Recent District Court Decisions Hold False Marking to Heightened Pleading Requirements

Recent decisions from the Federal Circuit have not provided defendants with any “silver bullets” to obtain early dismissal of cases alleging false patent marking. To the contrary, these decisions (which established that the fine for false marking is based on each article marked and confirmed that a product marked with an expired patent number is indeed an unpatented article), may serve to embolden relators and result in them bringing additional false marking cases. Although the standard for pleading false marking cases has not yet been addressed by the Federal Circuit, recent district court decisions have been holding false marking allegations to a higher pleading standard under Fed. R. Civ. P. 9(b) and dismissing cases that fail to meet this standard. These district court cases may provide some hope to defendants in false marking cases.


In a Memorandum Opinion dated June 17, 2010 in Simonian v. Cisco Systems, 10-CV-1306 (N.D. Ill), Judge Der-Yeghiayan dismissed Mr. Simonian’s complaint on Cisco’s motion to dismiss under Rule 12(b)(6). In dismissing the complaint, the Court acknowledged that there was no binding precedent on point, but reasoned that false marking allegations are fraud-based claims and therefore “are subject to the heightened pleading requirements of Rule 9(b).” Opinion at 6. With respect to the intent prong of the false marking claims, Mr. Simonian alleged, upon information and belief, that Cisco is “a sophisticated company and has many decades of experience applying for, obtaining, and/or litigating patents.” The court found that this general allegation was “unsupported by specific facts,” and that “Simonian has failed to plead specific facts showing Cisco’s knowledge of the mismarking or its intent to deceive the public.” Opinion at 8. As such, the Court held that “Simonian’s complaint does not meet the heightened pleading requirements of Rule 9(b)” and dismissed the complaint. The court dismissed Simonian’s claims without prejudice, however, and specifically provide that Mr. Simonian may file a motion for leave to file an amended complaint. (Simonian has since filed a motion seeking leave to file an amended complaint and Cisco has filed are opposition to this motion, which is now before the court.)

Similarly, in Advanced Cartridge Technologies v. Lexmark, Int’l., Judge Merryday dismissed Advanced Cartridge Technologies’ false marking allegations for failing to meet the pleading requirements with respect to intent under Rule 9(b).  Advanced Cartridge Technologies v. Lexmark, Int’l, 10-CV-486 (M.D. Fl.), see Order dated June 30, 2010 (“Order”).   In this case, the complaint simply stated that “defendant knows, or reasonably should know, that marking the Cartridge Products with patents that do not cover the Cartridge Products, or patents that are invalid or expired, will deceive the public.” See Order at 2. As to this allegation, the court concluded that “[p]roviding only sparse factual detail, the complaint utterly fails to ‘state with particularity the circumstances constituting fraud.’” Order at 2.  As with the Simonian case, the plaintiff/relator was given leave to file an amended complaint to attempt to remedy the inadequate pleadings.

Because these cases were dismissed without prejudice, the plaintiff/relator has been given a second bite at the apple. It remains to be seen whether these plaintiff’s will be able to plead sufficient facts, even upon information and belief, to meet the heightened pleading requirement under Rule 9. It will also be interesting to see if other courts follow these cases in holding false marking cases to the heightened pleading standards under Fed. R. Civ. P. 9(b) and whether this will provide a substantial change in litigating false marking cases.

Bilksi Comes Out With A Wimper, Rather Than With A Bang

After receiving dozens of amicus briefs and pondering the case for close to seven months following oral argument, the Supreme Court has finally released its much anticipated decision in Bilsky. Bilski v. Kappos, 561 U.S. ___(2010).   In short, the Court affirmed the judgment of the en banc Federal Circuit that the claims of the Bilski patent are not directed to patent eligible subject matter. In doing so, however, the Court specifically rejected the Federal Circuit's “machine or transformation test” as the sole test for patent eligibility for process or method claims. Instead, it viewed Bilski’s claims as “abstract ideas” that are outside the scope of patent eligible subject matter.

This result is not too surprising to this commentator.   As I mentioned last June when cert was granted, "[the Supreme Court's] past decisions over the years on the question of patentable subject matter, however, tend to avoid bright line standards and lean towards a more liberal scope of patentable subject matter, but certainly don’t embrace the scope of “anything under the sun made by man” as the Court once suggested.
The following quotations are from the syllabus and/or opinion of the Court and reflect the Court's holding. 

• "The machine-or-transformation test is not the sole test for patent eligibility under §101. The Court’s precedents establish that although that test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible “process” under §101."

• "[T]he Federal Circuit incorrectly concluded that this Court has endorsed the machine-or-transformation test as the exclusive test. Recent authorities show that the test was never intended to be exhaustive or exclusive."

• "Section 101 similarly precludes a reading of the term “process” that would categorically exclude business methods. The term “method” within §100(b)’s “process” definition, at least as a textual matter and before other consulting other Patent Act limitations and this Court’s precedents, may include at least some methods of doing business."

• "Section 273 thus clarifies the understanding that a business method is simply one kind of“method” that is, at least in some circumstances, eligible for patenting under §101."

• "This Court’s precedents establish that the machine-or transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101. The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible “process.”

• "[I]n deciding whether previously unforeseen inventions qualify as patentable “process[es],” it may not make sense to require courts to confine themselves to asking the questions posed by the machine-or-transformation test."

• "Even though petitioners’ application is not categorically outside of §101 under the two broad and  textual approaches the Court rejects today, that does not mean it is a “process” under §101."

• "Rather than adopting categorical rules that might have wide-ranging and unforeseen impacts, the Court resolves this case narrowly on the basis of this Court’s decisions in Benson, Flook, and Diehr, which show that petitioners’ claims are not patentable processes because they are attempts to patent abstract ideas. Indeed, all members of the Court agree that the patent application at issue here falls outside of §101 because it claims an abstract idea."

• "The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook. Allowing petitioners to patent risk hedging would preempt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea."

• "Petitioners’ remaining claims are broad examples of how hedging can be used in commodities and energy markets. Flook established that limiting an abstract idea to one field of use or adding token post solution components did not make the concept patentable. That is exactly what the remaining claims in petitioners’ application do."

• "Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act’s text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. The Court, therefore, need not define further what constitutes a patentable “process,” beyond pointing to the definition of that term provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr."

• "And nothing in today’s opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past."

More to come regarding the concurring opinions of Justice Stevens (joined by Justices Ginsburg, Breyer and Sotomayor) and Justice Breyer (joined by Justice Scalia) in a later post.



[Many thanks to Randall Berman, an associate with Dorsey & Whitney, for his assistance in quickly preparing this post]

False Marking Cases Are Likely to Live Another Day

Articles Marked With Expired Patent Numbers Are
"Falsely Marked," But Intent Will Be More Difficult For Relators to Establish

As reported in earlier posts, the number of false patent marking cases exploded following the Federal Circuit’s holding in The Forest Group v. Bon Tool, 590 F. 3d 1295 (Fed. Cir. 2009) that held that every falsely marked product constitutes a separate offense subject to fine under 35 U.S.C. 292. The vast majority of the recently filed false marking cases are based on the theory that a product marked with an expired patent number is an “unpatented article.” This issue was squarely presented in Pequignot v. Solo Cup, where the district court held that this was indeed the case. Many false marking defendants have been anxiously awaiting the Federal Circuit decision in Pequignot hoping that the Federal Circuit would reverse the finding of the district court with respect to expired patents and provide an opportunity to quickly defeat or dismiss many of these cases. Those folks will now be disappointed. In its June 10, 2010 decision, the Federal Circuit unequivocally held that “articles marked with expired patent numbers are falsely marked.” (See http://cafc.bna.com/09-1547.pdf)

Of course, finding that a product is falsely marked is not the end of the inquiry. In order to be liable for false marking, the marker must act “for the purpose of deceiving the public.” Under the Federal Circuit’s holding in Clontech Labs. v. Invitrogen, this intent element can be satisfied if it is proven that the statements about marking were false and the marking party knew the statements were false. It is here where Solo prevailed and where the Federal Circuit provided some helpful guidance to those accused of false marking. First, the Federal Circuit clearly held that Clontech only establishes a presumption of intent and that such a presumption can be rebutted with evidence of good faith. Second, the burden of proof needed to rebut the Clontech presumption is only a preponderance of evidence. Finally, the court agreed that when ‘the false markings at issue are expired patents that had previously covered the marked products, the Clontech presumption of intent to deceive is weaker” and therefore easier to rebut. In this case, Solo was able to rebut the Clontech presumption by establishing that the marking at issue was made for legitimate business reasons not related to “deceiving the public” and that it had acted consistently with the advice of counsel it had received. As both the district court and Federal Circuit noted, “Pequignot has provided not a scintilla of evidence that Solo ever ignored its counsel’s advise or, more importantly manifested any actual deceptive intent.”


In addition to expired patent numbers, Solo also marked certain packaging materials used for both patented and unpatented articles using the language that the products “may be covered” and referenced a website where more specific patent information could be found. The Federal Circuit noted, in dicta, that “it is highly questionable whether such a statement could be made ‘for purposes of deceiving the public,’ when the public would not reasonably be deceived into believing the products were definitely covered by a patent.”  In finding no intent to deceive the court noted that Solo proffered evidence to rebut a presumption of intent, including “provid[ing] the consumer with an easy way to verify whether a specific product was covered; the consumer could ‘contact www.solocup.com’ for details.” Thus, while the broad language was still an act of “false marking,” there was ample evidence to rebut a presumption of intent to deceive the public.

Some takeaways from Pequignot:

• Marking with expired patents is “false marking.” This case is not a silver bullet that will result in false marking cases being dismissed en mass.

• If marking is false, and known by the marker to be false, there is a rebuttable presumption of intent to deceive the public.

• The presumption of intent to deceive the public can be rebutted with a preponderance of evidence establishing good faith reasons for the marking and/or reasons mitigating bad faith

• Referring to a collection of products and patents and indicating that the product “may be covered” still results in “false marking” but for a relator to establish that a marker had the requisite intent to deceive with such equivocal language should be difficult.

Federal Circuit Further Refines Design Patent Analysis Post-Egyptian Goddess

Over the last few months, the Federal Circuit has issued three precedential opinions that provide further guidance (or some might say misguidance) regarding the analysis of design patents in the post Egyptian Goddess era.

Claim Construction and Functional Elements in Design Patents

NO INFRINGEMENT

On March 9, 2010, the Federal Circuit decided David A. Richardson v. Stanley Works, Inc. (2009-1354) and addressed the manner in which functional elements of a design patent should be addressed in claim construction and infringement of design patents. The patented design and a representative drawing of the accused "fubar" product are illustrated above. The district court construed Richardson's design patent by noting that what was claimed was that "shown and described in the '167 patent." The district court then continued by identifying those elements that were ornamental and excluding those elements that were deemed functional. Having so construed the claim, the district court held that the accused "fubar" did not infringe Richardson's design patent.

The Federal Circuit affirmed. With respect to claim construction, the Federal Circuit rejected the Richardson's position that Egyptian Goddess effectively overruled cases such as OddzOn Prods. v. Just Toys, Inc., 122 F.3d 1396 (Fed. Cir. 1997) where the court held that "[w]here a design contains both functional and non-functional elements, the scope of the claim must be construed in order to identify the non-functional aspects of the design as shown in the patent." The court further stated that "[a] claim to a design containing numerous functional elements, such as here, necessarily mandates a narrow construction." The court went on to discount the contribution of a myriad of functional elements in the claimed design and agreed with the district court's conclusion that "[f]rom the perspective of an ordinary observer familiar with the prior art, the overall visual effect of the Fubar is significantly different from the Stepclaw [patented design]."  From this ordinary observer's point of view, this holding had way more analysis than was needed to affirm - the two designs shown above are just too different.

Invalidity of Design Patents
On December 17, 2009, the court decided International Seaway Trading Corp. v. Walgreens Corp. (2009-1237), and held that the test for anticipation of a design patent is the same as the test for infringement, which is the "ordinary observer" test. The point of novelty test, abolished from the infringement analysis in Egyptian Goddess, is now a thing of the past in the validity context as well.  As a result, a piece of prior art need not be exact to anticipate a design patent claim, it must only satisfy the standards of the "ordinary observer" test.  "Just as 'minor differences between a patented design and an accused article's design cannot, and shall not, prevent a finding of infringement,' [cite omitted] so too minor differences cannot prevent a finding of anticipation."

Although dicta, the International Seaway court also discussed the test for obviousness of design patents. Here, the court stated that '[f]or design patents, the role of one skilled in the art in the obviousness context lies only in determining whether to combine earlier references to arrive at a single piece of art for comparison with the potential design or to modify a single prior art reference. Once that piece of prior art has been constructed, obviousness, like anticipation, requires application of the ordinary observer test, not the view of one skilled in the art." This sounds like something new. Indeed, in setting out this proposition, the court did not cite any precedent. Further, the "ordinary observer" test in this context may be viewed as inconsistent with the language of 35 U.S.C. 103(a) which states that a "patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." As noted above, the discussion regarding obviousness is properly viewed as dicta.  It will be interesting to see how the law of obviousness of design patent claims develops in future cases, or if it become essentially moot in view of the broader play that the "ordinary observer" gives to the anticipation analysis.

Will differences in the insole design prevent anticipation?

The subject matter in Int'l Seaway was a design for foam clogs. The Federal Circuit held that the district court incorrectly omitted certain features (the insole design illustrated above) from its validity analysis, based on whether those features would be visible during "normal use." The Federal Circuit held that "normal use should not be limited to only one phase or portion of the normal use lifetime of an accused product," such as the time when a shoe is being worn. Instead, "normal use in the design patent context extends form the completion of manufacture or assembly until the ultimate destruction, loss, or disappearance of the article." Noting that the insole design depicted in the patent would be visible at various points in the life cycle of the article, the Federal Circuit found that it was an error for the district court to ignore these features in the validity analysis simply because they were not visible when the shoe was being worn. The court remanded for the district court "for further proceedings on the limited issue of whether the differences in the insole patterns between the prior (Crocs) are and the patented designs bar a finding of anticipation or obviousness." This remand order is somewhat troubling. As noted in J. Clevenger's dissent, "the ordinary observer test requires assessment of the designs as a whole." "[T]he differences in the inner sole designs must be appreciated in conjunction with all of the design differences." J. Clevenger aptly concludes that "[p]artial judgments of anticipation on segments of a design prohibit assessment of designs as a whole, in violation of long-standing law... ."  Although preaching a "design as a whole" analysis, the majority's holding and remand order is clearly fostering an approach that will encourage a district court's "dissection of a design as a whole into its component pieces."

Claim Construction and Domestic Industry for Design Patents
On February 24, 2010, the Federal Circuit issued its opinion in Crocs, Inc. v. Int'l Trade Commission (2008-1596). In this case, the court reversed ITC determinations of no infringement and no domestic industry of Crocs' design patent. Despite earlier warnings from the Federal Circuit that construing a design patent claim in words, rather than by simple reference to the figures, was a risky proposition, the ITC issued a narrow claim construction that focused on areas of difference between the claimed design and the accused product. The Federal Circuit criticized the commission’s "concentration on small differences in isolation distracted from the overall impression of the claimed ornamental features." Instead, "[t]he proper construction requires a side-by-side view of the drawings of the [patent design] and the accused products." Despite some obvious differences apparent (to me at least) in some to these comparisons, the court found that "these side-by-side comparisons...suggest that an ordinary observer, familiar with the prior art designs would be deceived into believing the accused products are the same as the patented design."  Unfortunately, the Federal Circuit opinion does not reference the "prior art designs," so it is not clear how to evaluate the differences between the claimed design and the accused products.  (An example of the images shown in the Federal Circuit opinion are shown below in the first two images (side view).  The top view illustrated below as compared with Fig. 6 of the patent where not part of the Federal Circuit's side-by-side comparison.  I don't know that I would be deceived here, but I suppose that reasonable "ordinary observers" are free to differ.) 

"NEARLY IDENTICAL" - DESIGN PATENT INFRINGED

With respect to the domestic industry requirement, the court found that Crocs' products were indeed within the scope of the design patent and those products therefore satisfied the "technical prong" of the domestic industry requirement.

False Marking Revisited - The New Wave of Patent Prospecting Is On

In my December 30, 2009 post, I speculated that “the holding in the Forest Group may still create an incentive for more qui tam actions being brought for false marking. After all, even a fraction of a penny applied to a billion items can still amount to millions of dollars in potential recovery. [The holding in Forest Group] may invigorate a new class of litigation prospectors… .” A short two months later, it is clear that this is indeed the case.

Based on case filings as reported by Justin Gray, on his Gray on Claims blog, ( http://www.grayonclaims.com/false-marking-case-information ), during the period from September 5, 2007 through November 13, 2009, only ten cases were filed alleging false patent marking. In the two month period since December 30, 2009, at least 69 false marking cases have been filed. These cases have been filed by twenty two (22) different plaintiffs. One plaintiff, Mr. Simonian, is the named party in 28 cases, another, Dr. Hollander, is the named plaintiff in seven cases. Most, if not all, of these cases are based on a manufacturer marking product with patents that are now expired.

Clearly, false marking is an area that will continue to be exploited by a new breed of plaintiffs during 2010. As I said just before the new year, given this “new class of litigation prospectors, the time is right to review your patent marking and clean up any marking that may no longer be applicable.”

Fine for False Marking: Per offense = $$ Per Article

False marking gained a bit of publicity this year with a number of qui tam suits being filed against companies who allegedly violated 35 U.S.C. 292 by marking products with expired patents. (See e.g., Public Patent Foundation, Inc v. Cumberland Packing Corp, 09-cv-04360. S.D.N.Y.; Perquignot v. Solo Cup Co., 07 cv 897, E.D.Va.).

The elements of a false marking claim are fairly straight forward: (1) marking an unpatented article with the word “patent” or other indication that the article is patented and (2) intent to deceive the public. Under Section 292, the penalty for false marking is that the party “shall be fined not more than $500 for every such offense.” Section 292 also includes a qui tam provision that provides that “any person may sue for the penalty, in which event one-half shall to the person suing and the other to the use of the United States.” What was unclear, until now, was whether “every such offense” was to be applied on a per article basis or as a single fine for a continuous act of marking. The difference is clearly huge. Would a defendant such as Cumberland Packing Corp. be facing a single fine of up to $500 or facing this fine for each and every one of the billions of packets of Sweet n’ Low that it sold?

In The Forest Group, Inc. v. Bon Tool Company, 2009-1044, the Federal Circuit resolved the debate and held that “per offense” means per article marked, and not a single fine for continuous false marking. In tempering this holding somewhat, the Federal Circuit noted the statute requires a fine of “not more than $500” and “by allowing a range of penalties, the statute provides district courts the discretion to strike a balance between encouraging enforcement of an important public policy and imposing disproportionately large penalties for small, inexpensive items produced in large quantities. In the case of inexpensive mass-produced articles, a court has the discretion to determine that a fraction of a penny per article is a proper penalty.”

Even with the guidance provided that would support fines of only “a fraction of a penny per article,” the holding in the Forest Group may still create an incentive for more qui tam actions being brought for false marking. After all, even a fraction of a penny applied to a billion items can still amount to millions of dollars in potential recovery. With the new year approaching, and new guidance from the Federal Circuit that may invigorate a new class of litigation prospectors, the time is right to review your patent marking and clean up any marking that may no longer be applicable.

Reflections On The Erosion of Method Claims

It wasn’t that long ago that patent practitioners held the view that means-plus-function claims were the broadest and best way to protect an invention. Over time, many learned (the hard way) that this isn’t true anymore. With means-plus-function claims being construed narrowly in view of the specification, it became increasingly popular to include method claims to cover the process taking place in the described apparatus. After all, what could be better than not being limited by any structural limitations? Well, as it turns out, the last couple of years have not been particularly kind to method claims.

Patentable Subject Matter:

Today the Supreme Court is hearing oral argument in Bilsky, a case that many feel will significantly redefine the scope of patentable subject matter for method claims. (And providing motivation for today's musings.) Bilsky is the culmination of at least a two year trend at the Federal Circuit where 35 U.S.C. 101 has been increasingly applied as the basis for denying patent protection for claims directed to methods. The Federal Circuit's now infamous “machine or transformation test,” set forth in Bilsky represents a considerable narrowing of patentable subject matter for methods. Clearly, those post-State Street feel good days for business method patents are behind us for the moment. But, Bilsky and Section 101 is a subject all its own (and the subject to countless other posts and articles), so lets move on to some other issues.

Infringement of Method Claims

Divided Infringement:
Last year, in Muni-Auction v. Thomas, 532 F. 3d 1318 (Fed Cir. 2008) the Federal Circuit addressed the issue of infringement of a method claim when two or more entities were required to act in order to perform all of the steps of a claimed method. In the patent in dispute in Muni-Auction “at least the inputting step of claim 1 is completed by the bidder, whereas at least a majority of the remaining steps are performed by the auctioner’s system.” Id. at 1328. In finding that there was no direct infringement (and therefore no predicate for third party liability based on inducement or contributory infringement) the Federal Circuit looked to the relationship between the bidder and the auctioner. The court held that:

Accordingly, where the actions of multiple parties combine to perform every step of a claimed method, the claim is directly infringed only if one party exercises “control or direction” over the entire process such that every step is attributable to the controlling party, i.e., the “mastermind.” [Citation omitted] At the other end of this multi-party spectrum, mere “arms-length cooperation” will not give rise to direct infringement by any party.

* * *
Under BMC Resources, the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously liable for the acts committed by another party that are required to complete performance of a claimed method.

Although the holding in Muni-Auction is consistent with earlier cases on the issue of divided infringement, such as BMC Resources v. Paymentech, L.P., 498 F.3d. 1373 (Fed. Cir. 2007), this decision seems to raise the bar regarding the nature of the relationship required in order to find liability under a “divided infringement” theory. Under Muni-Auction, to establish infringement of a method claim under a divided infringement theory, one must not only show that the entities involved perform all of the steps within the scope of the claim, but must also establish a close legal relationship among those entities.

Steps performed Abroad:

In August, an en banc Federal Circuit addressed whether a method claim could be infringed under 35 U.S.C. 271(f). The Court held that “because one cannot supply the step of a method, Section 271(f) cannot apply to method or process patents.” Cardiac Pacemakers v. St. Jude Medical, 2007-1296 (Fed. Cir., August 19, 2009). The court further held that “271(f) does not encompass devices that may be used to practice a patented method.” Id. at 30. Thus, a device built in the United States that is capable of performing a patented method, but does not actually perform that method in the United States, does not infringe a claim to the patented method under 35 U.S.C. 271(a) or (f). Again, without direct infringement, there is no basis for assertions of third party liability based on threats of inducement or contributory infringement.

Going back a few years, in NTP v. Research in Motion, the Federal Circuit held that “a process cannot be used ‘within’ the United States as required by section 271(a) unless each of the steps if performed within this country.” 418 F.3d 1282, 1318 (Fed. Cir. 2005)(en banc)(emphasis added). In contrast, the Court also held that “use of a claimed system under section 271(a) is the place at which the system as a whole is put into service, i.e., the place where control of the system is exercised and beneficial use of the system obtained.” Id. at 1317 (emphasis added). Unlike the method claim, for the system claim, the Federal Circuit upheld the finding of infringement even though one component of the claimed system was not present in the United States.

Conclusion

Whether the Supreme Court limits or expands the scope of patentable subject matter in Bilsky, it is apparent that the scope of method claims have already been limited. For those who thought (or just hoped) that method claims were the next best thing since means-plus-function claims…well, just like with means-plus-function claims, this was a good theory put to rest by subsequent case law. Its now time to adapt again.


Common Sense Practice Note: Things that today are considered "conventional wisdom" may not always have been considered "conventional" in the past, and may not always be considered "wisdom" in the future. For patent practitioners, the best strategy remains timeless - keep applying for claims of varying format, varying subject matter and varying scope, since one never knows what tomorrow may bring.