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Who Shall We Turn To When God, And Uncle Sam, Cease To Defend New Zealand?
Bewhiskered Cassandra? Professor Hugh White's chilling suggestion, advanced to select collections of academic, military and diplomatic Kiwi experts over the course of the past week, is that the assumptions upon which Australia and New Zealand have built their foreign affairs and defence policies for practically their entire histories – are no longer valid.
WHO IS HUGH WHITE and why is he so determined to alarm us? Formally, Hugh White is the Emeritus Professor of Strategic Studies at the Australian National University in Canberra. Informally, he's a disrupter of cherished fictions. Unwilling to further embellish the orthodox accounts of Australia's and New Zealand's strategic obligations, White dares to ask the sort of questions that make his audiences either bristle with indignation or recoil in horror. In short, White possesses the Devil's imagination: that terrifying ability to interrogate a worst case scenario without flinching.
White's chilling suggestion, advanced with bewhiskered geniality to select collections of academic, military and diplomatic Kiwi experts over the course of the past week, is that the assumptions upon which Australia and New Zealand have built their foreign affairs and defence policies for practically their entire histories – are no longer valid.
Both nations are the offspring of empire: peripheral adjuncts to a core imperium powerful enough to guarantee the security of both. Accordingly, the unwavering principle of Australian and New Zealand statecraft has been to keep strong the ties that bind them to their distant protectors. Up until the Second World War that meant listening intently to the voice of London. After HMS Prince of Wales and HMS Repulse were sent to the bottom of the South China Sea by Japanese bombers in 1942, however, Canberra and Wellington found it more expedient to tune-in to Washington.
The key image to keep in mind is that of the "young lions". A poster depicting Canada, Australia, South Africa and New Zealand answering the summoning roar of the leader of the imperial pride, Great Britain. Alone, not one of the so-called "White Dominions" was strong enough to see off either Hitler or Hirohito. That is why they answered the call. The British Empire would face the "audit of war" as a unit: Albion's "pride" would stand, or fall, together.
In the words of the New Zealand Prime Minister, Michael Joseph Savage, broadcast to the nation almost exactly 80 years ago: "Both with gratitude for the past and confidence in the future, we range ourselves without fear beside Britain. Where she goes, we go; where she stands, we stand."
It was the same (minus the eloquence) with Uncle Sam. When he hollered, the Aussies and the Kiwis came a-runnin'. Korea, Vietnam, the Persian Gulf, Afghanistan, Iraq: one way or another both countries made it their business to show up. The Australians were always more demonstrative of their love for Uncle Sam than the Kiwis. Even before the break with Washington in 1985, occasioned by New Zealand's anti-nuclear policy, Wellington generally contrived to contribute only the very least it could get away with. Where Robert Menzies sent thousands of young Australian conscripts to South Vietnam, Keith Holyoake sent a few hundred volunteers – albeit with Howitzers.
White's unnerving propositions posit a strategic situation in which not only does Uncle Sam cease to holler, but also – and much more alarmingly – ceases to come when called. He sees a new, multi-polar, world in which the principal nation-states have withdrawn behind their nuclear-fortified walls in watchful suspicion. A world frighteningly similar to that of the 1930s, in which a feeble and increasingly despised League of Nations simply ceased to matter. When leaders closed their mailed fists around the hilts of their swords and no longer bothered to pay even lip-service to the principles of international law.
This grim strategic position, so far from the "amazingly benign strategic environment" inherited by Helen Clark in the dying days of American hegemony, is made much worse by the USA's ability to cast-off the ties that bind without significant cost. Great Britain depended on the food and raw materials of its far-flung dominions in a way that the USA, a vast continental power, does not. Abandoning the Western Pacific will not break the American economy, nor will it cause its people to starve. Indeed, the reverse may be true!
Which leaves us facing the one power which does evince an interest in what Australia and New Zealand have to offer – the Peoples Republic of China. White taxes his audience with questions about how far we Anzacs are prepared to go to preserve a modicum of freedom of action within the new imperium radiating from Beijing.
More importantly, how much are we willing to pay?
This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 6 September 2019.
Labels: Hugh White, Imperialism, New Zealand Defence Policy, New Zealand Foreign Policy, Sino-New Zealand Relations, US-NZ Relations
If the US thinks it's in their interests to defend Australia and New Zealand it will do so. If it doesn't think it's in their interests it will not. I wrote this in an undergraduate essay many, many years ago. And if the perfessor can't see this, he's not thinking very clearly. We have never had a guarantee of US protection. We thought we had a guarantee of British protection before World War II and that turned out to be ephemeral. So we shouldn't be shocked at what the man says. Although to be honest, China probably has more economic power to influence New Zealand than military. The US is still the only country in the world that could mount a decent amphibious invasion pretty much anywhere.
peteswriteplace said...
Who are we afraid of?
Nowadays, sadly, nothing.
We can see this not just in the reactions of our corporates but in both the Labour and National Party's. They've barely managed a squeak over the Hong Kong situation, although to be fair that's been the case for many of China's actions in the last few years. And of course they both harbour Chinese MP's with very strong connections to the Chinese Communist Party, and who speak only to the Chinese media in NZ.
I guess we were always somewhat of a vassal, but there was at least a time when we were willing to stand up for basic freedoms, even if those efforts were interpeted as right for WWII because we were fighting against the Nazis, vs wrong in Korea and Vietnam because we were fighting against communists.
Never mind, Maori I'm sure will be willing to defend NZ, plus a certain section of the Pakeha population, but after fifty years of relentless denigration of the dull, boring and square generations of WWI and WWII, the majority of New Zealanders view themselves as being above all that nonsense about patriotism, nationalism, "foreign enemies" and so forth. That way lies war.
Much better to just keep abreast of events, cutting deals where possible but ready to liquidate assets and head for safer climes if push comes to shove.
Hell, just as a follow-up, one only need note the fact that you had to address Stevan Eldred-Grigg's argument, in Where We Stood, that we should not even have joined in WWII.
That argument is simply a direct and logical result of the path we have taken for fifty years now. It came as no surprise to me to see it in print. And of course if that argument can be made about WWII and convince a lot of people, even if not you, then how strong will it be when applied to more recent conflicts like Vietnam and the Gulf War, let alone a future one.
This reminds me of Neitzes "God is dead and we have killed him" (what will fill the void of religion)? We know have to query: "what will fill the void of a nation state so despised by the left"? The globalists like Helen Clark, John Key, Jacinda or Paul Spoonley have nothing to offer by way of compensation other than an appeal to civic values. I hope the eye turns on them one day?
Gloomy nonsense. How about looking positively towards a time when Washington stops endlessly making the world a more dangerous place? If we are supposed to be so worried about China (taking over as principal designated enemy from the Russians who had a short lived revival after the end of the era when it was Moslems as enemy no 1) why are we so keen to buy all our manufacturted gods from them and sell so much farmland and enterprises? Time to go non-aligned once Winnie retires.
Exkiwiforces said...
Ah, the penny has finally dropped Chris?
When Auntie Helen said " We live in a benign strategic environment and as a result we do not need a ACF or a Frigate base Navy etc" or words to that effect.
My then Flight Commander and XO at the RAAF's 2AFDS dragged me and explain myself WTF is your Auntie on about when ET was in the new's and I think my ex NZ Army mate was KIA around this time in ET as well. With West Papua not looking great that time and along with a few other countries within NZ's Strategic Environment not to flash either. Asked what is she smoking and give a brief on the Labour/ Alliance with a MMP background. Being a former member of the Young Labour Party until I given my marching orders after that wanker Mallard said to me on Friday before the Labour Party Conference in CHCH in 97 as I was standing for Young Labour position on the Labour Party Council the time. So I unloaded everything on the inner workings of the Party I once held dear to my heart.
Haven't voted NZ or Aus Labour since then consider that I come from Labour Party Royalty in NZ, Canada ( Frank Henry Sherman) and in the UK ( One Mr A Bevin)
Considering NZ had deployed a 1500 strong Battalion group to ET, two Frigates and the Fleet Tanker, half of the RNZAF's rotary and fixed airlift capability. At one stage even RNZAF's No2 SQN almost got a guernsey with INTERFET.
I still call Auntie Helen's "Benign Strategic Environment" BS back then and still to this day, along with anyone else who still mentions it today. After 24 yrs of Military service in the NZ Army and the RAAF's Ground Defence Forces especially the last 24/ 36 odd mths prior to med discharge 14 mths. The world has changed for the worse will actually it went tits up after 9/11 and now add in CC to the mix. Mere Words, like the International Base Rules of the Norm that we have taken for granted are no longer going to cut it. But Our words how have to be backed with Action, As our Actions speaks louder than fancy words that the stupid Ruling Class, Middle Class Toffs like saying these days while trying to avoid responsibility for their actions as they don't to make the hard decisions that involved life and death or the long term future of one's country/ for the greater good.
At least Ronnie is making some bloody decisions IRT to the future structure of the NZDF and not getting involved with the Middle East, unlike ScoMo here in Oz.
As we in say in the World of Military Planning, Operations Planning "Plan for worst case and hope for the best case" or as one wag said jaw jaw is better than war war, but when jaw jaw stops and becomes war war and you are not ready for war war then it's too late.
Since we implicitly rebuked the Old Testament Lord by supporting Marilyn Waring in 1976 when 'Truth' revealed she was a lesbian we've not really expected much of a show from him.
Since everyone doesne much like China to the south of them there is a good alliance to be had. Zheng Zhou Peng (forgive the unright spelling) warned against an expansive foreign policy. So the present self-annointed centre of all wisdom has critics. Mind you, all 'the Greats' of the 1700s were declared in their own reigns by their own people, Peter, Frederick, Catherine, and we still recognise them as so. Egomania (eg de Gaulle) is often consecrated by events. The peoples to the north, most of all the Ozzies and the Vietnamese, are our bulwark.. Don't really think yet China has 'unjustified' expansion in it's soul.
And you can also get a sense of where New Zealand will stand with these two Op-Eds in NoMinister:
National MP Jian Yang lied about his Chinese Communist Party past when entering the country, admitting that he did so on instructions from Beijing, and worked for the PLA's Military Intelligence unit. Yet he is apparently a valued member who raises tons of money for National, speaks only to the Chinese media in NZ and has never said a word against the PRC..
The Labour MP, Raymond Huo, follows a similar path. Chairing Parliament's Justice Committee hearings on foreign interference, he initially opposed any public submissions, claiming government departments could say all there was to be said. How very Xi of him. He's recused himself now, but, exactly like Yang, has solid ties to the PRC Embassy here, to various regime-affiliated United Front bodies, is on record about the opportunity being an MP gave him to champion PRC perspectives on issues like Tibet, and - again exactly like Yang - has never once in his years in Parliament been heard to utter a word critical of the PRC.
And here today:
A People that elect Corrupt Politicians...
Which discusses Bridge's current grovelling trip to China.
I was also struck by the following comment from a British blog, with regard to the whole Brexit issue, which is one of the more prominent cases of the nation-state vs. some vast foreign enitity....
For years elite liberals were accused of having a condescending attitude to those they regard as their inferiors, but it was always assumed that we shared the same national space.
Are they now instead part of a completely new demos, even perhaps part of a wholly new concept of what a nation is? In a hyper-connected world, where we all lead 'amphibious' lives often more virtual than real, perhaps to the new elites their network, their connections and the international institutions they control have become their nation: Liberalism is its faith, and they are the new elect. The views of heretical leavers simply do not count, for they belong to a different, backward, threatening and alien world.
When I look at the upper echelons of National and Labour, and the lifestyles of many people living in Wellington and Auckland, I can't help but think that I am seeing the same people here, with all that implies for New Zealand.
Clearly Simon Bridges and the self appointed heir apparent, Judith Collins and the other contender,need to be asked, do they appoint New Zealand need for a serious military? ie a RNZAF and RNZN with P8, Seaprite and seaborne NH 90, most of all Posiedons capable of anti ship strikes against Chinese and Russian destroyers and shipping and deterring and if necessary attacking Russian and Chinese and other Asian powers submarines as the highest priority and secondly do they reject Otago Political Scientist Patmans suggestion that a frigate capability is no longer required, given with.a two frigate force, they are both in refit or other ocean much of the time. I would suggest obtaing 4 of the new RN T31, the Danish Patrol frigate, Stretched Holland class or USCG Legend class or their new in production 3000 ton Medium endurance cutter all rather similar to the Danish frigates might allow for a new long range 4/ship patrol frigate force for about 2 billion, which would be more than reasonable compared with the Palmer 2 Anzac frigate purchase for 1 billion in 1990 or Clark's 750 million order in 2000 for 105 Lav 3/APC, a 80% useless acquisition to forestall any useful air and naval purchase. These new naval assets would be communication and command platforms to support SAS and disaster relief operations with soft and hard kill CIWS and capable of offensive action against naval auxiliary and ground stations. Unlike post war RNZN frigates they would transfer the primary anti ship and anti warship role to the Posiedons.
The fact is Labour and NZDF support a serious alliance with the US and USN, Ms Collins, Ms Bennett and Mr Bridges need to confirm they do and go on record that they give unqualified support to a serious RNZAF with P8. Accepting the defence of the Pacific is an island hopping, airstrip defence as the British and Air Marshall Elworthy saw it in 1967 and require our own Air force and USN aircraft carriers, nuclear or otherwise and anti sub frigates are no substitute for ground based USN aircraft of our own
Interestingly I was listening to the following YouTube yesterday while at the gym https://youtu.be/7kRtt4Jrd_Y
It talked of the upcoming multipolar world as opposed to the unipolar world that has been in existence since the collapse of the USSR. How prior to that event Russia and the US each controlled certain areas of the world. Now and in the very near future, in the view of the speaker, it will be the US, China and to a lesser extent Russia who will be controlling their areas of the World. China is both New Zealand and Australia's main trading partner. Do we both have to choose? In the view of the speaker we do even if that means giving up our lifestyle otherwise we will suffer the same consequences that South America has suffered. One questioner suggested that the only way for Australia to survive such a situation, that is being squashed between two super powers, was to have a nuclear bomb!! The speaker agreed!! Go figure...
Interesting viewpoint.
But history says the USA will not abandon the western Pacific.
Remember, it was America's ham-fisted economic sanctions against Japanese that led to Pearl Harbour.
The USA went to war defending the colonial possessions of Vichy France.
The contrast between America's half-arsed reactions to German aggression in Europe and their whole-hearted efforts against Japanese aggression in Asia are perplexing to me.
The chances of the USA abandoning South Korea and Japan is about as likely as Malcolm X becoming Grand Dragon of the Alabama KKK.
New Zealand is still in a very benign strategic environment. It is due to geography.
And our position on the globe is not going to change.
Tom, your observation of the supra national elite and it's divorce from ourselves, the great unwashed seems very accurate. Living in small town NZ and occasionally going to Wellington is a real eye opener. There the expensively groomed chic glossy public servants parade the cafes and mirror glass swipe card castles that guard their privelege. We pay but we are not served. Around Hicksville the better dressed are not so far removed from the lower rungs.
It's not new, just a repeat of what Thorstein Veblen observed in the Hampdens a century ago. They are still the grass skirted bead wearers parading in front of our honest nakedness. They can't just be self interested, they need us to see it to feel themselves worthwhile.
One of the best discussions on the issues confronting the West and our relationship with an aggressive, imperialist, totalitarian (and increasingly fascist) China you will find.
https://youtu.be/qH5QzuzD01A
If you are still think there are grounds for complacency after watching this I'd love to hear your reasons.
Wayne Mapp said...
I think Hugh White is too pessimistic. He has said much the same thing previously, that the US "security guarantee" is not to be relied upon. To some extent that view has played out in Australian defence policy. Australia has an extremely capable Airforce and Navy for a country of its size. For instance, more than twice as capable as that of Canada. The expensive Australian Airforce and Navy is part of their insurance policy if the US "security guarantee" is not as good as they would like.
The view that the China and the US would get into a serious conflict does not take into account that they are both nuclear powers. They know an extended conflict would be far too perilous to contemplate.
The US is not going to abandon the Pacific. The US is in fact a Pacific power with sovereign territory right across the Pacific, from Guam to American Samoa. Therefore the "security guarantee" to Australia (and by extension to NZ) will fundamentally hold.
In short New Zealand can and should continue its current balanced policy to the two great nations of the Asia Pacific.
The basic structure of the New Zealand defence force is sound. The next big defence decision will be the frigate replacement. Two is not enough, three is the effective minimum. However, they could be cheaper light frigates as per the UK Type 31. This is still a capable ship, but does not have the full suite of very expensive anti submarine capability as the ANZAC frigates currently have. Basically three Type 31 for the same price (in real terms) as the two ANZAC frigates.
Guerrilla Surgeon parrots the same left wing view as Wilkes, Clark and Hagar in the 1980s. The work of ANU Canberra defence intellectuals like Hugh White, Desmond Ball and Paul Dibb has always been a slightly more informed and skillful effort to disarm us to avoid recreating the staunch, conscripted narrow white Australia, of the 1950s, near Nazi in its view.Also White and Dibb always denied that the Soviet Navy and Army were any real military threat in ideology, capability or plans. If your analysis tool is anything more sophisticated than the films of Oliver Stone, Kathryn Bigelow and Sheryl Sontag, that the old USSR and the Russian Navy represented a world wide threat and aspiration was obvious even to fellow travellers like Peter Hitchens, who actually moved to embassy reader in Moscow. As a gesture to appease and mislead the Australian public White and Dibb always advocated doing just enough, a few anti sub frigates, diesel submarines and and army too small to be useful or noticed.
It is very difficult to see what use the very short ranged steam tubine powered type 12 RAN River class frigates and its Ikara anti sub missiles were. When the RNZN decided to buy the Ikara missile with another Type 12 cast off by John Notts defence review, HMS/HMNZS Southland, I argued about this with the Politics honours lecturers, Richard Kennaway in 1981. Kennaway argued (based on the photo of Ikara on its zabretta on HMS Bristol) that Ikara was really a Poseidon missile that it was impossible that NZ was buying it. In some senses it was all true, Muldoon brought it, and without its planned nuclear warhead option, it was as a longer range subsonic a/s torpedo carrier than the supersonic Asroc, but once the RN and Harold MacMillan rejected a nuclear warhead for the Ikara they also brought,.because of the evidence of great environmental damage from hydrogen bomb tests, plus the fact that even the first Soviet nuclear attack sub's the Novembers with.a speed of 30k plus were too fast for surface destroyers and nuclear carriers to track, turbulence created sonar blind and before 1976 even the USN had no torpedoes at all fast and.sophisticated enough to overtake and possibly engage a nuclear sub. So even before 1962 the ideas of a US Navy of frigates and nuclear aircraft carriers being the basis of Australasian defence was not really credible. By the late 1960s the North.Island and South Island were two RN/RAF/USN carriers with potentially nuclear armed Canberra's and Skyhawks would deter Echo and Juliet cruise missile sub's launching cruise missiles at Sydney and Melbourne. Our Canberra's and A-4 were pure one way nuclear bombers.Not defensive ground attack versions like the very different models used by Australia in Vietnam.
Commentators who split their comments up into paragraphs will be appreciated.
I usually stop reading when someone accuses me of "parroting" – but in this case I stopped a little later – simply because the rest of it was pretty much incomprehensible and pretty much off topic. I will say this though, Soviet equipment was not reliable enough to help anyone be a threat to New Zealand. I think there is enough evidence of this and we've known for some time since Andrew Cockburn wrote "The Threat".
The 3 frigates would be nice, especially if they were allowed to go to sea. My navy son commented that you "tied up the boats". Nothing has changed except that the navy has bleed staff who get limited promotion without seatime. They no longer have the crews to safely put to sea. Nice heritage.
Large states can invade their smaller neighbours with relative impunity when they
a)are in close geographic proximity
b)have a historical claim to the invaded nation
c)can find a plausible humanitarian pretext and claim fraternal interest
For example Russia and Crimea, the US and Granada, China and Tibet, Germany and the Sudetenland.
There are exceptions, but generally all three stars need to align.
There is therefore only one state which could conceivably launch an invasion of or military intervention in New Zealand, and that is a nation which has successfully invaded in the past, namely the Commonwealth of Australia.
Australia would only intervene when if there was an acute political or constitutional crisis in this country, and then only if the United States gave its consent.
In such an event, the weakness of the New Zealand constitution would be dramatically exposed because the key figure in any crisis would be the Governor General whose authority comes through London (if not strictly from London) and not from Porirua or Geraldine.
Because the Governor-General represents and exercises the sovereignty of the Realm, he or she has the power to surrender that sovereignty to any invading power - "friendly" or otherwise.
Parliament is then "duty bound" to follow the Crown, and in any case by constitutional design Parliament lacks the visceral patriotic instincts necessary to repel any invasion.
So the resistance to invasion would come from those who are accustomed to fighting against the odds, not those who have made a political career out of accommodating the interests of outside powers - whether we are talking about the United Kingdom of Britain, the Commonwealth of Australia, the United States of America or the Peoples Republic of China.
The people of Aotearoa are uniquely well placed to resist invasion or military intervention by other outside powers and whatever the cost in lives the final outcome would be positive. The colonial regime would be doomed. In a constitutional crisis it would lack the will and ability to fight off its "Anzac allies" or any other invader. So the people would have to take on the fight, and having won they would be most unlikely to hand power back to whatever remained of the colonial regime.
Hugh White has to ignore the kangaroo in the room, but in assuming that the strategic interests of Australia and New Zealand are inseparable he quietly reinforces the case which would be argued for Australian military intervention in New Zealand affairs.
If a Chinese military strategist was to write a paper on a joint defence strategy for China and New Zealand, and then begin hawking it around the New Zealand political elite and the military high command, most of us would be either perplexed or alarmed.
So we could be now.

redpajama_set_name: RedPajamaCommonCrawl


Albany, NY -- (SBWIRE) -- 10/05/2017 -- A cumulative share of 39.1% allowed three companies to take the lead in the global commercial building automation market for 2015. United Technologies Corp., ABB Ltd., and Siemens AG each had held key strategic advantages in the global commercial building automation market for 2015 through various avenues such as new product developments, mergers and acquisitions, and stepping forth into the world's emerging economies. The remainder of the global commercial building automation market showed a very high level of fragmentation at the time, with the presence of a large number of regional players.
As stated in a research report released by Transparency Market Research, the global commercial building automation market is likely to reach US$77.63 bn by the end of 2016. In terms of revenue, this market is expected to reach US$108.49 bn by 2024, after expanding at a CAGR of 4.3% from 2016 to 2024. The degree of competition in the market is expected to intensify over the coming years owing to the aggressive expansion strategies adopted by leading players, as well as the several opportunities available for new entrants in terms of fast growth.
"The primary factor that is allowing for a great scope of expansion for players in the global commercial building automation market is the booming construction industry itself. Improvements in the global economy are creating an increase in the demand for construction projects in industrial and the residential sectors. This is more pronounced in the emerging economies of the MEA region than others. These regions are where the global commercial building automation market will find a very high level of interest from clients," states a TMR analyst.
The growth of the construction industry is currently also a leading cause in the demand for highly efficient projects that will consume lesser volumes of materials as well as a lower power requirement. Additionally, the growing concern over depleting fuel stockpiles and increasing pollution have pressured several governments to adopt increasingly strict policies regarding efficiency of resource usage. This will directly favor the global commercial building automation market in the years to come.
The overall cost of installing, operating and maintaining commercial building automation systems is quite high. This already deters new entrants from the global commercial building automation market, but compounding the issue is the slow rate of ROI that end users can achieve with the adoption of these systems. This is a cause for concern for the smaller players in the global commercial building automation market as they will be getting a much lower interest from clients than what the more prominent players may get.
"Deep Learning is one of the novel concepts expected to revolutionize the global commercial building automation market over the coming years. It involves the gradual development of an IoT sensor system that can generate groundbreaking solutions in terms of improving the automation process. It is concepts like this that are expected to bring a wider scope of opportunities for players in the global commercial building automation market over the coming years," added the analyst.


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Home›Culture & Lifestyle›Film Festival Rising
Film Festival Rising
The annual Middleburg Film Festival provides four days of fantastic films in a stunning setting.
By Joe Yogerst
Sometimes an off-the-cuff remark is all you need to get things started, to plant the seed that blooms into something great. Such was the case with the Middleburg Film Festival, created by Sheila Johnson after a good friend suggested that the property she had acquired in rural Virginia—a 340-acre property that would one day sprout the Salamander Resort & Spa—would make a great location for movie fest.
When that friend happens to be Robert Redford, you tend to listen. Two decades later, the Middleburg Film Festival is on the verge of hosting its sixth year this October. During that time it's evolved from a newcomer on the festival scene to a rising star in the movie world, garnering excellent press, loyal followers and a growing reputation for great films. Forty-four Oscar nominations came out of the movies that screened at Middleburg in 2016, and Johnson expects another great year of Oscar nominations for films presented at the most recent festival
(Left to right:) Sheila Johnson, John Horn, Emma Stone and Damien Chazelle. | Photo by Joy Asiko
Johnson was already familiar with Middleburg from her daughter's show-jumping exploits when she moved to the area in 1996 and dove even deeper into the equestrian world. But given her diverse background in the arts—movies, music and television in particular—Johnson was also keen to cultivate her creative streak in new and exciting ways. She was already on the board of Redford's Sundance Institute when she invited the Academy Award-winning actor and director to visit her in Middleburg.
"He came to talk to me about Sundance and about his resort," Johnson remembers. "I took him up on the property to show him where I was building my resort, and he looked down on the town and said, 'You really should put a film festival here.' It stuck in my mind."
Of course, film festivals aren't born overnight. It would take more than a decade before Johnson opened the curtain on her own event. One of her first moves was bringing another old friend on board—filmmaker Susan Koch—as the festival's executive director. The mutual trust and understanding between them was already established; the pair had previously collaborated on a two very well-received documentaries, "Kicking It" in 2008 and "The Other City" in 2010, with Johnson producing and Koch writing and directing.
Two major factors had to be overcome for them to launch the festival: securing venues in which to screen films and trying to get A-list producers, directors and studios to show their latest creations at a brand-new festival in a town with fewer than 800 people.
"The most obvious challenge was the fact that there's no movie theater in the town of Middleburg," Koch recalls. "So we had to find existing venues that we could transform into temporary movie theaters. With the help of a terrific tech crew, we created four theater venues outfitted with state-of-the-art projection and sound equipment required by the studios for the high-profile films that we screen. Our largest venue, the Salamander Resort ballroom, seats approximately 350 people. We were thrilled when one Oscar-winning film director told us, 'This is better than many movie theaters I've been in.' "
Johnson is delighted to follow her long involvement in the entertainment world—as co-founder of Black Entertainment Television (BET) and as an Executive Producer and Producer on such highly acclaimed films as "Lee Daniels' The Butler" and "A Powerful Noise" (2008)— and from the beginning, the festival has presented a stellar line-up of films that is truly astounding.
The inaugural 2013 festival kicked off on opening night with "Nebraska." The Alexander Payne-directed comedy-drama starring Bruce Dern and Will Forte would go on to garner six Oscar nominations. Among the 24 other films that screened that first year were "August: Osage County" with Meryl Streep and Julia Roberts, "Philomena" with Judi Dench, as well as the Johnson-executive produced "Lee Daniels' The Butler" with Forest Whitaker and Oprah Winfrey.
"We place great emphasis in curating the best possible slate of films," Koch says. "A Hollywood studio executive told me when we first launched, 'When you only screen 25 films, they all need to be great.' This set a high bar for us, and it's one that we consistently strive for and hopefully meet. We look for a mix of Oscar contenders, independent film 'gems' that you might not otherwise get a chance to see, foreign language films, and powerful and inspiring documentaries. We also look to present diverse voices in filmmaking. This past year, nearly one-third of our films were directed by women."
Success also depended on getting viewers into the seats. It certainly helps having such great lineups and stars like Bruce Dern, Meg Ryan, Lee Daniels, and Emma Stone on hand. Middleburg is also conveniently located — the town, set in the foothills of the Blue Ridge Mountains, is just 30 minutes from Dulles International Airport and one hour from our Nation's Capital.
The Washington Post was there the opening night, raving about the festival's cozy atmosphere and lack of pretension. Noting that there were no red carpets and many of the tickets were just $15, the Post called it "a really itty-bitty Cannes brightened by fall foliage instead of the glistening French Riviera. … The Washington area—has never hosted a festival that features so many potential Oscar contenders at the same time that the awards season conversation aggressively hits the gas."
Middleburg presents the 'best in film' while retaining the relaxed and intimate environment setting it apart from other festivals.
Better Doesn't Mean Bigger
Since that first year, Johnson, Koch and Programming Director Connie White have set out to make Middleburg better and better, although not necessarily bigger. "My original aim was to keep it intimate," Johnson says. "And what I mean by intimate is keeping it small, keeping it right in the town of Middleburg so people can literally walk from movie to movie."
Like most film festivals, selecting the films that screen each year involves a little "behind the screen" magic, a process that includes attending other film festivals, working with an advisory board based in Los Angeles that keeps an eye on upcoming movies, and touching base with their many contacts in the film industry.
"As our reputation continues to grow within the film industry, we're able to present more and more high profile films, including many Oscar contenders," Johnson says.
Middleburg's proximity to the nation's capital has proved invaluable in attracting well-known press and politicos to speak at the event. Former U.S. Attorney General Eric Holder participated in a conversation following the screening of "Loving" in 2016. New York Times film critic Janet Maslin spoke with CNN Senior Political Analyst David Gergen about how American presidents are portrayed on the big screen. Panels and talks are moderated by The Washington Post film critic Ann Hornaday, Public Radio's John Horn, and Vanity Fair Special Correspondent Maureen Orth.
Despite her long-time association with Sundance and her frequent visits to other film festivals, Johnson feels that Middleburg has blazed its own trail rather than following the templates or examples set by other events.
"I want everybody to feel like they can get in a film, they can relax, they can get something to eat, and they can come to our different venues, where they can drink wine and listen to intelligent conversation at our panels and really just enjoy the entire experience," Johnson says.
Another thing that sets Middleburg apart is how music is woven into the fabric of the festival. Each year the lineup features a tribute to a film composer that includes an interview session with that composer or a concert of his or her music played by the Shenandoah Conservatory Symphony Orchestra. Among the composers they have featured are Nicholas Britell ("Battle of the Sexes," "Moonlight," "The Big Short," "12 Years a Slave"), Henry Jackman ("Captain Phillips" as well as the Captain America, Captain Phillips and Wreck-it Ralph) and Carter Burwell ("Carol," "Rob Roy," "Twilight" and "Gods and Monsters").
Panels and conversations are held in the library by the fireplace at Salamander.
Beyond the movies and music, the most endearing thing about the Middleburg Film Festival is probably its location—the chic Salamander Resort & Spa and rustic Loudoun County, Virginia.
"After five years, it's hard to find any downside to our location," Koch says. "The town of Middleburg is charming and historic. It's located in the heart of wine country, in the foothills of the Blue Ridge Mountains. The festival takes place in October at the height of fall foliage. There's no traffic, parking hassles or long lines. Salamander Resort serves as a wonderful festival hub for film screenings and great parties—and also a place where filmmakers and filmgoers can engage in conversation in an intimate and relaxed environment."
Many festival participants and guests stay at Salamander. The resort's ballroom transforms into the main movie theater and symphony orchestra concert venue. Add if you want: Cozy conversations are held in the library by the fireplace.
Shuttles whisk guests into town for screenings at The Hill School, Middleburg Community Center and the National Sporting Library & Museum, as well as panel discussions, filmmaker conversations and tastings at local wineries. All of the venues in town are within walking distance to one another.
In addition to the movie venues and wineries, the town features wine tastings at the local vineyards, a cidery and distillery, fashion boutiques and other shops, equestrian outfitters, coffee shops, and numerous restaurants.
"Besides presenting films, we want people to explore all that Middleburg has to offer with its rich history, scenic beauty, warm hospitality, and glorious fall foliage."
Concentrating so much of her time and energy on the resort, the film festival and her various charitable undertakings, Johnson has put her film producing and financing activities on the back burner. "If the right project some along, absolutely," she answers when asked about a return to active filmmaking.
"The Butler' was really a right project for me," she says. "I've known about this gentleman and thought that his story needed to be told."
Now in its sixth year, Johnson and her team look forward to building on their strong track record of bringing top quality films to Middleburg as well as attracting leading filmmakers and filmgoers from all over the world.
"From the beginning," Koch says, "our tag line has been 'Four days of fantastic films in a stunning setting,' and we want to continue to play to our strengths by presenting the 'best in film' while retaining the relaxed and intimate environment that sets us apart from other festivals."
Koch says Middleburg will continue to showcase diverse filmmakers and celebrate the "unsung heroes" of filmmaking like composers and cinematographers. As the festival moves forward, they would like to present film-related events throughout the year and also increase the festival's educational outreach and mentoring of future filmmakers. "Last but not least, we hope to increase the growing recognition of MFF as a 'must-stop' for films on the road to the Oscars—and a place where attendees can experience the very best in film, expand their understanding of the world through cinema, engage in fascinating conversation, and enjoy the warm hospitality and natural beauty of Middleburg."
Photo by Jeff Mason
The Films of Sheila Johnson
Salamander Hotels & Resorts and Middleburg Film Festival founder Sheila Johnson has executive produced a number of films including:
"Lee Daniels' The Butler" (2013): This award-winning drama is about a butler who served various presidents during 34 years in the White House. Lee Daniels directed the film, based on real-life presidential butler Eugene Allen.
"Ella es el Matador" (2009): "She is the Matador" follows the lives of two European women who have chosen bullfighting as their profession and the struggles they face both in and out of the "plaza de toros."
"A Powerful Noise" (2008): Filmmaker Tom Capello illuminates the struggles of three women living in Vietnam, Bosnia and Mali as they face poverty, prejudice, oppression and ethnic strife.
"Kicking It" (2008): Directed by Susan Koch and featuring actor Colin Farrell who narrated this moving documentary about six down-and-out people who played in the Homeless World Cup of soccer.
"The Other City" (2010): Susan Koch directed this documentary about the side of the nation's capital that few tourists ever get to see—the 3 percent of the population that is HIV positive.
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The #Broncos have made another coaching move, hiring former #Bears assistant Brandon Staley as their new outside LBs coach, source said. He'll have a few players to work with. Obviously, a lot of familiarity with Vic Fangio.
NFL Network insider Ian Rapoport reports the Denver Broncos have hired ex-Bears Brandon Staley to coach the team's outside linebackers. Also, league insider Adam Caplan tweets that Linebackers Coach Glenn Pires will not be back with the team.
Staley follows Broncos Head Coach Vic Fangio out of town after holding that position the last two seasons. That means Staley will go from coaching All-Pro pass-rusher Khalil Mack and 2016 first-round pick Leonard Floyd to getting his hands on All-Pro pass-rusher Von Miller and 2018 first-round stud Bradley Chubb. That's not a bad career move if it comes your way.
Pires' next stop is still to be decided, but it wouldn't be surprising if he jumps ship to Denver, too. Prior to joining John Fox's staff in 2015, Pires coached linebackers for the Falcons (2008-14), Dolphins (2003-07), Lions (2001-02), and Cardinals (1996-2000). With that type of experience under his belt, Pires should have no shortage of suitors.
With Staley and Pires on their way out, Chuck Pagano's staff is going to be in the market for new linebackers coaches. Rob Ryan and Ted Monachino have been rumored candidates who could be on the Bears' radar and both have experience coaching linebackers. Well, isn't that fitting!?
Coaching Chicago's linebackers should entice some top tier candidates. Because between the pass-rushing excellence of Mack, Floyd's upside, Roquan Smith's potential, and Danny Trevathan's veteran presence should be enough to put some interesting coaches on their radar.


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Vision for a radically different Downtown
Since its rezoning, Downtown Brooklyn has transformed into a mixed-use neighborhood with numerous commercial and residential spaces. A new vision plan aims to change the neighborhood even more.
The Downtown Brooklyn Public Realm Action Plan, created by the Downtown Brooklyn Partnership, was first unveiled in 2019. The plan calls for thousands of new trees, permanent shared streets, and enhanced bike infrastructure throughout the area.
The plan has sat idle for the past two years, until this past week when the Downtown Brooklyn Partnership revealed an updated and expanded version that factors in lessons learned from the pandemic.
"The pandemic has underscored the need to follow through on our public realm vision for a downtown that prioritizes people over cars and quality green spaces," said Partnership president Regina Myer. "This plan positions Downtown Brooklyn as a model for converting outdated infrastructure that no longer serves its constituents.
"Urban life has changed over the past decade," Myer added. "Our membership has come to understand that to be competitive, we have to be a great walkable downtown."
The updated plan calls for the transformation of Columbus Park, Albee Square, Fleet Street, and University Place into fully public parks. Secondly, and perhaps most ambitiously, the plan calls for Adams Street to be transformed into a "multi-modal" boulevard with wide bicycle and pedestrian connections to the Brooklyn Bridge.
Lastly, the plan calls for 1,000 new trees in the neighborhood and alterations to the preexisting network of dedicated bus lanes.
At an online event this past week, the group was joined by representatives from Bjarke Ingels Group (BIG Architects) and WXY architecture + urban design (WXY).
"Right now, the roads coming out of Manhattan are very angular," said Claire Weisz, a founding principal at WXY. "We're trying to slow down cars using curbs and create more spaces for planting, but also to create a sense of place."
Representatives from the Department of Transportation (DOT) and other transportation advocacy groups also offered input.
"This vision reinforces what we already know, reclaiming space from cars makes our city healthier, improves quality of life, and creates the urban spaces that will attract the businesses of the future," a DOT spokesperson said after the event.
"You need to have automated enforcement, and that needs to be expanded," says Danny Harris, executive director of Transportation Alternatives. "We have speed cameras, but they're not 24/7 and all across the city, even though we know how impactful they've been.
"We should have cameras for blocking bike lanes, too," he added. "We need to acknowledge that the infrastructure being built now isn't always respected by drivers."
Rob Freudenberg, vice president for Energy and Environment for the Regional Plan Association, called for even greater changes.
"The next mayor of New York City and the new City Council have a unique opportunity to reimagine streets and public space," he said. "If we see the city's 32,000 acres of roadway as one interconnected network of public space that can be improved, streets become a greater asset. We can leverage them to address our greatest challenges and improve resilience, mobility and economic opportunity."


Harvard University has a wealth of resources available. Below are some of the research centers and programs relevant to the research being conducted by our faculty and graduate students. For a full list of all Harvard research programs and centers see: http://www.harvard.edu/research.


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Norwich Order Not to Be Used to Circumvent Discovery
Worthware Systems International Inc v Raysoft Inc 2022 FC 1492 Pentney J
2,515,486 / Internet Based Cellular Telephone Service Accounting Method and System
In this decision Pentney J refused to grant a Norwich Order in the patent context. No new law was involved, but the decision is helpful nonetheless as we don't see many decisions on Norwich orders in the patent context.
The 486 patent relates to a method of inputting customer information at the point of sale of cellphones [7]. Worthware and Raysoft both provide point of sale software to dealers, and Worthware brought an infringement action against Raysoft alleging that Raysoft's product infringed. In this motion, Worthware sought a Norwich order against Raysoft's controlling mind—the sole director, President and Secretary, and only shareholder—Mr Lalancette, ordering him to provide information regarding Raysoft's clients. Worthware argued that it was entitled to know the identity of the clients, who would be direct infringers, both to be able to calculate its damages, and in order to bring proceedings against the dealers in the event that Raysoft would be unable to satisfy a damages award. Raysoft, on the other hand, argued that the parties operate in a small and highly competitive market, and that Worthware was seeking the names and addresses of Raysoft's dealers in order to try to sell them its software [20].
Pentney J refused to grant the order, primarily on the basis that Worthware had not established that Mr Lalancette is the only practical source of the information it seeks [21]. He emphasized that a Norwich Order is "extraordinary equitable relief" which is "an intrusive and extraordinary remedy that must be exercised with caution," [22], citing GEA v Ventra 2009 ONCA 619 [85]. The requirement that the party seeking the order must show that it is necessary because the party named is the only practical source of the information is therefore an "ironclad" element of the test. In this case, the defendant Raysoft itself also holds the necessary information, as was acknowledged by Worthware [24]–[25].
Moreover, Worthware had asked for the very information it now seeks during the examination for discovery of Mr. Lalancette, who testified as the Defendant Company's sole representative. Raysoft objected, and the CMJ refused to order production of Raysoft's client list, because "the discovery process does not serve to obtain names of potential witnesses for the sole purpose of starting an action against them… The jurisprudence has clearly and consistently discouraged such fishing expeditions…" [26]. This confirmed that Mr. Lalancette is not, in fact, the only practical source of the information [29].
More broadly, Pentney J pointed out that "a Norwich Order is not intended to be used to circumvent the normal discovery process in litigation" [34]. If Worthware was unsatisfied with the refusal of the order for disclosure of the client list, it should have appealed that decision, rather than trying an end run by way of a Norwich Order.
Another factor is that Worthware brought its motion for a Norwich Order almost four years after bringing its action against Raysoft, even though it knew all the key facts about how the alleged infringement operated; this called into question Worthware's motivation in deciding to seek extraordinary equitable relief [31]. Pentney J dismissed Worthware's argument about its doubts as to whether Raysoft would be able to satisfy any damages award as being unsupported by the evidence, and undermined by Worthware's failure to take any other steps to protect its position, such as asking for security for costs [32].
Posted by Norman at 5:00 AM 0 comments
Labels: Remedies
IPIC Subject Matter Test Properly Subject to Appeal
Canada (Attorney General) v Benjamin Moore & Co 2022 FCA 194 Rennie JA
2,695,130 / 2,695,146 (applications)
This decision relates to a procedural wrinkle in the Benjamin Moore litigation, which is set to clarify the law relating to patentable subject matter. The Commissioner had refused two of Benjamin Moore's applications on the basis that the claims were directed to non-statutory subject matter. Benjamin Moore appealed, and in Benjamin Moore 2022 FC 923, Gagné ACJ endorsed a particular test, proposed by the intervener, IPIC, for assessing patentable subject matter (see here). She then sent the applications back to CIPO for redetermination. The Attorney General had agreed that CIPO had used the wrong test, and that the files should be sent back for redetermination, but would have preferred that CIPO be instructed to decide the matter according to the principles set out in Choueifaty 2020 FC 837: [FC 39]. Significantly, Gagné ACJ instructed CIPO to use the IPIC test in paragraph 3 of the judgment itself.
The Attorney General then appealed. Benjamin Moore brought this motion to strike, arguing that the AG had no disagreement with the result—the files should be sent back for redetermination—and the appeal was brought to challenge the IPIC test. It is clear that the FCA, under the Federal Courts Act, s 27, only has jurisdiction to hear an appeal against the judgment, and Benjamin Moore argued that the appeal was in substance an appeal against the reasons.
The key question in this motion was therefore whether the appeal truly relates to the Federal Court's judgment, or to its reasons for that judgment: [14]. Rennie JA noted that whether an appeal is taken from the reasons or the judgment is not always self-evident. The central policy consideration is "whether the appeal is a veiled attempt to keep the benefit of the judgment but realign the reasons for judgment. Sometimes a party will be successful in the result, but will not like the manner by which they succeeded. Courts must always be vigilant to guard against appeals brought on this basis" [25].
Rennie JA held that in this case, the appeal was an appeal against the judgment, not just the reasons, and so the motion was quashed. He discussed two prior FCA decisions, in Yansane 2017 FCA 48 and Fournier 2019 FCA 265 affg 2018 FC 464. In Yansane, the FCA had noted at [17] that "the Court often simply directs that reconsideration take place in accordance with its reasons," and held that in such a case an appeal against the reasons was not permitted, as "only instructions explicitly stated in the judgment bind the subsequent decision-maker" [19]. In Fournier, the FC judgment stated that "The case is referred back to the Appeal Panel for reconsideration, taking into account these reasons." The appellant asked the court to uphold the judgment, in the sense of referring the matter back to the Appeal Panel, but asked the FCA to declare that the FC had erred in its interpretation of a point of law. The FCA held that this was an impermissible attempt to appeal the reasons, and the reference to the "taking into account these reasons" did not change the essence of the appeal:
[31] I am therefore of the view that the addition of that statement in the formal judgment is not sufficient to incorporate therein the reasons in their entirety, much less to make of that statement a strict direction or even a directed verdict. If it were otherwise, reasons would always open up the possibility of an appeal.
He distinguished these decisions on the basis that they related to situations which there was a general reference to the reasons in the formal judgment [19],[20], whereas in this case "paragraph 3 of the judgment lays out a test for the Commissioner that can be uniquely enforced, separately from the accompanying reasons" [22], and
paragraph 3 of the Federal Court's judgment is a specific direction in this respect, akin to a declaratory judgment. Consistent with [the prior cases], the specific direction in paragraph 3 forms part of the judgment and uniquely binds the Commissioner to a particular test in a way that the reasons alone do not [26].
This does distinguish the prior cases, though at first blush it might seem a bit formalistic. One response to that is simply to say that a line has to be drawn somewhere and any test that provides any degree of certainty has to be formalistic to some degree. Another response is that the distinction is by no means purely formal. Rennie JA noted that "This test responds to the only substantive consideration that was before the Federal Court, laying at the core of the Federal Court's formal judgment in the matter" [26]. The formal point and the substantive point go hand in hand: when the particular legal test is found in the judgment itself, this is a very good indication that the court considered it to lie at the core of the decision. For both those reasons, I do find the distinction drawn by Rennie JA to be persuasive.
With all that said, it's not entirely clear to me why the court has to be so vigilant to guard against a party seeking to "keep the benefit of the judgment but realign the reasons for judgment." Victory on the facts in a case is always welcome, but for parties who are repeat players in the litigation system, as is true for many patent litigants, the shape of the law may be much more important in the long run. If the decision goes against a party, they have a full opportunity to reargue the law on appeal, and it's not entirely clear to me why they should be denied that opportunity if the ruling goes in their favour, simply because the trial judge did not find the legal point important enough to put in the judgment itself. I'm sure there's an answer to that question in the voluminous jurisprudence on the US "case or controversy" requirement, but I won't pursue it, since the point is academic in this context, given that Rennie JA did allow the appeal to proceed.
Labels: Subject Matter
Routine Correction of Inventorship
Genentech, Inc v Canada (Commissioner of Patents) 2022 FC 1447 Manson J
This was a routine correction of inventorship under s 52. The application was supported by affidavits and it was established that the mistake arose through inadvertence. Manson J provided a useful summary of the relevant law at [11]–[14].
Labels: Varying Records
A (Kind Of) Successful Overbreadth Attack
Rovi Guides, Inc v BCE Inc 2022 FC 1388 Lafrenière J
2,336,870 / 2,339,629 / 2,425,482 / 2,514,585 / Interactive Television Program Guide / Internet Protocol Television
As discussed in my last post, in this decision Lafrenière J held that all of the asserted claims of Rovi's patents were invalid for anticipation and / or obviousness. The last post focused on remedial issues. This post discusses overbreadth.
As Lafrenière J put it, "A claim is overly broad and invalid if it asserts 'exclusive property or privilege in something the inventor did not actually invent'" [298]. In my articles on Overbreadth in Canadian Patent Law (2020) 33 IPJ 21 and (2021) 33 IPJ 147, I showed that overbreadth is functionally redundant in almost all cases in which it is invoked; that is, in almost all cases, the factual basis and reasoning leading to a finding of invalidity for overbreadth is exactly the same factual basis and reasoning leading to a finding of invalidity on some other standard ground, such as anticipation: see eg BVD v Canadian Celanese [1937] SCR 221. (The historical exception is Amfac (1986) 12 CPR(3d) 193 (FCA), which I argued was wrongly decided.)
Now, even though overbreadth is functionally redundant in almost all cases, that does not mean it is necessarily functionally redundant all cases; so, in my article I gave the example of the 'roads to Brighton' problem in which overbreadth might in principle play an independent role. In Seedlings 2021 FCA 154 [50] the FCA held that "overbreadth remains a proper ground of invalidity," but at the same time Locke JA acknowledged that "the overlap with other grounds of invalidity makes it difficult to define circumstances in which a patent claim would be invalid for overbreadth but not also invalid on other grounds" [52]. Since Seedlings, parties attacking a patent have attempted to give some independent force to an overbreadth attack, so far without success.
In this case the defendants made overbreadth attacks on two patents, one of which failed and one of which succeeded, albeit in obiter.
The overbreadth attack on the 870 patent was novel. The factual basis for the Defendants' attack was that the 870 patent claims priority from US provisional application 60/092,807 (the '807 Application'). One of the inventors of the 870 patent admitted that "the invention he made in July 1998 was limited to that which he described in the 807 Application" [300]. It was undisputed that the matter disclosed in the 807 Application has very limited overlap with the 870 patent: [301]–[302]. What the inventors claimed in the 870 Patent was therefore significantly broader than the 807 Application, and the Defendants argued that the 870 Claims are invalid on that basis [303].
Lafrenière J rejected this; he agreed with Rovi that "the 'invention made' is to be determined as of the filing date, not the priority date" [304]. This must be right, or overbreadth would swallow the claim date rules. The claim date is the filing date unless priority is claimed to a prior application "disclosing the subject-matter defined by the claim": s 28.1(1)(a)(i),(ii). If the subject-matter disclosed by the application as filed is broader than that in the priority document, the only consequence is that priority cannot be claimed. And that is on a claim by claim basis, as the term "claim date" indicates. Claims that are directed to subject-matter that was disclosed in the priority document can still claim priority. To invalidate the entire patent would upend that well-established system.
The overbreadth attack on the 482 patent was different in nature. The 482 patent relates to a system and method for automatic retrieval of on-demand media data so as to avoid interruption to prevent unacceptable delays in the display of the video-on-demand listings during periods of higher traffic or low bandwidth connections. Lafrenière J rejected a construction which would have included "manual only" retrieval of on-demand data, but nonetheless considered and accepted the Defendants' argument that if the 482 claims covered manual retrieval, they would be overbroad: [556]–[563].
On the claim construction point, as I understand it, Rovi wanted to argue that the claims included user-initiated download of on-demand data, presumably to bolster their infringement argument: see [562]. The claim at issue expressly requires "automatically retrieving" the on-demand data [473]–[474], and Rovi's expert had admitted that user initiated retrieval was not automatic retrieval [500]. So, the argument that the patent covered manual retrieval was a complete dud. This makes it a bit difficult to grasp the overbreadth argument, since the premise that the claim encompasses manual retrieval is without foundation.
Lafrenière J's discussion was understandably brief, given his holding on claim construction. Much of his discussion reviewed the evidence to the effect that the patent was entirely addressed to technology using automatic retrieval, which is of course consistent with Lafrenière J's finding on claim construction. Manual retrieval simply was not addressed.
With this background, the key discussion was that
[561] I agree with [the Defendants' expert] that the Skilled Person would understand that the invention described in the 482 Patent requires "automatically retrieving" at least some of the on-demand media data without a user indication to access it because "manual only retrieving" the on-demand media data causes the very undesirable consequences that the 482 Patent seeks to avoid.
[563] Dr. Robinson's uncontested evidence is that there is no disclosure in the 482 Patent about manually retrieving on-demand media data. Therefore, to the extent such a claim is made in the 482 Patent, the claim is broader than any invention disclosed.
So, the gist of it seems to be that the 482 patent made no mention of manual downloading, so if it had claimed manual downloading, it would have been overbroad, in much the same way as the 482 patent would have been overbroad had it claimed a compound that cures cancer on the basis of a description focusing entirely on interactive television guide technology.
More broadly, a claim is overbroad if it claims subject-matter that is entirely unrelated to the disclosure. That seems reasonable enough, but the question is whether this raises overbreadth as an independent ground of invalidity. I suspect that in the vast majority of cases, a patent that claims subject-matter unrelated to the disclosure would be invalid for insufficiency. Put another way, is it possible for a patent to have claim to subject-matter that is entirely unrelated to the disclosure, in which the claim is nonetheless not invalid on any traditional ground? What if the 482 patent in this case had omitted the word "automatically" in the claim, and it was held that the claim, properly construed, encompassed manual retrieval. Suppose also that automatic retrieval was technically difficult, and the disclosure exclusively addressed automatic disclosure without mentioning manual retrieval; but at the same time, manual retrieval was not technically difficult and could easily be implemented by a skilled person in light of their common general knowledge. Would that patent be invalid simply on the basis the description did not mention manual downloading ie even if manual downloading was novel and non-obvious? I'm not sure.
My sense is that the success of the overbreadth argument in this case turned on the fact that it was premised on a claim construction that had no foundation in the patent. This makes it difficult to draw broader lessons from the analysis. It's not very surprising that if we give a claim a construction that has no basis in the patent, the claim will be invalid in light of that patent. I doubt that observation is going to generate any independent role for overbreadth in the context of a properly construed claim.
Labels: Overbreadth
Accounting and Injunction Denied Due to Patent Holdup
In this decision Lafrenière J held that all of the asserted claims of Rovi's patents were invalid for anticipation and / or obviousness in an analysis that turned entirely on the facts. Infringement was largely conceded [142]. The most import aspect of the decision was Lafrenière J's discussion of remedies, though it was strictly obiter given his holding on validity [578]. Lafrenière J held that even if the patents had been valid and infringed, he would have denied both an accounting of profits and injunctive relief, expressly on the basis that "the present case exemplifies the patent holdup problem" [652]. In my view, Lafrenière J was right in both his analysis and his conclusions.
The trial in this case took place shortly after completion of the trial of the infringement action brought earlier by Rovi against Videotron, also before Lafrenière J, resulting in Rovi v Videotron 2022 FC 874* [36]. Rovi v Videotron involved two of the same patents, namely the 629 and 870 patents, as well as two additional patents, 2,337,061 and 2,730,344. (I've counted a total of 12 different Rovi patents that have popped up in various motions and other litigation, and no doubt this is only a selection from a large portfolio.) As discussed here, the result in Rovi v Videotron was much the same as in this case: Lafrenière J held all of Rovi's asserted claims to be invalid, and he would have denied an accounting. Lafrenière J's remedial analysis was also very similar in Videotron, though this decision is somewhat more explicit in discussing the holdup problem.
It is fortunate for the development of the law that this was a particularly clear case of holdup on the facts; it sets out the principle that an accounting and injunctive relief can be denied to address holdup, while leaving it to future cases to address more difficult borderline cases. I can't say that the principle is now established, given that the remedial holdings in BCE and Videotron were obiter decisions at the trial level. But I hope they will be influential nonetheless, as Lafrenière J's decisions strike me as a sound basis for further development of the law of patent remedies in the context of patent holdup and patent assertion entities.
A couple of preliminary points. This post is much too long, but to paraphrase Pascal, I didn't have time to write a shorter one. I am going to blame Covid brain fog for the length and delay. Second, this is a very long decision, dealing with multiple patents and issues, and it would be very helpful if Lafrenière had asked his clerk to create a hyperlinked table of contents to go at the start of the decision. The decision is well-structured with headers (like most FC decisions), so all that would be required is to generate the ToC. I've seen this done in a number of decisions, and I'd like to see it become routine, at least for long decisions.
Labels: Accounting of Profits, Injunction, Permanent Injunction, Remedies
Posting to Resume Soon
I thought I'd post an update since it's been an unusually long time since I last posted. I'm not giving up on the blog. There was a long stretch in October were there weren't any substantive decisions released. Then, when I was halfway through a long post on Rovi Guides 2022 FC 1388, I got hit by Covid. I hope to start posting again later this week.
Posted by Norman at 11:50 AM 0 comments