why a strategy based on technology alone cannot help organizations solve their business problems and achieve their business objectives?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2007-12-19T17:53:13-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/49641da6cd18cc458dccc327104ab77a-67.html#unique-entry-id-67</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/49641da6cd18cc458dccc327104ab77a-67.html#unique-entry-id-67</guid><content:encoded><![CDATA[There plenty of examples of companies that have gained sustainable competitive advantage through effective use of information systems (e.g.   Amazon, eBay, Dell, Walt-Mart, Apple, YouTube, etc).   Many other firms, however, fail to realize the benefits of their capital investments on information technology (IT).   This is explained, in part, by the fact that strategies based on technology alone tend to be ill-conceived and limiting.   This is the case because a mere technical strategy can have serious negative implications for organizations because it does not take into account numerous "societal considerations" that are critical in order for IT to function as an effective information system (IS).   These societal considerations and human factors include an understanding of the organizational culture, context, values, structure, and processes.   Top-down implementations based on technology considerations alone can be extremely disruptive to well-established and efficient business processes and often result in resistance from the intended user-base in the organization.   Kling (2000) warns firms of the dangers associated with the technological approach and the thinking that IT/IS are mere "tools."   According to Kling, viewing IT/IS as tools leads to 1) underestimate the cost associated with effective IS/IT implementation and adoption, and 2) overestimate the generalizability of applications from one setting or group of individuals to another. 


IS investments and implementations have a much better change of translating into competitive advantage when they take into account the underlying organizational context and its impact on how IS are used.   Societal aspects associated with the firm will determine how the IS will be used.   IS will, in turn, affect the organizational context.   For instance, the IS adopted in multidomestic enterprises will probably differ from those adopted by global enterprises due to differences in organizational structures, context, and processes; and adopting a given IS may -in turn- change these enterprises to behave more or less as transnational firms.


In summary, IS should be viewed as enabling technologies that are in constant interaction with people and processes within the organization.   This is due, in part, to the evolving role of IS from data processing tools (50s), to managerial control tools (60s), to decision support tools (70/80s), to institutional core activities (90s), to becoming a major source of competitive advantage (21st).   The view of IS as social systems is known as the "sociotechnical approach" (Laudon 2004) and there is an extensive body of research that examines the design, uses, and consequences of information and communication technologies (ICT) in ways that take into account their interaction with institutional and cultural contexts.   This area of research is now known as "social informatics" (Kling 2000). 


References:


Kling.   "Learning Abut Information Technologies and Social Change: The Contribution of Social Informatics."   (2000)


Laudon.   "Managing Information Systems - Managing the Digital Firm" (2004)]]></content:encoded></item><item><title>Information Systems and Their Effect on Academia</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2007-11-24T17:52:53-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/7947389bcdbf757ed19250bf2bfb4e92-66.html#unique-entry-id-66</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/7947389bcdbf757ed19250bf2bfb4e92-66.html#unique-entry-id-66</guid><content:encoded><![CDATA[Information Systems have affected academia significantly.   With regards to teaching, IS have became a critical component and online/web courses are now mainstream even at traditional face-to-face/campus universities.   IS have also had a tremendous effect on research.   Most peer-reviewed journals currently employ manuscript management systems where journal submissions and the peer-review process takes place.   This has shortened the review and publication time.   Additionally, performing literature reviews and prior-art searches has become easier than ever before due to improvements in IS.]]></content:encoded></item><item><title>What is an Information System?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Management IS</category><dc:date>2007-11-23T17:52:02-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/19a8323e36eaae66560e5dced4404496-65.html#unique-entry-id-65</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/19a8323e36eaae66560e5dced4404496-65.html#unique-entry-id-65</guid><content:encoded><![CDATA[An information system is a set of interrelated components that collect or retrieve, store, analyze, and distribute information to support organisational decision making an control.   Information systems include technical components (hardware, software, etc) -i.e. the Information Technology- and the associated human interaction with technology.]]></content:encoded></item><item><title>Importance of MNE Structure Models and Typologies and Empirical Evidence</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-10-10T20:56:39-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/1ca1d2f868800188e2da0cdbf0769604-64.html#unique-entry-id-64</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/1ca1d2f868800188e2da0cdbf0769604-64.html#unique-entry-id-64</guid><content:encoded><![CDATA[The organization of modern MNEs is more complicated than the traditional organizational models in their pure form.   As modern MNEs design and adopt new structures in order  to optimize their ability to simultaneously achieve higher levels of global integration and local responsiveness, the traditional models no longer can be used accurately to characterize most MNEs.   Despite this fact, the traditional models are still useful to characterize extreme/ideal (pure) cases in the global integration/local responsiveness matrix and to capture some of the most salient characteristics of MNEs during the early stages of internationalization and globalization.   Additionally, empirical analysis corroborates the existence and usefulness of the multidomestic, global, and transnational models to characterize the most salient features of MNEs.   For instance, Harzing (2000) studied 166 subsidiaries of 37 MNCs headquartered in 9 different countries and concluded that Barltett and Ghoshal's typology (developed based on in-depth cases studies of nine MNEs) can be confirmed in a large-scale empirical setting (Harzing.00).


There are many reasons why having a typology  and models of organizational structures for MNEs is useful to academics, students, and executives (Dunning.01).   Typologies provide a manageable framework that reduces complexity and enables practitioners to study, explain, and design organizational strategies for MNEs.   To this end, in Table  I, we propose a more general typology to model MNEs at different stages in their globalization cycle (Harzing.00), and provide representative examples for each organizational form.   This typology includes the international exporter, traditional multidomestic, traditional global, modern multidomestic, modern global, transnational, and virtual.


 


 In addition to the structures we already described in earlier posts, we add the "virtual" form in order to model a new type of MNEs emerging in the 21st as a consequence of the globalization forces.   Specifically, the virtual form models ventures which focus exclusively on their core competencies and smartsource (outsourcing focused on value)  to global companies optimally positioned to provide services such as R&D, manufacture, production, industrial design, marketing, localization, distribution, and information brokerage.   The virtual form uses strategic alliances, external partnerships, mass collaboration, and dominant exchange strategies to achieve high levels of global integration and local responsiveness through co-operative strategies.   On a first approximation, the virtual model resembles the transnational form but uses external partners, global experts, opinion leaders and collaborators instead of corporate subsidiaries.   The virtual form tends to focus more on intangible assets rather than tangible/capital intensive assets.   This form can be used to model some modern MNEs that do not fit the multidomestic, global, or transnational framework such as of the many recent US startups in professional services, manufacture (e.g. medical device manufactures),  and dot-com firms (Porter.01). ]]></content:encoded></item><item><title>Transnational Model</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-10-10T20:55:20-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/e9254c1f2b5714be43863f12699db891-63.html#unique-entry-id-63</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/e9254c1f2b5714be43863f12699db891-63.html#unique-entry-id-63</guid><content:encoded><![CDATA[The transnational form is used to characterize MNEs that attempt to achieve high global integration and high local responsiveness.    As already pointed out, the limitations of the multidomestic and global structures led to the concept of transnational corporation (high localization/high global integration) proposed by Bartlett and Ghoshal, and widely accepted by the research community (Bartlett.00,Bartlett.92,Bartlett.88,Bartlett.87,Bartlett.87b, Harzing.00,Yip.94).   This organizational structure follows the N-form (network) as opposed to the M-form (multi-divisional) since it focuses on integration, combination, multiplication of resources and capabilities, and managing assets and core competencies as a network of alliances,  as opposed to functional or geographical division.   The ultimate objective is to have access and make effective and efficient use of all the resources the company has at its disposal globally, including both globalized knowledge and tacit localized knowledge.   A potential limitation of the transnational company is the fact that it requires management intensive processes (Ohmae.06a).   In any case, the transnational model is still primarily considered a mindset, idea, or ideal rather than an organization structure found on may MNEs, specially in manufacturing (Segal-Horn.99). 


- Matrix Position: high localization / high global integration. 


- Stage: developed stage of internationalization.


- Subsidiary role: local responsiveness, country/region specific strategies. 


- Center role: global integration, coordination, resource allocation, R\&D, knowledge transfer


- Management Decisions: bottom--down (differentiation) and top--down (integration), matrix structures, N-form.


- Technology \& Knowledge Transfer: knowledge transfer across borders. 


- Percentage of Foreign Sales: high. 


- Example: McKinsey, Cap Gemini Sogeti. ]]></content:encoded></item><item><title>Modern Global Model</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-10-10T20:54:14-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/2d89c3ef59347b422c8161379c3f0b81-62.html#unique-entry-id-62</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/2d89c3ef59347b422c8161379c3f0b81-62.html#unique-entry-id-62</guid><content:encoded><![CDATA[The modern global company follows the tradition of the old (pure) global form but it gives a more significant role to the country subsidiaries.   The central authority is responsible for achieving high global integration by providing 1) low cost sourcing platforms, 2) efficient factor costs, 3) global scale,  4) product standardization, 5) quality assurance,  6) global technology sharing and IT, 7) brand name, and 8) global corporate strategy.   Contrary to the traditional (pure) global model, the modern global MNE makes more effective use of the subsidiaries in order to become more locally responsive.   As traditional global firms evolve into modern global enterprises they tend to focus more on strategic coordination and integration of core competencies worldwide, and protecting home country control becomes less important.   Modern global corporations may disperse R&D, manufacture and production, and marketing around the globe.   This helps ensure flexibility in the face of changing factor costs for labor, raw materials, exchange rates, as well as hiring talent worldwide (Segal-Horn.99, Yip.96,Yip.91,Yip.91a,Yip.89,Yip.00,Yip.97a,Yip.88,Yip.96a). 


- Matrix Position: high global integration / medium localization. 


- Stage: developed stage of internationalization.


- Subsidiary role: local responsiveness, country/region specific strategies. 


- Center role: global integration, coordination, resource allocation, R\&D, knowledge transfer


- Management Decisions: bottom--down (differentiation) and top--down (integration)


- Technology \& Knowledge Transfer: knowledge transfer across borders. 


- Percentage of Foreign Sales: high. 


- Example: Gillette]]></content:encoded></item><item><title>Modern Multidomestic Model</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-10-08T20:52:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/6050bfb83e1972590b315df1c9cad1f8-61.html#unique-entry-id-61</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/6050bfb83e1972590b315df1c9cad1f8-61.html#unique-entry-id-61</guid><content:encoded><![CDATA[The modern multidomestic follows the tradition of the old  (pure) multidomestic but it gives a more significant role to the corporate headquarters.   As such, it is no longer a loose confederation of assets, but a MNE with a strong culture of operational decentralization, local adaptation, product differentiation, and local responsiveness.    Having disperse national subsidiaries with significant autonomy, a strong geographical dimension and empowered country managers help the modern multidomestics to maintain their local responsiveness and their ability to differentiate and adapt to local environments.   Contrary to the traditional multidomestic where the center had very little value added, in the modern multidomestic the center is critical to enhance the competitive strength of the multidomestic.   While the role of the subsidiary is to be locally responsive, the role of the center triangle is to enhance the global integration by developing global corporate and competitive strategies, play a significant role in resource allocation, selection of markets, developing strategic analysis, mergers and acquisitions, decisions regarding R\&D and technology matters, eliminating duplication of capital intensive assets, and knowledge transfer.   A representative example of the modern multidomestic is Nestle (Segal-Horn.99, Yip.96,Yip.91,Yip.91a,Yip.89,Yip.00,Yip.97a,Yip.88,Yip.96a).   In summary:


- Matrix Position: medium global integration / high localization. 


- Subsidiary role: local responsiveness, country/region specific strategies. 


- Center role: global integration, coordination, resource allocation, R\&D, knowledge transfer


- Management Decisions: bottom--down (differentiation) and top--down (integration).


- Technology & Knowledge Transfer: knowledge transfer across borders. 


- Percentage of Foreign Sales: high. 


- Example: Nestle.
]]></content:encoded></item><item><title>A Modern Typology of MNEs</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-10-07T20:51:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/68634be9a8a8809d9d55a32a1143004e-60.html#unique-entry-id-60</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/68634be9a8a8809d9d55a32a1143004e-60.html#unique-entry-id-60</guid><content:encoded><![CDATA[Given the limitations of each of the structures in terms of global competitiveness, most MNEs have re-evaluated their corporate and competitive strategies and re--structured in order to simultaneously become more globally integrated and locally responsive.   As MNEs attempt to optimize their global integration/local responsiveness trade--off (i.e. adopting a more "glocal" strategy) there is a certain degree of convergence, and the old traditional organizational forms are too "pure" in nature to accurate model most modern MNEs.   The inability of the traditional (pure) models of multidomestic and global models to accurately describe modern MNEs has led to the new models of modern multidomestic, modern global, and transnational.   These models can be briefly summarized as follows:]]></content:encoded></item><item><title>Limitations of the Traditional Organizational Structures</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-10-01T20:51:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/617946f9caaca53da62cc57c0f15200a-59.html#unique-entry-id-59</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/617946f9caaca53da62cc57c0f15200a-59.html#unique-entry-id-59</guid><content:encoded><![CDATA[As we pointed out in the previous posting, each of these organizational structures has limitations to compete in a global economy.   Briefly, the international exporter (low global integration/low localization) is not well positioned to compete in situations where either economies of scale or local responsiveness are critical.   The traditional multidomestic (low global integration/high localization) is not well positioned to exploit competitive interdependencies and global efficiencies, and consequently it is in significant disadvantage in situations where economies of scale and scope are critical.   Additionally, their inability to extract value from its center headquarters significantly limits their competitive advantage in global setting where corporate strategy, global integration, coordination, and knowledge transfer play a significant role.   Finally, the global company (low localization/high global integration) is not well positioned to compete in situations requiring critical local adaptation.   Perhaps even more important is the fact that it does not extract value from their subsidiaries including knowledge transfer, coordination, and business strategy, enabling them to make good strategic and tactical decisions. ]]></content:encoded></item><item><title>A Modern Typology of MNEs</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-09-15T20:49:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/79ccdb07ac1ff362f2ea674c929e280f-58.html#unique-entry-id-58</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/79ccdb07ac1ff362f2ea674c929e280f-58.html#unique-entry-id-58</guid><content:encoded><![CDATA[The organization of modern MNEs is more complicated than the old models of international exporter, multidomestic (Porter, 86), and global (Yip.89).   As a consequence of the intrinsic limitations of each of the pure structures as an optimal form to compete globally, MNEs evolved from these traditional forms into more sophisticated structures intended to combine the advantages of multidomestic and global structures.     Initially these led to the concept of transnational corporation (high localization/high global integration) developed and widely studied by Bartlett, Ghoshal, and other scholars (Bartlett.92,Bartlett.88,Bartlett.87,Bartlett.87b, Harzing.00,Yip.94).   However, the transnational model is still primarily considered a mindset, idea, or ideal rather than an organization structure found on many MNEs (Segal-Horn.99).]]></content:encoded></item><item><title>Traditional Global Model</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-09-14T20:48:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/fabf275b05af3152fea4048ee12831ca-57.html#unique-entry-id-57</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/fabf275b05af3152fea4048ee12831ca-57.html#unique-entry-id-57</guid><content:encoded><![CDATA[The traditional global company is the antithesis of the traditional multidomestic company.   The traditional global model is used to characterize MNEs with globally integrated operations designed to take maximum advantage of economies of scale and scope by following a strategy of standardization and efficient production (Yip.97,Yip.96,YYip.96a,Yip.98).   By globalizing operations and competing in global markets these companies aim to: 1) reduce cost of R&D, manufacture, production, procurement, and inventory; 2) improve quality by reducing variance, 3) enhance customer preference through global products and brands, and 4) obtain competitive leverage (Segal-Horn.99).   The power center, corporate strategy, resource allocation, and knowledge generation and transfer resides in the corporate headquarters.   In terms of the global integration/local responsiveness matrix, the pure global company occupies the position of extreme global integration and low localization.   Examples of pure global structures are found in Japanese MNEs during the 1970s (e.g.   Sony, Hitachi, Sharp, Toyota) and US companies (i.e.   Intel, TI, Coca-Cola, Gillette).   As in the case of the international exporter and traditional (pure) multidomestic model, the traditional (pure) global company represents an extreme ideal and an early organization structure.    In summary, the traditional (pure) global model can be characterized as follows:  


- Matrix Position: high global integration / low localization. 


- Stage: Early & more recent of internationalization, transitory.


- Subsidiary Role: minimal, distribution and operations


- Center Role: Global integration, corporate strategy, competitive strategy. 


- Management Decisions: top--down (from corporate headquarters to subsidiaries).


- Technology & Knowledge Transfer: kept at the headquarters, minimal knowledge transfer across borders. 


- Percentage of Foreign Sales: high. 


- Example: Japanese (i.e.   Sony, Hitachi, Shap, Toyota) and US companies (Intel, TI, Gillette). 


- Model Limitations: transitory organizational form, ideal conceptualization, nowadays few companies fit perfectly the pure global structure, inability to compete in environments requiring high local responsiveness and adaptation.]]></content:encoded></item><item><title>Traditional Multidomestic Model</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-09-12T20:45:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/8ae1c52a6bbff5c70017af4d28c8e8e8-56.html#unique-entry-id-56</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/8ae1c52a6bbff5c70017af4d28c8e8e8-56.html#unique-entry-id-56</guid><content:encoded><![CDATA[The traditional multidomestic model is used to characterize MNEs with a portfolio of independent subsidiaries operating in different countries as a decentralized federation of assets and responsibilities under a common brand name (Bartlett.87,Bartlett.87b,Bartlett.88).   The old or pure multidomestic form models companies that adopt country--specific strategies with little international coordination or knowledge transfer from the center headquarters.   The power center, business strategic decisions, resource allocation, decision making, knowledge generation and transfer, and procurement reside with each country subsidiary and the center adds very little value.    In terms of the global integration/local responsiveness matrix, the pure multidomestic organizational structure represents the extreme case of local responsiveness and localization, and low global integration.   Similarly to the international exporter form, the traditional multidomestic organizational structure is sometimes described as a historically early only, since this structure is not well--positioned to compete in a post--globalization environment where standardization, global integration, and economies of scale and scope are critical.   However, the pure multidomestic structure is still viable in situations where local responsiveness, local differentiation, and local adaptation are critical (Douglas.87,Douglas.73,Wind.89,Wind.74,Wind.73), while the opportunities for efficient production, global knowledge transfer, economies of scale, and economies of scope are minimal (Bartlett.87, Segal-Horn.99).   As in the case of the international exporter form, given the trends towards the globalization of markets (Levitt.84,Levitt.83),  the pure multidomestic company may be considered a transitory organizational structure in most cases.   An example of this structure and its limitations is Philips during the 1960 where its multidomestic organizational model made the autonomous country subsidiaries unable to effectively compete against global Japanese companies such as Sony, Sharp, and Hitachi.    In summary, the traditional (pure) multidomestic model can be characterized as follows:


- Matrix Position:  low global integration / high localization. 


- Stage: Early & more recent  of internationalization, transitory.


- Subsidiary Role: competitive strategy, tactical decisions. 


- Center Role: minimal,  cash dividends, global brand. 


- Management Decisions: bottom--down (from subsidiaries to corporate headquarters).


- Technology & Knowledge Transfer: kept at the subsidiary level, little knowledge transfer across borders. 


- Percentage of Foreign Sales: high. 


- Example: UK companies during post-war, Philips (1960s).


- Model Limitations: transitory organizational form, ideal conceptualization, nowadays few companies are pure multidomestic, inability to exploit competitive interdependencies and global efficiencies, duplication of resources.


\end{itemize}]]></content:encoded></item><item><title>International Exporter Model</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-09-11T20:44:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/13cd4b2779a8218a45dce694060186f1-55.html#unique-entry-id-55</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/13cd4b2779a8218a45dce694060186f1-55.html#unique-entry-id-55</guid><content:encoded><![CDATA[The international exporter is used as a model to characterize companies who are strongly dependent on their domestic sales and that export opportunistically.   As such, some scholars in the research community do not consider these companies to be MNEs, since their foreign sales are typically very low compared to their percentage of total sales and their international operations are often limited to sales outfits in foreign countries. 


International exporter companies have typically a well-developed domestic infrastructure and additional capacity to sell internationally.   Consequently, these companies may have aspirations to become MNEs by evolving into multidomestic, global, or transnational companies.   This organizational structure is generally considered to be unsophisticated, unsustainable, and transitory in nature.   In the short term,  this organizational form may be viable in certain situations where the need for localization and local responsiveness is very low (i.e. the home product can be sold internationally with very minor adaptations), and the economies of global standardization are also low.    The international exporter model is used to characterize many American companies in the post--war period.   Currently, the model may still be useful to characterize domestic companies in the early stages of internationalization (Vernon.66} that sell standardized products internationally where economies of scale and scope do not play a significant role, but it is important to recognize that this organizational form is transitory in nature and consequently can only be used to describe a given company for a limited period of time (Segal-Horn.99).   In summary, the international exporter model can be characterized as follows:


-Matrix Position: low global integration / low localization. 


-Stage: Early stage of internationalization, transitory.


-Subsidiary Role: minimal, distribution.


-Center Role: corporate and competitive strategy and tactical decisions. 


-Management Decisions: top--down (from corporate to subsidiaries).


-Technology & Knowledge Transfer: from corporate center to subsidiaries. 


-Percentage of Foreign Sales: low. 


-Example: US companies during post-war. 


-Model Limitations: transitory organizational form, inability to exploit competitive interdependencies and global efficiencies, inability to exploit local differences. 
]]></content:encoded></item><item><title>Introduction to International Corporate Structures</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>MNEs </category><dc:date>2007-09-10T20:41:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/31e7fd4122cfce8f485415a9a9b97d7e-54.html#unique-entry-id-54</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/31e7fd4122cfce8f485415a9a9b97d7e-54.html#unique-entry-id-54</guid><content:encoded><![CDATA[The typology of international corporate structures is primarily based on the global integration/local responsiveness framework.    Bartlett, Ghosahl, Prahalad, Stopford, Teece, Yip, Doz, and other scholars in international management have traditionally categorized the international corporate structure of multinational enterprises (MNEs) according to four possible models: international exporter, multidomestic, and --more recently-- transnational (Bartlett.88,Bartlett.87,Bartlett.87b,,Bartlett.92,94,Yip.91,Yip.91a,Yip.00}).   These traditional organizational models of MNEs occupy well-defined positions in the global standardization/local adaptation matrix and are useful idealizations to describe and capture the most salient characteristics of each of the different organizational structures traditionally adopted by MNEs.   In this paper we review the traditional organizational models for multinational enterprises (MNEs), discuss their usefulness as ideal models to study the possible organizational structures of MNEs according to the global integration/local responsiveness framework, and point out some of their limitations as accurate characterizations of modern MNEs. ]]></content:encoded></item><item><title>The Experience Economy</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-10-10T02:55:27-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/0b1b3823242d132cb79a5570dce82a91-53.html#unique-entry-id-53</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/0b1b3823242d132cb79a5570dce82a91-53.html#unique-entry-id-53</guid><content:encoded><![CDATA[Pine and Gilmore have argued that the "experience economy" represents the current state of economic development in advanced nations: from "extracting" commodities, to "manufacturing" goods, to "delivering" services, to "staging" performances. 


The following table lists the characteristics of each stage of economic development:


-Offering: Commodities, Goods, Services, Experiences


-Economy: Agrarian, Industrial, Service, Experience


-Function: Extract, Manufacture, Deliver, Stage


-Nature: Fungible, Tangible, Intangible, Memorable


-Attribute: Natural, Standardized, Customized, Personal


-Supply Method: Bulk, Inventoried, On-Demand, Revealed over duration


-Seller: Trader, Manufacturer, Provider, Stager


-Buyer: Market, User, Client, Guest


-Demand: Characteristics, Features, Benefits, Sensations


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Drucker, "Innovation and Entrepreneurship" 


[4] Levitt, "The Industrialization of Service"


[5] Heskett, "The Service Management Wheel"


[6] Pine and Gilmore, "Economic Functions" ]]></content:encoded></item><item><title>Service Marketing</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-10-10T02:42:32-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/e8f849bbe42e94fce744c947074ad0c6-52.html#unique-entry-id-52</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/e8f849bbe42e94fce744c947074ad0c6-52.html#unique-entry-id-52</guid><content:encoded><![CDATA[In the Triad nations (Ohmae) services account to 60% to 70% of national output.   Services are currently the fastest growing part of international trade.   In affluent societies, services tend to provide higher marginal utility than goods. 


It is sometimes difficult to differentiate products from services, since we typically encounter a product-service continuum.   The following characteristics increase the service component of the continuum:


...Intangible: physical nature (tangibility) is less important


-2.   Perishable: inventories cannot be kept


-3.   Heterogeneous: services are "performances" and no two performances are identical.


...Inseparable: Production and consumption take place simultaneously. 


Lovelock proposed a series of questions to help classify services and gain strategic marketing insight. 


...What is the nature of the service?


...What type of relationship does the service organization have with its clients?   (i.e. membership, no formal relationship, etc). 


...How much room does the service organization has for client customization?


...What is the nature of the demand?


...How is the service delivered?


The delivery of services poses serious difficulties for managers.   Of special importance is managing of personnel/employees, quality control, and productivity.   Levitt proposed several solutions in his seminal paper "The Industrialization of Service" (HBR).   In this line, Heskett proposed the "The Service Quality Wheel." 


...[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Drucker, "Innovation and Entrepreneurship" 


[4] Levitt, "The Industrialization of Service"


[5] Heskett, "The Service Management Wheel"
]]></content:encoded></item><item><title>Components of the Marketing Environment</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-10-10T02:32:06-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/3a4ecc463a94376e3554f1c044dc85db-51.html#unique-entry-id-51</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/3a4ecc463a94376e3554f1c044dc85db-51.html#unique-entry-id-51</guid><content:encoded><![CDATA[The marketing environment can be divided into the micro-enviornment and the macro-environment.   The competitive forces identified by Michael Porter in his seminal works "Competitive Strategy" (1980) and "Competitive Advantage" (1985) offer an instructive framework to study the components of the micro-envioronment and the factors that determine the competitive structure of the industry. 


Porter five micro-enviornment forces include: 1) intensity of the industry competition, 2) bargaining power of suppliers, 3) bargaining power of buyers, 4) threat of new entrants, and 5) threat of substitute products. 


Macro-enviornmental factors include PEST=Political, Economical, Societal, Technological, as well as legal and regulatory. 


Both micro- and macro-environmental factors can change slowly or suddenly (disruptively) and have significant consequences for companies.   The ability of companies to change fast or lead change (Kotter) is nowadays a  significant competitive advantage. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Drucker, "Innovation and Entrepreneurship" 


[4] Porter, "Competitive Strategy" (1980)


[5] Porter, "Competitive Advantage" (1985)


[6] Kottler, "Leading Change" ]]></content:encoded></item><item><title>Segmentation and Targeting</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-10-10T02:16:11-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/1ca41f5fa3d5788c25e65eb029d0e127-50.html#unique-entry-id-50</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/1ca41f5fa3d5788c25e65eb029d0e127-50.html#unique-entry-id-50</guid><content:encoded><![CDATA[Market segmentation is the process through which the total market is broken down to create distinctive groups.   Kotler defines a market segment as "consumers that respond in a similar way to a given set of marketing stimuli." 


The concept of segmentation was first introduced by Wendell Smith ("Product Differentiation and Market Segmentation as Different Alternative Strategies").   Segmentation is disaggreative in its effects.   It consists of viewing a heterogeneous market as a number of smaller homogeneous markets.   Thus, the first step in the segmentation process is to "segment" the market so that we can target the segments we want to pursue (i.e. determine in what markets we want to compete).   Bases for segmentation include: 


-1.   Demographics: age, sex, religion, marital status, socio-economic, etc.


-2.   Geographics: location, climate, terrain, population density


-3.   Psychographics: AIO=Activities, Interest, Opinions & VALS=values, attitudes and lifestyle (need-driven, outer-driven, inner-driven)


-4.   Behavioral


Regardless of the base for segmentation used, a target segment should be: 1) identifiable (well-defined), 2) economically reachable, 3) large enough to be profitable, and 4) more homogenous than the original market. 


Doyle points out reasons to segment.   These include: 1) targeted communications, 2) enhanced customization and customer service, 3) better matching of the customer needs, 4) enhanced profits, 5) enhanced opportunities for growth, 6) stimulation of innovation, and 7) market segment share. 


Following the identification of the segmentation variables, a firm must decide those segments it aims to target and the positioning strategy. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Drucker, "Innovation and Entrepreneurship" 


[4] Smith, "Product Differentiation and Market Segmentation as Alternative Strategies"]]></content:encoded></item><item><title>Positioning</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-10-10T02:03:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/e7065b0b0822cd6d4e6c97216c4e98ea-49.html#unique-entry-id-49</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/e7065b0b0822cd6d4e6c97216c4e98ea-49.html#unique-entry-id-49</guid><content:encoded><![CDATA[Positioning means different things to different people.   Some marketers consider it to be a segmentation decision while others view it as an image decision.   The term positioning differs from the older term "image" in that positioning implies a frame of reference (e.g. position), namely that of the competitors. 


Positioning decisions are critical as they can be central to a consumer's perception and choice decision.   Ries and Trout ("Positioning: The Battle for Your Mind") define positioning as what is created in the minds of the target customers.   Positioning is about image of the product in the mind of the selected target group vis-a-vis competing firms.   Thus, positioning relates to the personality of the product as well as to the image and brand. 


Ogilvy defines positioning as "what the product does, and who it is for" ("Ogilvy on Marketing").   The objective is to evoke an emotional response. 


The steps to an effective positioning strategy include:


-1.   Identify the competitors: primary & secondary


-2.   Determine how competitors are perceived by the target segment


-3.   Determine the positioning of the competitors


-4.   Analyze the customers, their needs, wants, and demands


-5.   Select a unique and differentiated positioning


-6.   Monitor the position


Positioning strategies include: 1) by attribute, 2) price/quality, 3) use or application, 4) product user, 5) product class, and 6) competitor. 


...[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Ries & Trout, " Positioning: The Battle for Your Mind" (1981)


[4] Ogilvy, "Ogilvy on Marketing" 
]]></content:encoded></item><item><title>New Product Development</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-09-25T01:51:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/c53812c6901cb2f27b993e6506da67a2-48.html#unique-entry-id-48</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/c53812c6901cb2f27b993e6506da67a2-48.html#unique-entry-id-48</guid><content:encoded><![CDATA[An important point to keep in mind when considering issues related to new product development is the fact that most "new products" are in fact "not new."   Firms typically consider 1) New product lines (which other companies may already have), 2) continuous improvement to existing products, and 3) additions to product lines as "new products."


Two important concepts related to new product development are the "adoption" and "diffusion" processes.   The adoption process involves the following steps: 1) awareness, 2) interest, 3) evaluation, 4) trial, and 5) adoption.   The diffusion process divides the adopters into 1) innovators,  2) early adopters, 3) early majority, 4) late majority, and 5) laggers. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Drucker, "Innovation and Entrepreneurship" ]]></content:encoded></item><item><title>Product Life Cycle (PLC)</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-09-21T01:41:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/a2769db7b2db4d111f6021a051027879-47.html#unique-entry-id-47</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/a2769db7b2db4d111f6021a051027879-47.html#unique-entry-id-47</guid><content:encoded><![CDATA[The concept of product life cycle (PLC) is very prominent in the field of marketing.   Briefly, the PLC concept relates the unit sales of a product versus time as the product goes through the different stages: 1) introduction, 2) growth, 3) maturity, and 4) decline.   The theoretical curve of the unit sales vs time is S-shaped due to the nature of the diffusion and adoption of innovations.   While the PLC concept is widely used, some marketing scholars have pointed out important practical limitations of the PLC concept (Doyle).   These are:


-1.   Undefined concept. 


-2.   No common curve shape (different products have different shapes). 


-3.   Unpredictable turning points 


-4.   Unclear implications


-5.   No Exogenous (the turning points are typically due to internal management decisions as opposed to external market forces). 


-6.   Product oriented as opposed to customer oriented. 


It is also important to note that the PLC does not apply well to brands. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Drucker, "Innovation and Entrepreneurship" 


[4] Robergs, "Diffusion of Innovations" 
]]></content:encoded></item><item><title>Innovation</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-09-20T01:33:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/97a1b1cc13014b6e189e031f43a8dc9d-46.html#unique-entry-id-46</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/97a1b1cc13014b6e189e031f43a8dc9d-46.html#unique-entry-id-46</guid><content:encoded><![CDATA[Innovation is identifying consumer needs, and satisfying them with goods or services in a new, creative, and insightful way that generates a profit.   The main sources of innovation are 1) customer needs, and 2) technological developments.   Both are essential. 


Peter Drucker points out that the secret of innovation is not to try to predict the future.   The secret is to be able to react more quickly to market opportunities, based on a deep understanding of the present.   In his seminal book "Innovation and Entrepreneurship" (1985) he stated this as predicting the future that has already happened. 


It is also important to note that innovation is not invention.   Innovation is a marketing concept while invention is an engineering concept. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Chong, "International Marketing Study Guide -- U.London (External)"


[3] Drucker, "Innovation and Entrepreneurship" ]]></content:encoded></item><item><title>Brand Development</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-08-10T01:21:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/86992a99920087bb015a4a69dfefc3d1-45.html#unique-entry-id-45</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/86992a99920087bb015a4a69dfefc3d1-45.html#unique-entry-id-45</guid><content:encoded><![CDATA[Levitt and Doyle stress that building powerful brands starts with a strong/quality product (tangibles).   When a quality product targets a well-defined segment, is well-positioned, and satisfies the needs of customers it is possible to take the next step and develop the "basic brand" -positive associations, design, benefits, etc.   The basic brand can be further developed into an "augmented brand" by exceeding the customer expectations through service (enlarging the core product), and this into a "power/potential brand" that will provide additional emotional/psychological benefits. 


Kapfferer provides a framework for "brand building:" 


-Attributes: rational product features


-Functional Benefits: rational expectations as a result of using the brand


-Emotional Rewards: emotional benefits from using the brand


-Values of Users: what the users of the brand care about the most


-Personality: image of the brand expressed in human terms


-Essence: the "soul" of the brand.   The single idea that fuses key emotional and functional benefits. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Aaken, "Building Strong Brands"


[3] Aaken, "Brand Leadership"


[4] Chong, "International Marketing Study Guide -- U.London (External)"


[5] Kapfferer, "Strategic Brand Management"


[6] Levitt, "Marketing Success Through Differentiation - or Anything" HRB]]></content:encoded></item><item><title>Brand Valuation</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-08-11T01:11:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/7eec45bc677ce853c2c4514fcbe0f126-44.html#unique-entry-id-44</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/7eec45bc677ce853c2c4514fcbe0f126-44.html#unique-entry-id-44</guid><content:encoded><![CDATA[Brand valuation emphasizes that the most valuable assets a firm has are not tangible, rather intangible assets such as brands, trademarks, know-how, management expertise, etc.   Brands are becoming increasingly respected as enduring assets.   However, in most cases the full value of a brand is only realized when brand portfolios are sold or licensed (e.g.   Gillette to P&G).   Accounting standards typically do not recognize the market value of intangible assets (i.e. these are not noted in the balance sheet).   This is because it is difficult to provide brand valuations that are objective and verifiable. 


Aaken suggest a few possible approaches for brand equity valuation:


-1.   Study the price premium generated by the brand (i.e. compare the price of the branded product against unbranded equivalent products). 


-2.   Use the market value of the firm (i.e. stock price) minus all the tangible assets the firm owns. 


-3.   Estimate the discounted present value of future earnings attributed to brand-equity. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Aaken, "Building Strong Brands"


[3] Aaken, "Brand Leadership"


[4] Chong, "International Marketing Study Guide -- U.London (External)"
]]></content:encoded></item><item><title>Package Design</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-08-10T01:05:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/9deafd0d7af38e3769928ee0f374fd45-43.html#unique-entry-id-43</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/9deafd0d7af38e3769928ee0f374fd45-43.html#unique-entry-id-43</guid><content:encoded><![CDATA[The importance of a good package design has been noted by marketing scholars as an often overlooked aspects of product decisions.   Good packaging is a critical element in the positioning of the product.   Why?   Because many customer decisions are made at the point of purchase (e.g. grocery store purchase).   Good packaging design helps 1) differentiate the product and 2) it gives it self impact. 


Coley Porter Bell stresses that "visual equity," like brand equity, translates into goodwill (i.e. intangible assets of economic value).   Visual equity should:


-1.   Be a trigger for recognition and purchase. 


-2.   Be Differentiated. 


Package design involves considerations on 1) symbol, 2) signature, 3) color, 4) shape, 5) style, and 6) slogans.   A good illustrative example of great packaging is Apple Inc. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Aaken, "Building Strong Brands"


[3] Aaken, "Brand Leadership"


[4] Chong, "International Marketing Study Guide -- U.London (External)"
]]></content:encoded></item><item><title>Name Development</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-07-17T00:58:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/cd3f860635339d9cb8da68ce362bf0d4-42.html#unique-entry-id-42</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/cd3f860635339d9cb8da68ce362bf0d4-42.html#unique-entry-id-42</guid><content:encoded><![CDATA[According to Aaker, it is wasteful to attempt to community brand attributes and benefits until a name is established in which to associate attributes.   The name is central to the personality of a brand or business.   Several name qualities are recommended.   The name should:


-1.   Suggest something about the "benefits" 


-2.   Suggest product qualities/features/attributes or associations


-3.   Be easy to pronounce, recognize, and remember


-4.   Be distinctive


-5.   Should not carry poor meanings in other languages


The quality of a name is typically assessed using four tests: 1) the association test, 2) the learning test, 3) the memory test, and 4) the preference test. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Aaken, "Building Strong Brands"


[3] Aaken, "Brand Leadership"


[4] Chong, "International Marketing Study Guide -- U.London (External)"]]></content:encoded></item><item><title>Brand Equity</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-07-11T00:42:00-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/0cce422da56f96bf57f41b249300ae6d-41.html#unique-entry-id-41</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/0cce422da56f96bf57f41b249300ae6d-41.html#unique-entry-id-41</guid><content:encoded><![CDATA[Brands have immense value to firms.   They are critical to differentiate the company's products and services and protect them against becoming a commodity.   It is important to distinguish between name recognition and brand equity.   McKinsey distinguishes between: 1) Names -name recognition, 2) Brands -names become brans when consumers associate a set of intangible and tangible benefits to the product/firm, and 3) Power Brands -brands that create strong emotional bonds, strong associations, customer loyalty, and yield price premiums.   Power brands have personality, presence, and create strong emotional/psychological bonds. 


Brand equity requires differentiation and a strong alignment between what the company communicates about the brand with what it actually delivers.   Having a powerful brand is critical to protect the firm and customers against imitators. 


Aaker notes that brands have assets and liabilities associated with them.   These can be related to 1) customer loyalty, 2) name recognition, 3) perceived quality, 4) brand associations in addition to perceived quality, and 5) other proprietary brand assets.   Important points to consider include the trade dress, design patents, trademarks, copyrights, and other IP protection. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Aaken, "Building Strong Brands"


[3] Aaken, "Brand Leadership"


[4] Chong, "International Marketing Study Guide -- U.London (External)"
]]></content:encoded></item><item><title>Identity and Image</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-07-10T20:33:44-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/50183bab0129a8bd6dbdd99e631d5c46-40.html#unique-entry-id-40</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/50183bab0129a8bd6dbdd99e631d5c46-40.html#unique-entry-id-40</guid><content:encoded><![CDATA[Brands are at the heart of business strategy.   In fact, one of the main objectives of marketing is to decommoditize the company offer.   If the offer (product or service) is perceived as being the same as those of the competitors, then the consumers will be indifferent and will choose the cheapest product.   Companies that are forced to compete on price alone (i.e. the product is a commodity) rarely make satisfactory profits. 


The purpose of marketing is to create a preference for the company's brand.   This intangible asset is critical to adding value to the firm because identity and image are central to the positioning of products in various markets.   Identity must have two facets: 1) purpose and 2) sense of belonging.   A clear identity becomes a yardstick against products and company actions are measured. 


It is important to realize that identity is more than a slogan.   It must be visible, tangible, and all embracing.   The company's identity, standards, culture and values are reflected by the products, services, buildings, communications, etc. 


References:


[1] Doyle, "Marketing Management & Strategy"


[2] Aaken, "Building Strong Brands"


[3] Aaken, "Brand Leadership"


[4] Chong, "International Marketing Study Guide -- U.London (External)"]]></content:encoded></item><item><title>Globalization and Marketing&#xa;&#xa;</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Marketing</category><dc:date>2007-06-24T21:50:14-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/d29d059148d4dfc2ac95d6d257417efa-39.html#unique-entry-id-39</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/d29d059148d4dfc2ac95d6d257417efa-39.html#unique-entry-id-39</guid><content:encoded><![CDATA[Globalization -the fact that our economic systems and culture are networked as part of a global system- has significance in marketing.   For instance, Theodore Levitt made the case that since the world is becoming standardized and homogenous companies must adapt (The Globalization of Markets, Harvard Business Review).   According to Levitt, companies have the opportunity to offer the same products everywhere and run global marketing campaigns (i.e. standardized campaigns).   He attributes the main force driving this trend to technology and the fact that human beings desire similar things.


Critics to Levitt, such as Douglas and Wind, point out that standardization is only one of the options available to enter foreign markets.   Levitt's thesis applies particularly well to upscale markets and especially to certain groups such as young people interested in global brands, business executives, and wealthy individuals (e.g. items such as Rolex, BMWs, Jaguars, Upscale personal items, etc).   Additionally, mass appeal brands such as Coca-Cola, Levis, Nike, Apple, etc have unique opportunities for global campaigns and standardization.   Nevertheless, Douglas and Wind, consider these examples exceptions rather than the rule. 


Despite the fact that globalization plays a significant role on companies some authors such as Yao-Su Hu caution that the sources of competitive advantage of firms still typically lie in the home nation, and foreign sources often can only supplement national sources but are not sufficient as a substitute.   According to Hu, global or stateless corporations are national firms with international operations. 


References:


[1] T.   Levitt.   "The Globalization of Markets."   HBR 1960


[2] T.   Levitt.   "The Pluralization of Culture."   HRB 1988


[3] S.   Douglas and Y.   Wind.   " The Myth of Globalization."   Columbia Journal of World Business 1987


[4] Y.   Hu.   "Global or Stateless Corporations Are National Firms with International Operations" California Management Review 1992]]></content:encoded></item><item><title>What three entries may qualify for small entity status?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Patent Law</category><dc:date>2007-05-09T19:45:40-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/755ffe2b419fd95812d91b9bab0b7898-35.html#unique-entry-id-35</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/755ffe2b419fd95812d91b9bab0b7898-35.html#unique-entry-id-35</guid><content:encoded><![CDATA[Qualifying small entities can pay a reduced rate fee for their patent application if they file a small entity declaration.   For the purposes of determining the patent application fees, small entity  are defined by the USPTO as (1) independent inventors, (2) small business concerns (i.e. a business with 500 or less employees during a fiscal year), and (3) nonprofit organizations.   In order to qualify the the exception, independent inventors must maintain the patent rights or transfer the rights to a small business concern or nonprofit organization.   The small entity status does not apply in cases where the small entity (independent inventor, small business concern, or nonprofit organization) is transferring the rights to an entity that does not qualify as an small entity.   The reduced filing and maintenance fees are intended to help promote innovation by small entities. 


References:


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Manual of Patent Examining Procedure, 8th Edition ]]></content:encoded></item><item><title>How does the US patent system differ from first-to-file systems?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Patent Law</category><dc:date>2007-05-09T10:02:58-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/6e6f4197cad4ba236111c4452d009b48-33.html#unique-entry-id-33</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/6e6f4197cad4ba236111c4452d009b48-33.html#unique-entry-id-33</guid><content:encoded><![CDATA[First-to-file patent systems such as the requirements followed in the European Union place more importance on the filing date than the actual date when the invention was conceived.   In the US, the PTO determines the priority between two applications by considering the invention date as well as the filing date.   Thus, the USPTO can be considered to follow a "first-to-invent" doctrine.   An inventor can publicly disclosure the invention (i.e. demonstrating that the invention has been fully conceived) and wait to file a patent for up to a year in the US.   This is not the case in Europe since any public disclosure is considered to be prior art.   Consequently, only the filing date matters.   Article 60(2) of the European Patent convention (EPC) awards priority to the applicant that first files the invention.    Under first-to-file patent systems inventors are more pressured to prepare and file the application as soon as possible in order to gain the IP protection for their invention. 


References:


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Manual of Patent Examining Procedure, 8th Edition 


[4] The European Patent Convention]]></content:encoded></item><item><title>What is the one-year rule?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Patent Law</category><dc:date>2007-05-09T09:14:50-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/874912ee2802a38923c533ba23ecf6c5-32.html#unique-entry-id-32</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/874912ee2802a38923c533ba23ecf6c5-32.html#unique-entry-id-32</guid><content:encoded><![CDATA[The one-year rule, also known as the one-year grace period or on-sale bar,  is a doctrine that prevents an inventor for acquiring patent protection if the application is filed more than one year of the following: 1) any public use of the invention by the inventor, a sale of the invention, an offer of sale, or public use of the invention in the United States, OR 2) any description of the invention by the inventor in a published document (i.e. a printed publication) in any country.   This enables inventors to market or commercialize their inventions for up to a year and decide whether or not they want to seek patent protection.   After the one-year period, the invention becomes public domain and is not eligible for patent protection since it is considered to be prior art.   In general, disclosure under a signed confidentiality agreement is not considered to be public disclosure. 


In 1998 the Supreme Court established a two-part test (Plaff vs Wells) to determine the commencement of the on-sale bar.   According to this test 1) there must be an offer for commercial sale -not experimentation-, and 2) the invention must be ready for patenting (i.e. it must be reduced to practice or fully documented so that a person skilled in the art could create a working version of the invention). 


For the purposes of patent law, a printed publication is considered to be any method of recording information such as paper, hard-drive, CD/DVD, microfilm, etc.   If the printed publication contains a full disclosure of the invention (i.e. a description with enough detail that would enable a person skilled in the art to create a working version of the invention), the inventor will be barred from patent protection if the application is filed after a year of the date of publication.   For the purposes of patent law, public disclosure is considered to take place once there is public accessibility to the printed publication.   For instance, in the case of a doctoral dissertation public disclosure is considered to be the date when the university catalogs the dissertation and makes it available to the public.   In the case of peer-reviewed journals, the date of publication is typically considered to be the date when the paper get published (i.e. available to the public) but depends on the specific editorial policies of the specific journal.   In any case, it is a good idea to file for a provisional patent before any public disclosure. 


Compared with other countries, the grace period  by the USPTO is very generous.   For instance, the European Patent Office requires "absolute novelty" (i.e. any public disclosure would prevent the inventor for acquiring patent rights).    Article 54(2) of the European Patent Convention (EPC) defines prior art to include "everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application."


References:


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Manual of Patent Examining Procedure, 8th Edition 
]]></content:encoded></item><item><title>What are the four requirements for a utility patent?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Patent Law</category><dc:date>2007-05-08T23:35:27-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/a13aa99750f2284ebc0cb28b41b978c4-31.html#unique-entry-id-31</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/a13aa99750f2284ebc0cb28b41b978c4-31.html#unique-entry-id-31</guid><content:encoded><![CDATA[Utility patents are granted for inventions that can be described or categorized as:


-Machines (i.e. a device that accomplished a specific task -e.g. an engine)


-Articles of Manufacture (i.e. a single object without movable parts or equivalent -e.g. chair, pencil)


-Processes (i.e. a method of accomplishing a result through a series of steps involving physical or chemical interactions). 


-Compositions (i.e. a combination of chemical or other materials). 


-New Uses of machines, articles of manufacture, processes, or compositions. 


The four requirements for a utility patent are:


1.   The invention must fall within one of the statutory classes


2.   The invention must be useful.


3.   The invention must be novel. 


4.   The invention must be nonobvious. 


By statutory classes it is meant that the patent is a machine, process, manufacture, composition, or any new or useful improvement of these.   The USPTO regards an invention as useful when it is capable of accomplishing the task it was designed for (i.e. the invention must work).   Thus, when filing a patent application it is important to demonstrate that the invention works as intended and therefore has utility.   Novelty is a statutory requirement of the US Patent law.   By novel it is meant that it differs in some specific way form prior art (i.e. existing knowledge in the public domain or previous patents).   Finally, the invention must not be considered to be obvious by people trained in the art. 


References:


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Manual of Patent Examining Procedure, 8th Edition 
]]></content:encoded></item><item><title>Who is permitted to prepare a patent application&#x2c; besides the inventor?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Patent Law</category><dc:date>2007-05-08T22:58:35-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/bf8b7a8e3463f01559da61692e012404-30.html#unique-entry-id-30</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/bf8b7a8e3463f01559da61692e012404-30.html#unique-entry-id-30</guid><content:encoded><![CDATA[The US Patent and Trademark Office (PTO) has established a certification process that involves taking an examination (the Patent Agent's Exam) after having obtained an approved college degree in engineering or science.   Both attorneys (i.e. people that have completed a law degree and have passed the bar examination in a state) and nonattorneys may take the exam as long as they have a college degree in engineering or science that meets the PTO requirements.   A Patent Attorney is a lawyer with adequate technical background (i.e. in possession of a college degree in engineering or physical sciences) that has passed the USPTO Patent Exam in addition to the bar examination in a given state.   On the other hand, a Patent Agent is a nonattorney with adequate engineering/scientific preparation that has passed the USPTO Exam.   Patent Agents can prepare patent applications on behalf of inventors, file patent applications, respond to USPTO office actions (i.e. letters), and participate in the amendment of the applications.   In summary, a Patent Agent is a licensed professional certified by the USPTO to prepare and prosecute patent applications.   The difference between a Patent Agent and a Patent Attorney is that a Patent Agent cannot advise the inventors regarding the legal consequences that may arise from ownership of the IP.   For instance, it cannot provide legal advise regarding how the ownership rights may be affected in the case of a divorce, for the purposes of making a will, or regarding the terms of a licensing contract.   These legal issues outside the scope of patent law require the professional counsel of an attorney. 


Information regarding the USPTO Patent Exam can be found at http://www.uspto.gov/go/dcom/gcounsel/oed.htm.   Briefly, this site includes information regarding the requirements for registration, examples of past exams, and result statistics.   Current examinations are based on the 8th Edition (Rev. 2) of the Manual of Patent Examining Procedure (MPEP).   The passing rate in the last exam was 58.2%.   There are many firms that offer training services, educational programs, and self-study materials for the Patent Bar Exam. 


References:


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Manual of Patent Examining Procedure, 8th Edition ]]></content:encoded></item><item><title>What is the difference between TM and SM?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2007-05-06T00:26:08-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/8e3236d3ae8a026c8cf6a80415a69952-29.html#unique-entry-id-29</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/8e3236d3ae8a026c8cf6a80415a69952-29.html#unique-entry-id-29</guid><content:encoded><![CDATA[TM means "trademark", while SM denotes  "service mark".   Trademarks are primarily used on products (i.e. goods), while service marks are employed to label services.   Both TM and SM can be used prior to registration with the federal trademark office (USPTO).   Once a trademark or a service mark is registered, the (R) in a circle is used to indicate that the trademark has been registered.   The use of the symbols TM (trademark for goods) and SM (service mark for services) is recommended to claim the rights on unregistered marks that have not been used by others in commerce. 


References:


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>Why is it necessary to make a domain name search for a potential trademak?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2007-05-05T14:28:57-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/f684b445959fefedb6cf53e11233a8a8-28.html#unique-entry-id-28</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/f684b445959fefedb6cf53e11233a8a8-28.html#unique-entry-id-28</guid><content:encoded><![CDATA[Domain name registration in .com, .net, .org (i.e. domains open to any kind of registrant) follows a first-come-first served policy.   Thus, when deciding on a mark it is often a good idea to search for potential conflicting trademarks by researching domain names that use the mark.   The unavailability of a domain name may indicate the existence of a conflicting trademark and it will limit the ability to differentiate products and services. 


The availability of domain names can be researched at www.whois.net.   WHOIS is a searchable database maintained by registries and registrars that contains information about domain name registrations in the .com, .net, .org, .edu, and ISO 3166 country code top-level domains. 


While legally registered domain names can pose a problem for new trademarks, it is also important to recognize that a similar issue is at work when choosing a domain name.   It is the domain name registrant&rsquo;s responsibility to make sure that the domain does not infringe or violate someone the rights of any third party (including trademark rights).


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Lanham Act of 1988. 


[4] Uniform Domain Name Dispute Resolution Policy (ICANN)
]]></content:encoded></item><item><title>For what activity does the Lanham Act provide criminal penalties?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2007-05-05T13:51:45-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/53d0324a71c432cc289cb7633051940e-27.html#unique-entry-id-27</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/53d0324a71c432cc289cb7633051940e-27.html#unique-entry-id-27</guid><content:encoded><![CDATA[Criminal penalties are applicable in severe trademark infringement cases involving counterfeiting of products.   Counterfeiting is considered to be an extreme form of trademark infrigmement since the infriger knowlgy takes advantage of the trademark, bandname, and goodwill of a firm to deliverately create counterfeit products (i.e. lower quality immitations) for the purpose of seeking economic gain.   The Trademark Counterfeiting Act of 1984 and the Anticounterfeiting Consumer Protection Act of 1996 address the problem of trafficking in countefeit trademarked goods and the distribution of imitations of well-known trademarked mechandize.   According to these Acts "(w)hoever intentionlly traffics or attempts to traffic in goods and services and knowingly uses a counterfait mark on or in connection with such goods or services" is guildty of a felony.   These acts lso ammend the Lanham Act to provide stronger civil penalties in cases involving counterfeiting. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Acceptable Identification of Goods and Services Manual  


[4] Trademark Examiners Manual of Procedure (TMEP) 


[5] International Schedule of Classes of Goods and Services.


[6] Lanham Act of 1988. 


[7] Trademark Counterfeiting Act of 1984


[8] Anticounterfeiting Consumer Protection Act of 1996
]]></content:encoded></item><item><title>What system of classification of goods and services is presently used for trademarks?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2007-05-05T12:39:18-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/fb7d4592224e7550741bc49c2037fa21-26.html#unique-entry-id-26</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/fb7d4592224e7550741bc49c2037fa21-26.html#unique-entry-id-26</guid><content:encoded><![CDATA[Goods and services are classified according to a numerical system of international classification known as the International Schedule of Classes of Goods and Services.   For instance, class 35 corresponds to "Advertising and Business" services and class 12 corresponds to "Vehicles; apparatus for locomotion by land, air, or water" goods.   This classification is applicable to trademarks filed after September 1, 1973.   For to this date, the US Classification System was used for categorization.


In addition to the classification of goods and services, trademark applicants must provide an identification and description of the services beyond the scope of the descriptions listed in the Intenational Classification of Goods and Services document.   The USPTO Acceptable Identification of Goods and Services Manual  and the Trademark Examiners Manual of Procedure (TMEP) are valuable is a valuable tools to help applicants identifying goods and sevices. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Acceptable Identification of Goods and Services Manual  


[4] Trademark Examiners Manual of Procedure (TMEP) 


[5] International Schedule of Classes of Goods and Services.]]></content:encoded></item><item><title>Why it is necessary to evaluate the non-English meaning of trademarks?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2007-05-05T12:04:26-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/3e11b2cb795291b91cd24713a66061f6-25.html#unique-entry-id-25</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/3e11b2cb795291b91cd24713a66061f6-25.html#unique-entry-id-25</guid><content:encoded><![CDATA[When choosing a trademark based on an English word or group of words, it is necessary to evaluate non-English translations of the trademark because these may be considered confusingly similar to registered trademarks in other languages.   Similarly, word marks in languages other than English must also be evaluated carefuly since consumers in the United States may be familiar with marks that match the English equivalent of the foreign term.   For instance, consider a company that has registered the mark "Arrow" in the United States.   If another company tried to use the mark "Flecha" (the Spanish translation of Arrow) this may pose a problem (e.g.   Red Bull and Toro Rojo). 


In addition to the legal issues associated with potential translations of trademarks, there are also important marketing considerations involved.   For instance, a direct translation of an English word to another language may have a different meaning.   A classical example used to illustrate this concept is the use of the mark Nova for an automobile since the term Nova sounds as the words meaning of "no-go or doensn't go" in Spanish.  


Reference: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>Will trademark law protect a personal name used as a trademark?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2007-05-03T23:01:40-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/42da91d1c28216afc0701f2e0921ead1-24.html#unique-entry-id-24</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/42da91d1c28216afc0701f2e0921ead1-24.html#unique-entry-id-24</guid><content:encoded><![CDATA[Personal names can be used as a trademark only if it can be demonstrated that they possess "secondary meaning."   Thus, personal names are similar to descriptive marks and they are considered to be weak marks.   For the purposes of trademark registration, secondary meaning may be assumed after five years of continued and exclusive use of a mark.   Black's Law Dictionary (Fifth Edition) defines the doctrine of secondary meaning for the purpose of trademark law as "[A] ... party through advertising or massive exposure ... [establishing] its trademark in the minds of consumers as an indication of origin from one particular source."


There are numerous examples of trademarks that use personal names: Chanel, Levis, Versace, Gucci, etc.   These personal names are protected by trademark law because they have accomplished the objective of forming an association in the mind of the consumer which links the individual products with its manufacturer or distributor. 


Reference: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>What is the purpose of trademark law?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2007-05-03T22:38:40-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/9975bff2077d8f58d340539a3c68b02b-23.html#unique-entry-id-23</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/9975bff2077d8f58d340539a3c68b02b-23.html#unique-entry-id-23</guid><content:encoded><![CDATA[The overall purpose of trademark law is to prevent unfair competition by protecting the use of a symbol, word, logo, slogan, design, domain name, etc. that uniquely distinguises the goods or services of a firm.   This body of common-law principles ultimately protects consumers by prohibiting companies from using trademarks substantially similar to those of other companies that may have more "brand equity" and customer loyalty.   Trademark law is intended to avoid consumer confusion and preventing companies from diluting the marks of other firms.   Dilution occurs when a similar mark adversely affects the reputation of a distinctive trademark regardless if it leads to consumer confusion or not. 


Given the increased importance of branding and the tangible economic value of the brand (brand equity) in today's experience economy, trademark law is more important than ever before.   As consumers become loyal to a particular brand and make purchasing decisions based on their ability to identify a product of service by use of a logo, slogan, etc (i.e. trademark), these marks serve as a point of differentiation and competitive advantage.   Consequently, trademark law is important to enable the trademark proprietor to develop goodwill for the product or service and prevent other parties from exploiting the brand. 


Reference: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>What is the relationship between trade secrets and a covenant not to compete?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trade Secrets</category><dc:date>2007-04-30T19:31:16-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/a5c53838ef19e76ee4e8698dda11405d-22.html#unique-entry-id-22</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/a5c53838ef19e76ee4e8698dda11405d-22.html#unique-entry-id-22</guid><content:encoded><![CDATA[A covenant not to compete is an agreement or contract that prevents or restains a person from performing a lawful profession, trade, or business for a period of time.   For instance, an engineering firm may want to restrain departing employees from working at competing companies for a certain period of time.   The rationale behind these noncompetition provisions is based on the argument that a departing employee will inevitably use concepts, ideas, and potentially trade secrets learned while working at the company once it goes to work for a competing firm.   What companies regard as valuable IP is often very broad and goes beyond the legal definition of trade secrets (e.g. employeed trainning, business methods, general experience gained while working, etc.)   The regulation of these contracts is a matter of state law and varies from state to state.   In general, however, any contract that presents a person from performing his lawful profession or business is generally considered to restrain free trade and is not favored by the corts.   Some states, such as California, prohibit these type of restrains on trade.   These contracts are enforsable when they meet the requirements of 1) consideration (i.e. the employee must receive something in exchange from it), 2) protection of a legitimate business interest, and 3) reasonabless of the restrain (duration, scope, etc). 


Covenants not to compete are intimately related to trade secrets.   In fact, companies use these contract to protect their "intellectual property" (defined in more general terms than its legal definition) and competitive advantage.   While companies may not be able to enforce some of the noncompetition provisions  in certain states, they always can prohibit an employee from using "confidential information" (i.e. trade secrets).   If the company can demonstrate that a departing employee is using information that meets the legal requirements of trade secret, it can file a lawsuit to prevent this from happening and seek compensation for the damages caused.   The success of these lawsuits greatly depends on the specificity of the trade secret and the company's trade secret management and security plan (e.g. the nature of the confidentiality agreement, how the company treats the secret information, etc.). 


Primary Reference: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>What are the two ways to protect trade secrets under state law?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trade Secrets</category><dc:date>2007-04-30T18:39:49-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/f82c67bf4107341fc00b394c4f47d962-21.html#unique-entry-id-21</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/f82c67bf4107341fc00b394c4f47d962-21.html#unique-entry-id-21</guid><content:encoded><![CDATA[Trade secrets (i.e. any formula, pattern, device, or compilation of information of economic value treated in confidentiality) are protected by state law in two ways: 1) misappropriation and 2) contract law.   Trade secret law is primarily  derived from common law, state statues, federal law, and the Restatement of Torts.    State laws prohibit the misappropriation of trade secrets.   Under the Uniform Trade Secrets Act of 1975 (amended in 1985) misappropriation is defined as "(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been acquired by accident or mistake."


The Uniform Trade Secrets Act does not affect: (1) contractual remedies, whether or not based upon misappropriation of a trade secret, (2) other civil remedies that are not based upon misappropriation of a trade secret, and/or (3) criminal remedies, whether or not based upon misappropriation of a trade secret.   Consequently, trade secrets are also protected under the principles of state contract law.   Companies are advised to require the relevant parties to enter into a contract that includes a confidentiality or nondisclosure agreement. 


Finally, in addition to the protection granted by state law, since 1996 trade secrets are also protected by federal law under the Economic Espionage Act of 1996.


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Uniform Trade Secrets Act of 1975 (amended in 1985) 


[4] Economic Espionage Act of 1996]]></content:encoded></item><item><title>On what basis can a plaintiff claim statutory damages for copyright infringement?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-04-12T00:14:42-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/eb8d08511dc885ab9208a8dac470ecb5-20.html#unique-entry-id-20</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/eb8d08511dc885ab9208a8dac470ecb5-20.html#unique-entry-id-20</guid><content:encoded><![CDATA[The plaintiff can can claim statutory damages if he 1) prevails in the lawsuit, and 2) has registered the work prior to the infringement lawsuit.   In this situation, the copyright owner can choose whether to seek statutory damages or actual damages anytime before the final judgment.   The decision typically depends on the amount of actual damages and the ability to proof and document them.   For instance, if the actual damages can be easily demonstrated and these are significantly higher than the maximum statutory damages award, the plaintiff would likely be advised to seek actual damages.   In both cases, the copyright owner sustains the burden of proof regarding the degree of the damages and willfulness.   Despite the fact that intent is irrelevant for proving infringement, it is often an important factor to determine the award of statutory damages. 


At the time of this writing, statutory damages for infringing a single work range from $750 to $30,000.   However, the court may increase the award at its discretion up to $150,000 in cases of evident willful infringement.   Similarly, if the court concludes that an infringement was innocent it also has discretion to reduce the statutory damages to a minimum of $200.   These amounts are multiplied by the number of works infringed.   In addition to the statutory damages, the loosing party may also have to pay all the attorney fees if the copyright owner registered the work prior tot he infringing activity. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>How many years does the copyright owner have to bring an infringement lawsuit?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-04-11T23:34:21-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/b0481c45ab85ccee2a827316029a90b0-19.html#unique-entry-id-19</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/b0481c45ab85ccee2a827316029a90b0-19.html#unique-entry-id-19</guid><content:encoded><![CDATA[The Copyright Act of 1976 (Section 507) establishes a three-year period of the copyright owner to bring a claim of copyright infringement.   This statute of limitations assumes that the copyright owner knew or should reasonably have known that the infringement occurred.   Consequently, the three-year limitation begins when the owner learns about the infringement activity.   Furthermore, the statute of limitations period does not start necessarily when the copyright owner first learns about the copyright infringement as long as the infringement is continuing.   In these cases, the three-year period can begin at any time during the infringing activity.   Thus, the statue of limitations only applies if 1) the copyright owner knew or should reasonable have known about the infringement activity, and 2) the infringement activity is not ongoing (i.e. has stopped). 


As an illustrative example, we can consider the case of a student that photocopies his professor's textbook and uses it for his class.   Let's assume that the professor knows that the student has photocopied his textbook and copyrighted materials.   After finishing the course the students disposes of the copies.   Since the infringing activity has stopped, he can only be successfully sued within the next three years.   In the case that a lawsuit was filed against him after the statute of limitations period, he will be able to claim the plaintiff waited an unreasonable amount of time to bring the lawsuit.  


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>Does paraphrasing a work shield the user of the work from an infringement claim?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-04-11T22:54:15-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/2ddc48513dd50ea4bd59c9f61fa89ecb-17.html#unique-entry-id-17</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/2ddc48513dd50ea4bd59c9f61fa89ecb-17.html#unique-entry-id-17</guid><content:encoded><![CDATA[In the context of copyright law, copying is understood in more general terms than exact duplication.   It is possible to violate one or more of the exclusive rights granted under copyright law in situations where the work is not an exact duplication.   Generally, the user of the work will not be shielded from an infringement claim even if he paraphrased the original work as long as the resulting work has similarities that can result only from copying, rather than from coincidence, independent creation, or derivation from a common source in the public domain.   This test is referred to as the "substantial similarity test" and includes both literal similarities (i.e. literal or verbatim copying) and nonliteral or comprehensive similarities. 


It is also important to emphasize that it is possible to incur in copyright infringement even in situations where the user of the work cites the original source he is paraphrasing, Thus, the combination of attribution and paraphrasing will not necessarily prevent an infringement claim.   Additionally, in certain situations this use of copyrighted material may also lead to other serious claims such as false endorsement and invasion of the right to publicity.   This is specially important in the case of advertisement.


While paraphrasing and attribution may not shield the user of the work from infringement claims in general, in certain situations it may be acceptable.   For instance, in works involving factual information, charts, maps, compilations, etc. paraphrasing and attribution would typically protect the user from infringement claims.   In these cases, the courts use a higher standard for establishing infringement since there are only a limited number of ways to express facts.   Consequently, the user would typically be protected as long as he is not copying at verbatim or paraphrasing very closely. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>How does a copyright owner prove ownership of a copyrighted work?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-04-11T22:41:33-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/38dd09cd28fda5cab038117b77c8b2b5-16.html#unique-entry-id-16</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/38dd09cd28fda5cab038117b77c8b2b5-16.html#unique-entry-id-16</guid><content:encoded><![CDATA[Owners of copyrighted work typically demonstrate that they are the rightful owners of the copyrighted work by introducing the copyright registration as evidence.   As it was mentioned in an earlier post, copyright registration within five years of first publication creates a legal presumption of ownership and validity.    While copyright registration does not prove ownership of copyright,  this legal presumption of ownership and validity constitutes a prima facie proof (on first appearance).   Consequently, in cases of infringement the court will presume that the ownership of the copyright and the registration is valid and will shift the burden of proof to the defendant to disprove by showing with sufficient evidence the falsity or invalidity of the allegation. 


A third party may also bring a suit provided the owner of the copyrighted work has assigned (i.e. transferred) the rights to this party.   In these cases, the party can introduce the transfer of copyright ownership written documentation as evidence to "prove" ownership. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>To what extent is registration necessary or beneficial in an infringement lawsuit? What is the process of expediting registration?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-04-02T01:02:42-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/df33901a31483437822f21ae4023cbfc-14.html#unique-entry-id-14</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/df33901a31483437822f21ae4023cbfc-14.html#unique-entry-id-14</guid><content:encoded><![CDATA[While registration is generally not required to obtain copyright protection, it is currently a required administrative process to file a lawsuit.   Specifically, the plaintiff in a copyright infringement lawsuit must acquire the "certificate of registration" in oder to formally file the lawsuit.   The registration process is straightforward.   It involves the submission of an application, a fee, and deposit materials.   The normal processing of registration may take six weeks or longer.   In cases of urgency (e.g. litigation) it is possible to request special expedited handling by preparing the form "Request for Special Handling" and paying an additional expedited handling fee of $500.   In these cases, the Copyright Office will process the application within five working days. 


Generally actions for infringement cannot be instituted until registration of the copyright claim has been made.   However, there are a couple of exceptions to this rule.   For instance, if the registration is refused despite having filed the correct form, the copyright owner can still institute the lawsuit.   Other exceptions include simultaneous transmissions and certain situations under the Berne Amendments. 


Additionally, copyright registration within five years of first publication creates a legal presumption of ownership and validity.   While copyright registration does not prove ownership of copyright,  this legal presumption of ownership and validity constitutes a prima facie proof (on first appearance).   Consequently, in cases of infringement the court will presume that the ownership of the copyright and the registration is valid and will shift the burden of proof to the defendant to disprove by showing with sufficient evidence the falsity or invalidity of the allegation.


Finally, statutory damages can only be awarded in a copyright infringement lawsuit if the work was registered prior to the infringement or within three months of the first publication of the work. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 
]]></content:encoded></item><item><title>What legal presumption is created by copyright registration?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-03-29T00:30:25-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/95f8fbf89bf9c75fe90cce8d5c9988af-13.html#unique-entry-id-13</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/95f8fbf89bf9c75fe90cce8d5c9988af-13.html#unique-entry-id-13</guid><content:encoded><![CDATA[Copyright registration within five years of first publication creates a legal presumption of ownership and validity.   While copyright registration does not prove ownership of copyright,  this legal presumption of ownership and validity constitutes a prima facie proof (on first appearance).   Consequently, in cases of infringement the court will presume that the ownership of the copyright and the registration is valid and will shift the burden of proof to the defendant to disprove by showing with sufficient evidence the falsity or invalidity of the allegation. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>What are the elements of copyright notice?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-03-29T00:01:24-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/e740002542ebfcf81fae2653baaf4170-12.html#unique-entry-id-12</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/e740002542ebfcf81fae2653baaf4170-12.html#unique-entry-id-12</guid><content:encoded><![CDATA[The copyright notice must include three elements: 1) the symbol (c), word Copyright, or abbreviation copr; 2) the year of first publication; and 3) the name or abbreviation of the owner of copyright.   In the cases of derivative works it is recommended to indicate a range of years for a work (although this is not required by law).   For instance, a copyright notice may be specified according to any of the following variants:


-Copyright (c) Mateo Aboy


-(c) 2007 Mateo Aboy 


-Copyright 2007 Mateo Aboy 


-Copr.   2007 Mateo Aboy


An exception to the above relates to the copyright notice of sound recordings.   Sound recordings embodied on phonorecords are required to include a special notice consisting of the letter P in a circle followed by the year of first publication and by the name of the copyright holder. 


Under the Copyright Act of 1909 if an authorized copy of a work was published without notice, the work would be placed permanently on the public domain.   This would result in the loss of copyright ownership.   This requirement changed when the US passed the Berne Implementation Act of 1998 which became effective on March, 1989.   For works published after this date, the omission of the copyright notice does not result in loss of copyright protection.   Despite this change in the law it still strongly recommended to use the copyright notice.   The notice serves to inform the public that the work is protected and identifies the owner of the work.   Additionally, the proper use of a copyright notice makes it significantly more difficult for defendants to claim innocent infringement. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>Do copyrights do a good job of protecting the author&#xb4;s interests in the item? </title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-03-28T08:45:45-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/9b4569e5e2b98174873c8460dcb9faf5-11.html#unique-entry-id-11</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/9b4569e5e2b98174873c8460dcb9faf5-11.html#unique-entry-id-11</guid><content:encoded><![CDATA[Copyrights grant the copyright holder exclusive rights of reproduction, preparation of derivative works, and public performance.   In its current state copyright law does a decent job protecting some copyrightable works such as books, songs, and screenplays; but it still seems to be underdeveloped in other areas such as the protection of computer programs. 


Since copyright protection does not extend to the underlying idea, procedure, or method of operation; other authors are free to use the same ideas and methods to create independent works.   For instance, after reading a novel an author could write another novel using the same plot and as long as he doesn't copy parts of the original copyrighted work literally he will not violate copyright law.   This limitation is specially significant in the case of computer programs.   Consider the example of a scientist that after investing a considerable amount of time seeking a solution to a scientific problem writes a computer program that can significantly help others in a specific area.   In this scenario copyrights will provide very limited IP protection.   Other other people can develop their own version of the program that does the exact same thing and will not violate copyright law as long as they do not use the exact same source code.   Additionally, reverse engineering is not prohibited either. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>Copyright Legislation: The Technology&#x2c; Education&#x2c; and Copyright Harmonization Act of 2001</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-01-25T01:12:21-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/6b513eedc6b2566f59679e1370965ab2-10.html#unique-entry-id-10</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/6b513eedc6b2566f59679e1370965ab2-10.html#unique-entry-id-10</guid><content:encoded><![CDATA[I was looking for copyright legislation related to the 


recording of course lectures.   I found the following Act that 


amends chapter 1 of title 17, relating to the exemption of 


certain performances or displays for educational purposes 


from copyright infringement provisions.   This ACT may be 


cited as the "Technology, Education, and Copyright 


Harmonization Act of 2001."   Below is the link to the PDF.


http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?  dbname=107_cong_bills&docid=f:s487es.txt.pdf


While this Act is helpful because it provides a general 


framework detailing general exemptions of performances and 


displays for educational uses, it does touch on recent 


issues such as students recoding lectures using iPods, 


editing these, and creating their own podcasts based on 


lectures. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>How can join authors establish the value of each contribution to the work?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-03-28T00:24:11-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/6313ebbe4e5331b4b9c6f51a38f4f8e7-9.html#unique-entry-id-9</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/6313ebbe4e5331b4b9c6f51a38f4f8e7-9.html#unique-entry-id-9</guid><content:encoded><![CDATA[The Copyright Act of 1976 defines "joint work" as creative work prepared by two or more authors working under the intention that their contributions will be merged into a inseparable or interdependent parts of a unitary whole.   This Copyright Act does not specify guidelines on how to value the different contributions in joint works.   However, common-law principles, court decisions, and the writing of legal commentators agree that when there is no agreement between the authors, a court will presume that each author had an undivided interest in relation to the total number of authors (i.e. the value is divided equally among the authors). 


It is often the case that not all the authors of a copyrighted work contribute equally to the work.   When multiple authors write of a textbook or a band that writes a song together it is often the case that not all the authors contributed equally.   In these situations it is important for the authors to sign a contract where they specify the rights, obligations, percentage of copyright ownership, and revenues attributable to each author.   This type of contract is known as a "collaboration agreement."    Collaboration agreements are very common in the creation of works such as books, software programs, screenplays, and songs. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>What are the two methods by which a hiring party acquires a work made for hire?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-02-26T00:11:59-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/f30a9ef2c3d0c408f65589b7ec4c9a4b-8.html#unique-entry-id-8</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/f30a9ef2c3d0c408f65589b7ec4c9a4b-8.html#unique-entry-id-8</guid><content:encoded><![CDATA[Under the Copyright Act of 1976 17 U.S.C. 101 there are situations where the ownership of the copyright does not belong to the person responsible for creating the work (i.e. the creator)  but to the party commissioning the work (e.g. the employer).   This is known as the "work-made-for-hire doctrine."


In order for a hiring party to acquire the copyrights it must meet either of the following two requirements: 1) the work was prepared by an employee within the scope of his or her employment, and/or 2) the work was specially ordered or commissioned for use as a contribution within the following categories:  a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answers material for a test, or as an atlas.   Additionally, the parties involved expressly agree in writing that the work shall be considered a work made for hire. 


While it is relatively simple to apply these two requirements in certain situations (e.g. a waiter that writes a movie script would be an example of a work that falls outside the scope of employment), these two requirements can be problematic.   In certain situations it is difficult to determine whether the work was created within the scope of an employer-employee relationship.   For instance, a university professor may create instructional materials and seek copyright protection for himself.   The employer university could claim that the creation of instructional materials falls within the scope of the employment and seek to obtain ownership of the materials.   Similarly, an employed software programmer could create a computer program and seek copyright protection for his creation claiming that he created the program on "his own time" and using his personal tools (e.g. personal computer and software).    In both examples it would be difficult to determine who is the legal owner of the copyright.   In these situations where an employee desires to retain control of specific works that may be considered to be created within the scope of employment, he should execute an agreement with the employer confirming the arrangement. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>What right does the owner of a computer program have to make copies of the program?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2007-03-27T19:44:14-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/d90e79a7928a1b26c0d8f850db30d5d8-7.html#unique-entry-id-7</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/d90e79a7928a1b26c0d8f850db30d5d8-7.html#unique-entry-id-7</guid><content:encoded><![CDATA[The owner of a computer program has the right to make a copy of that program for the following two purposes: 1) the copy is intended for archival (i.e. backup) purposes only and 2) the copy is created to utilize the computer program and not for the purposes of sale or commercial gain (1984 Congress amendment  117 of the Copyright Act).   More recently, Congress passed the Digital Millennium Copyright Act (1998).   This Act included provisions granting lawful owners or lessees of a computer program additional rights regarding computer programs.   Specifically, under the provisions of the Digital Millennium Act lawful owners of computer programs have the right to authorize independent service providers to activate the machine for the sole purpose of repairing or servicing its hardware components.   Consequently, a computer repair company does not infringe copyright law under these situations. 


We must emphasize that while "owners" of computer programs have the right to make copies for the purposes specified above, selling or renting copies of the software would constitute copyright infringement.   To understand these limitations, especially the inability to rent computer programs, it is important to understand  "Shrink--Wrap Agreements."   Under the first sale doctrine the purchaser of software could rent copies.   To avoid this situation, software products are not ``sold", instead they are ``licensed."   This license is a contract that grants certain rights and specifies limitations.   Anyone who purchases any software and violates the terms of the agreement can be sued for breach of the contract.   This arrangement enabled software companies to gain additional protection because the software was licensed and not sold.    Consequently, no first sale  occurs and the first sale doctrine is not triggered.   This practice is known as the "shrink-wrap agreement" or the "click-wrap agreement", depending on whether the software is sold as a packaged product or if it is sold directly on the internet for immediate download.   The user enters into a contractual agreement by breaking  the shrink--wrapped plastic that seals the CD or DVD or when it clicks on the accept button to accept the terms of the agreement.   These agreements typically replace many of the rights granted by copyright law with restrictions.   While in the past there was some debate regarding the enforceability of these agreements, since the Electronic Signatures in Global and National Commerce Act became effective in 2000 the law makes it difficult to challenge the validity of click-wrap agreements. 


While the amendment of the Copyright Act of 1990 prohibits rental of computer programs, it may be possible to do so in certain situations.   For instance, nonprofit libraries may be permitted to lend software without authorization, and software intended for "limited purpose" computers such as video game devices may be rented in certain situations. 


Finally, another area of user confusion relates to the rights involved in using shareware (trial software) and freeware (free software).   It is important to emphasize that both of these forms are protected by copyright law and cannot be reproduced or distributed unless explicitly authorized by the copyright owners.   


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 
]]></content:encoded></item><item><title>What are the five rights granted by copyright law? Are these rights granted for all copyrightable works?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2006-12-22T21:40:48-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/574e11e84c7200cddad26ae4891748b9-6.html#unique-entry-id-6</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/574e11e84c7200cddad26ae4891748b9-6.html#unique-entry-id-6</guid><content:encoded><![CDATA[The Copyright Act of 1976 (Section 106) grants the author of the work or the party commissioning the work of authorship all the means of commercially exploiting the copyrightable work.   This collection of rights includes the exclusive rights of 1) reproduction, 2) adaptation, 3) publication, 4) performance, and 5) display.   In addition to these five rights, the copyright owner may prohibit the importation of infringing copies into the US in certain situations.


In principle, the author of any copyrightable work is granted these basic five rights.   However, different works may have different limitations depending on the nature of the work.   This is especially true in the case of computer programs, reproduction of pictorial, graphic, or sculptural works, internet material, and sound recordings.   For instance, it is not an infringement to make a copy of a computer program provided the copy is to utilize the software for backup purposes and not for sale.    In the case of works of art -pictorial, graphic, and sculptural- it is also permitted for third parties to reproduce these works on useful articles such as in new reports, commentaries, and advertisement.   This is an example where the Copyright Act of 1976 prevents the author from enforcing the exclusivity rights of reproduction. 


Finally, the nature of the work is also an important factor in the assessment of fair use.   As an example, it would be easier to protect the rights of a movie or a movie script than those of a public news broadcast, a public scientific information session, or scientific literature.   This is the case because the copying from scholarly and informational works is easier to justify as fair use since the purpose is often to educate and disseminate knowledge. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).


[3] Copyright Act of 1976 ]]></content:encoded></item><item><title>Disclaimer</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Readme First</category><dc:date>2006-10-21T22:33:01-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/f8921daa9c24f5c005c2772f3693c231-5.html#unique-entry-id-5</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/f8921daa9c24f5c005c2772f3693c231-5.html#unique-entry-id-5</guid><content:encoded><![CDATA[Your use and browsing of the Site is at your risk.   If you are dissatisfied with any of the Materials contained in the Site, or with any of these Terms, your sole and exclusive remedy is to discontinue accessing and using the Site.


THE SITE AND MATERIALS AND RELATED COMMUNICATIONS ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILTY, NON-INFRINGEMENT, OR FITNESS FOR PARTICULAR PURPOSE.   SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OF IMPLIED WARRANTIES MAY NOT BE APPLICABLE UNDER CERTAIN CIRCUMSTANCES.   THE AUTHOR DOES NOT WARRANT THE ACCURACY OR COMPETENESS OF THE MATERIALS, INCLUDING BUT NOT LIMITED TO THE RELIABILITY OF ANY ADVICE, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE SITE.   YOU ACKNOWLEDGE BY THE USE OF THE SITE THAT ANY RELIANCE ON ANY SUCH MATERIALS, ADVICE, STATEMENT OR INFORMATION SHALL BE AT YOUR SOLE RISK.


UNDER NO CIRCUMSTANCES WILL THE AUTHOR OR OTHER THIRD PARTIES MENTIONED AT, OR INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, COSTS AND EXPENSES OF ANY TYPE INCURRED, LOST PROFITS, LOST DATA OR PROGRAMS, AND BUSINESS INTERRUPTION) ARISING OUT OF YOUR ACCESS TO, USE, INABILITY TO USE OR THE RESULTS OF USE OF THE SITE, ANY WEB SITES LINKED TO THE SITE, OR ANY MATERIALS CONTAINED AT ANY OR ALL SUCH SITES (INCLUDING BUT NOT LIMITED TO THOSE CAUSED BY OR RESULTING FROM A FAILURE OF PERFORMANCE; ERROR; OMISSION; LINKING TO OTHER WEB SITES; INTERRUPTION; DELETION; DEFECT; DELAY IN OPERATION OR TRANSMISSION; COMPUTER VIRUS; COMMUNICATION LINE FAILURE; OR DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY COMPUTER OR SYSTEM), WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THE AUTHOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


THE AUTHOR SHALL HAVE NO LIABLITY OR RESPONSIBILITY FOR ANY ACTS, OMISSIONS, OR CONDUCT OF ANY USER OR OTHER THIRD PARTY.
]]></content:encoded></item><item><title>What is the purpose of copyright law?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2006-12-21T21:11:48-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/128ce98299902760f1c540b8dcf9eec5-4.html#unique-entry-id-4</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/128ce98299902760f1c540b8dcf9eec5-4.html#unique-entry-id-4</guid><content:encoded><![CDATA[The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship.   To this end, the US Copyright Act of 1976 -a complete revision of the Copyright Act of 1909- protects all the works of authorship created between 1978 and the present.   This protection extends to works that are unpublished but are in a fixed and tangible form.   Copyright law is regulated by the federal government by registering copyrighted works through the Copyright Office (a division of the Library of Congress) and by enforcing copyright laws in the federal court system. 


The most commonly litigated issue in copyright law involves copyright infringement.   Disputes regarding the violation of any exclusive right granted under copyright law, such as copying a work, are filed in federal courts due to Federal Preemption. 


Copyright law protects literary, musical, graphic, or other artistic forms in which an author expresses intellectual concepts.   In the context of copyright law an author is the creator of any copyrightable creation.   Any author creation that meets the standards of copyright law is protectible under copyright law and considered to be a work of authorship.   The main two requirements to meet the standards of copyright law are originality and fixation. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>What is the difference between a fixed work and a work that is not fixed?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Copyright Law</category><dc:date>2006-12-21T21:01:41-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/804f4c5940fe299168ea68a195376c06-3.html#unique-entry-id-3</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/804f4c5940fe299168ea68a195376c06-3.html#unique-entry-id-3</guid><content:encoded><![CDATA[In the context of copyright law, a work is considered to be fixed when it is embodied in a tangible, stable, and concrete form.   For instance, a short story that is printed on paper meets this requirement, while a live performance of the same short story that is not being simultaneously recorded does not.   The Copyright Act of 1976 requires that in order to meet the standards of copyright law, works of authorship must be embodied in a form that is sufficiently permanent to be reproduced, communicated, and perceived.   Consequently, works that are transitory in nature are not protectible under copyright law, since they are not fixed. 


To illustrate the difference between a fixed work and a work that is not fixed in a practical scenario I will consider a real situation involving a university professor and a graduate student regarding the copyrights of lecture materials and associated class notes.    A personal friend of mine completing graduate studies had been taking excellent class notes during lectures and creating thorough course guides by complementing the class notes with materials from additional sources and using a professional quality typesetting system to publish them.   Additionally, the student decided to make these course guides freely available to other students as PDF documents.   I recently learned about a dispute involving the copyrights of the lecture materials between the university professor and the student.   The dispute goes as follows.   Allegedly, the university professor wanted to prevent the student from sharing her course guides with other students on the basis that since the student had created them based on her lectures, she -as the professor-- was the copyright owner of the materials. 


Analyzing the previous case, we find that based on the US Copyright Act of 1976 and the Berne Convention Implementation Act, the student not only is within her right to distribute the course guides as she pleases without any copyright infringement, but also has the right to seek copyright protection for her work of authorship.   Given that the professor lectures have not been simultaneously taped or transcribed, they are transient in nature and cannot be protected by copyright laws since they do not meet the fixation requirement.   On the other hand, the student's work of authorship meets the originality, fixation, and Judge Learned Hand's abstraction tests.   Additionally, copyright protection does not extend to the ideas, but only to the author's unique expression of the ideas.   Consequently, in this particular case the student has the right to copyright the course guides or make them public domain. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>How does a company acquire rights to a trademark?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Trademark Law</category><dc:date>2006-12-21T20:20:28-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/2595bebfa75ca04d7c803925ad78427e-2.html#unique-entry-id-2</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/2595bebfa75ca04d7c803925ad78427e-2.html#unique-entry-id-2</guid><content:encoded><![CDATA[A trademark is any word, symbol, design, device, logo, or slogan that identifies and distinguishes one product or service from another.  


To obtain trademark protection it is necessary for a person or a business to sell a product using the mark.   Consequently, trademark rights are only acquired when the trademark is used in commerce.   Additionally, it is recommended to register the trademark in order to obtain special rights in the event of infringement.   Trademarks are protected by federal and state law.   Trademark owners can register the trademark with the PTO (federal) or with the respective secretary of state.   Trademark rights are acquired by being the first to use the mark in commerce.   The first user of the mark on goods in commerce creates an association with consumers, and trademark laws are intended to protect the consumer by avoiding confusion and enabling companies to compete fairly.


Under the Trademark Law Revision Act of 1998 a trademark owner can apply for registration prior to using the mark, based upon the owner's bona fide intent to use (ITU) the mark.   If the application is approved and published without  opposition, the trademark owner is required to submit evidence that the mark is in use within a period of three years.   Upon submitting this evidence the PTO will issue the trademark registration.   Currently, trademark registration are protected for an initial 10-year period.   The registrant may renew the registration for subsequent 10-year periods as long as the mark continues to be used in commerce.  


The extend of trademark rights is affected by several factors.   These include:


-Distinctiveness of the mark. 


-The date of first use in commerce. 


-The geographic area where the mark is used. 


-The registration of the mark


-The goods or services associated with the mark


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
]]></content:encoded></item><item><title>How are patent rights acquired?</title><dc:creator>mateoaboy@ieee.org</dc:creator><category>Patent Law</category><dc:date>2006-12-21T20:17:03-08:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/08a0d7d4434293d0b86f8b3e3b0ce985-1.html#unique-entry-id-1</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/08a0d7d4434293d0b86f8b3e3b0ce985-1.html#unique-entry-id-1</guid><content:encoded><![CDATA[Patent rights in the US are acquired only after the patent is issued by the United States Patent and Trademark Office (PTO).   Contrary to other forms of intellectual property, protection does not exist for patentable inventions until the patent is formally issued (Letters Patent).   The PTO is responsible for determining the patentability and issuing patents.   Even though inventors can prepare their own patent applications, these application are normally prepared by a certified patent specialist with engineering or scientific background. 


In the US both attorneys and nonattorneys that meet the educational requirements may take the examination to become certified patent specialist.   A nonattorney licensed by the PTO to prepare and prosecute patent applications is a Patent Agent.   While patent agents can prepare, file, respond to office actions from the PTO, and participate in the amendment of the application, only Patent Attorneys can provide legal advise.


After the patent is issued, the inventor acquires exclusionary patent rights for a period.   Currently, utility patents filed after June 7, 1995 will expire 20 years for the date of filing. 


References: 


[1] Stim, R.   "Intellectual Property.   Patents, Trademarks, and Copyrights" West Legal Studies. 


[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).]]></content:encoded></item><item><title>Blog</title><dc:creator>mateoaboy@ieee.org</dc:creator><dc:subject>Blog</dc:subject><dc:date>2006-10-04T00:15:17-07:00</dc:date><link>http://www.mateoaboy.com/f6/blog_files/0a4fa696ade175a29dfb1d2d89da00dd-0.html#unique-entry-id-0</link><guid isPermaLink="true">http://www.mateoaboy.com/f6/blog_files/0a4fa696ade175a29dfb1d2d89da00dd-0.html#unique-entry-id-0</guid><content:encoded><![CDATA[This is my first entry of the blog!   Stay tunned for updates :)]]></content:encoded></item></channel>
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