US-CERT Incident Reporting System

Here are some resources if your cyber resources have been breached. Note the form doesnot use CAPTCHA at all

US-CERT Incident Reporting System (their head Randy Vickers quit last week)

https://forms.us-cert.gov/report/

Using the US-CERT Incident Reporting SystemIn order for us to respond appropriately, please answer the questions as completely and accurately as possible. Questions that must be answered are labeled “Required”. As always, we will protect your sensitive information. This web site uses Secure Sockets Layer (SSL) to provide secure communications. Your browser must allow at least 40-bit encryption. This method of communication is much more secure than unencrypted email.  Continue reading “US-CERT Incident Reporting System”

Protected: Happy Labour Day to American Stats-ical Association

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The Mommy Track

Wage_labour
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A new paper quantitatively analyzes the impact of child bearing on women. Summary-

Women [who score in the upper third on a standardized test] have a net 8 percent reduction in pay during the first five years after giving birth

From http://papers.nber.org/papers/w16582

Having a child lowers a woman’s lifetime earnings, but how much depends upon her skill level. In The Mommy Track Divides: The Impact of Childbearing on Wages of Women of Differing Skill Levels (NBER Working Paper No. 16582), co-authors Elizabeth Ty Wilde, Lily Batchelder, and David Ellwood estimate that having a child costs the average high skilled woman $230,000 in lost lifetime wages relative to similar women who never gave birth. By comparison, low skilled women experience a lifetime wage loss of only $49,000.

Using the 1979 National Longitudinal Survey of Youth (NLSY), Wilde et. al. divided women into high, medium, and low skill categories based on their Armed Forces Qualification Test (AFQT) scores. The authors use these skill categories, combined with earnings, labor force participation, and family formation data, to chart the labor market progress of women before and after childbirth, from ages 14-to-21 in 1979 through 41-to-49 in 2006, this study’s final sample year.

High scoring and low scoring women differed in a number of ways. While 70-75 percent of higher scoring women work full-time all year prior to their first birth, only 55-60 percent of low scoring women do. As they age, the high scoring women enjoy steeper wage growth than low scoring women; low scoring women’s wages do not change much if they reenter the labor market after they have their first child. Five years after the first birth, about 35 percent of each group is working full-time. However, the high scoring women who are not working full-time are more likely to be working part-time than the low scoring women, who are more likely to leave the workforce entirely.

and

Men’s earning profiles are relatively unaffected by having children although men who never have children earn less on average than those who do. High scoring women who have children late also tend to earn more than high scoring childless women. Their earnings advantage occurs before they have children and narrows substantially after they become mothers.

Carole-Ann’s 2011 Predictions for Decision Management

Carole-Ann’s 2011 Predictions for Decision Management

For Ajay Ohri on DecisionStats.com

What were the top 5 events in 2010 in your field?
  1. Maturity: the Decision Management space was made up of technology vendors, big and small, that typically focused on one or two aspects of this discipline.  Over the past few years, we have seen a lot of consolidation in the industry – first with Business Intelligence (BI) then Business Process Management (BPM) and lately in Business Rules Management (BRM) and Advanced Analytics.  As a result the giant Platform vendors have helped create visibility for this discipline.  Lots of tiny clues finally bubbled up in 2010 to attest of the increasing activity around Decision Management.  For example, more products than ever were named Decision Manager; companies advertised for Decision Managers as a job title in their job section; most people understand what I do when I am introduced in a social setting!
  2. Boredom: unfortunately, as the industry matures, inevitably innovation slows down…  At the main BRMS shows we heard here and there complaints that the technology was stalling.  We heard it from vendors like Red Hat (Drools) and we heard it from bored end-users hoping for some excitement at Business Rules Forum’s vendor panel.  They sadly did not get it
  3. Scrum: I am not thinking about the methodology there!  If you have ever seen a rugby game, you can probably understand why this is the term that comes to mind when I look at the messy & confusing technology landscape.  Feet blindly try to kick the ball out while superhuman forces are moving randomly the whole pack – or so it felt when I played!  Business Users in search of Business Solutions are facing more and more technology choices that feel like comparing apples to oranges.  There is value in all of them and each one addresses a specific aspect of Decision Management but I regret that the industry did not simplify the picture in 2010.  On the contrary!  Many buzzwords were created or at least made popular last year, creating even more confusion on a muddy field.  A few examples: Social CRM, Collaborative Decision Making, Adaptive Case Management, etc.  Don’t take me wrong, I *do* like the technologies.  I sympathize with the decision maker that is trying to pick the right solution though.
  4. Information: Analytics have been used for years of course but the volume of data surrounding us has been growing to unparalleled levels.  We can blame or thank (depending on our perspective) Social Media for that.  Sites like Facebook and LinkedIn have made it possible and easy to publish relevant (as well as fluffy) information in real-time.  As we all started to get the hang of it and potentially over-publish, technology evolved to enable the storage, correlation and analysis of humongous volumes of data that we could not dream of before.  25 billion tweets were posted in 2010.  Every month, over 30 billion pieces of data are shared on Facebook alone.  This is not just about vanity and marketing though.  This data can be leveraged for the greater good.  Carlos pointed to some fascinating facts about catastrophic event response team getting organized thanks to crowd-sourced information.  We are also seeing, in the Decision management world, more and more applicability for those very technology that have been developed for the needs of Big Data – I’ll name for example Hadoop that Carlos (yet again) discussed in his talks at Rules Fest end of 2009 and 2010.
  5. Self-Organization: it may be a side effect of the Social Media movement but I must admit that I was impressed by the success of self-organizing initiatives.  Granted, this last trend has nothing to do with Decision Management per se but I think it is a great evolution worth noting.  Let me point to a couple of examples.  I usually attend traditional conferences and tradeshows in which the content can be good but is sometimes terrible.  I was pleasantly surprised by the professionalism and attendance at *un-conferences* such as P-Camp (P stands for Product – an event for Product Managers).  When you think about it, it is already difficult to get a show together when people are dedicated to the tasks.  How crazy is it to have volunteers set one up with no budget and no agenda?  Well, people simply show up to do their part and everyone has fun voting on-site for what seems the most appealing content at the time.  Crowdsourcing applied to shows: it works!  Similar experience with meetups or tweetups.  I also enjoyed attending some impromptu Twitter jam sessions on a given topic.  Social Media is certainly helping people reach out and get together in person or virtually and that is wonderful!

A segment of a social network
Image via Wikipedia

What are the top three trends you see in 2011?

  1. Performance:  I might be cheating here.   I was very bullish about predicting much progress for 2010 in the area of Performance Management in your Decision Management initiatives.  I believe that progress was made but Carlos did not give me full credit for the right prediction…  Okay, I am a little optimistic on timeline…  I admit it…  If it did not fully happen in 2010, can I predict it again in 2011?  I think that companies want to better track their business performance in order to correct the trajectory of course but also to improve their projections.  I see that it is turning into reality already here and there.  I expect it to become a trend in 2011!
  2. Insight: Big Data being available all around us with new technologies and algorithms will continue to propagate in 2011 leading to more widely spread Analytics capabilities.  The buzz at Analytics shows on Social Network Analysis (SNA) is a sign that there is interest in those kinds of things.  There is tremendous information that can be leveraged for smart decision-making.  I think there will be more of that in 2011 as initiatives launches in 2010 will mature into material results.
    5 Ways to Cultivate an Active Social Network
    Image by Intersection Consulting via Flickr
  3. Collaboration:  Social Media for the Enterprise is a discipline in the making.  Social Media was initially seen for the most part as a Marketing channel.  Over the years, companies have started experimenting with external communities and ideation capabilities with moderate success.  The few strategic initiatives started in 2010 by “old fashion” companies seem to be an indication that we are past the early adopters.  This discipline may very well materialize in 2011 as a core capability, well, or at least a new trend.  I believe that capabilities such Chatter, offered by Salesforce, will transform (slowly) how people interact in the workplace and leverage the volumes of social data captured in LinkedIn and other Social Media sites.  Collaboration is of course a topic of interest for me personally.  I even signed up for Kare Anderson’s collaboration collaboration site – yes, twice the word “collaboration”: it is really about collaborating on collaboration techniques.  Even though collaboration does not require Social Media, this medium offers perspectives not available until now.

Brief Bio-

Carole-Ann is a renowned guru in the Decision Management space. She created the vision for Decision Management that is widely adopted now in the industry. Her claim to fame is the strategy and direction of Blaze Advisor, the then-leading BRMS product, while she also managed all the Decision Management tools at FICO (business rules, predictive analytics and optimization). She has a vision for Decision Management both as a technology and a discipline that can revolutionize the way corporations do business, and will never get tired of painting that vision for her audience. She speaks often at Industry conferences and has conducted university classes in France and Washington DC.

Leveraging her Masters degree in Applied Mathematics / Computer Science from a “Grande Ecole” in France, she started her career building advanced systems using all kinds of technologies — expert systems, rules, optimization, dashboarding and cubes, web search, and beta version of database replication – as well as conducting strategic consulting gigs around change management.

She now tweets as @CMatignon, blogs at blog.sparklinglogic.com and interacts at community.sparklinglogic.com.

She started her career building advanced systems using all kinds of technologies — expert systems, rules, optimization, dashboarding and cubes, web search, and beta version of database replication.  At Cleversys (acquired by Kurt Salmon & Associates), she also conducted strategic consulting gigs mostly around change management.

While playing with advanced software components, she found a passion for technology and joined ILOG (acquired by IBM).  She developed a growing interest in Optimization as well as Business Rules.  At ILOG, she coined the term BRMS while brainstorming with her Sales counterpart.  She led the Presales organization for Telecom in the Americas up until 2000 when she joined Blaze Software (acquired by Brokat Technologies, HNC Software and finally FICO).

Her 360-degree experience allowed her to gain appreciation for all aspects of a software company, giving her a unique perspective on the business.  Her technical background kept her very much in touch with technology as she advanced.

She also became addicted to Twitter in the process.  She is active on all kinds of social media, always looking for new digital experience!

Outside of work, Carole-Ann loves spending time with her two boys.  They grow fruits in their Northern California home and cook all together in the French tradition.

profile on LinkedIn

TwitterFollow me on Twitter

Filtering to Gain Social Network Value
Image by Intersection Consulting via Flickr
Social Networks Hype Cycle
Image by fredcavazza via Flickr

Checks in the mail more effective checks to your pay

Paycheck (film)
Image via Wikipedia

NBER (whose excellent monthly newsletter I subscribe to- among others) http://www.nber.org/ in a recent paper claims that cheque in mails (one time) sare better spent than monthly pay increases.

I wonder what this conclusion can be used for in designing annual bonuses versus higher pay in private sector compensation- but people do seem happier receiving a bigger one time boost than 12 small mini boosts.

 

http://papers.nber.org/papers/w16246

Check in the Mail or More in the Paycheck: Does the Effectiveness of Fiscal Stimulus Depend on How It Is Delivered?

use a mirror
Use a mirror
download in pdf format
(176 K)

email paper

Claudia R. Sahm, Matthew D. Shapiro, Joel Slemrod

NBER Working Paper No. 16246
Issued in July 2010
NBER Program(s):   EFG ME PE

An NBER digest for this paper is available.

Recent fiscal policies have aimed to stimulate household spending. In 2008, most households received one-time economic stimulus payments. In 2009, most working households received the Making Work Pay tax credit in the form of reduced withholding; other households, mainly retirees, received one-time payments. This paper quantifies the spending response to these different policies and examines whether the spending response differed according to whether the stimulus was delivered as a one-time payment or as a flow of payments in the form of reduced withholding. Based on responses from a representative sample of households in the Thomson Reuters/University of Michigan Surveys of Consumers, the paper finds that the reduction in withholding led to a substantially lower rate of spending than the one-time payments. Specifically, 25 percent of households reported that the one-time economic stimulus payment in 2008 led them to mostly increase their spending while only 13 percent reported that the extra pay from the lower withholding in 2009 led them to mostly increase their spending. The paper uses several approaches to isolate the effect of the delivery mechanism from the changing aggregate and individual conditions. Responses to a hypothetical stimulus in 2009, examination of “free responses” concerning differing responses to the policies, and regression analysis controlling for individual economic conditions and demographics all support the primary importance of the income delivery mechanism in determining the spending response to the policies.

This paper is available as PDF (176 K) or via email.

Machine-readable bibliographic record – MARC, RIS, BibTeX

2011 Forecast-ying

Free twitter badge
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I had recently asked some friends from my Twitter lists for their take on 2011, atleast 3 of them responded back with the answer, 1 said they were still on it, and 1 claimed a recent office event.

Anyways- I take note of the view of forecasting from

http://www.uiah.fi/projekti/metodi/190.htm

The most primitive method of forecasting is guessing. The result may be rated acceptable if the person making the guess is an expert in the matter.

Ajay- people will forecast in end 2010 and 2011. many of them will get forecasts wrong, some very wrong, but by Dec 2011 most of them would be writing forecasts on 2012. almost no one will get called on by irate users-readers- (hey you got 4 out of 7 wrong last years forecast!) just wont happen. people thrive on hope. so does marketing. in 2011- and before

and some forecasts from Tom Davenport’s The International Institute for Analytics (IIA) at

http://iianalytics.com/2010/12/2011-predictions-for-the-analytics-industry/

Regulatory and privacy constraints will continue to hamper growth of marketing analytics.

(I wonder how privacy and analytics can co exist in peace forever- one view is that model building can use anonymized data suppose your IP address was anonymized using a standard secret Coco-Cola formula- then whatever model does get built would not be of concern to you individually as your privacy is protected by the anonymization formula)

Anyway- back to the question I asked-

What are the top 5 events in your industry (events as in things that occured not conferences) and what are the top 3 trends in 2011.

I define my industry as being online technology writing- research (with a heavy skew on stat computing)

My top 5 events for 2010 were-

1) Consolidation- Big 5 software providers in BI and Analytics bought more, sued more, and consolidated more.  The valuations rose. and rose. leading to even more smaller players entering. Thus consolidation proved an oxy moron as total number of influential AND disruptive players grew.

 

2) Cloudy Computing- Computing shifted from the desktop but to the mobile and more to the tablet than to the cloud. Ipad front end with Amazon Ec2 backend- yup it happened.

3) Open Source grew louder- yes it got more clients. and more revenue. did it get more market share. depends on if you define market share by revenues or by users.

Both Open Source and Closed Source had a good year- the pie grew faster and bigger so no one minded as long their slices grew bigger.

4) We didnt see that coming –

Technology continued to surprise with events (thats what we love! the surprises)

Revolution Analytics broke through R’s Big Data Barrier, Tableau Software created a big Buzz,  Wikileaks and Chinese FireWalls gave technology an entire new dimension (though not universally popular one).

people fought wars on emails and servers and social media- unfortunately the ones fighting real wars in 2009 continued to fight them in 2010 too

5) Money-

SAP,SAS,IBM,Oracle,Google,Microsoft made more money than ever before. Only Facebook got a movie named on itself. Venture Capitalists pumped in money in promising startups- really as if in a hurry to park money before tax cuts expired in some countries.

 

2011 Top Three Forecasts

1) Surprises- Expect to get surprised atleast 10 % of the time in business events. As internet grows the communication cycle shortens, the hype cycle amplifies buzz-

more unstructured data  is created (esp for marketing analytics) leading to enhanced volatility

2) Growth- Yes we predict technology will grow faster than the automobile industry. Game changers may happen in the form of Chrome OS- really its Linux guys-and customer adaptability to new USER INTERFACES. Design will matter much more in technology on your phone, on your desktop and on your internet. Packaging sells.

False Top Trend 3) I will write a book on business analytics in 2011. yes it is true and I am working with A publisher. No it is not really going to be a top 3 event for anyone except me,publisher and lucky guys who read it.

3) Creating technology and technically enabling creativity will converge at an accelerated rate. use of widgets, guis, snippets, ide will ensure creative left brains can code easier. and right brains can design faster and better due to a global supply chain of techie and artsy professionals.

 

 

SAS Lawsuit against WPS- Application Dismissed

I saw Phil Rack http://twitter.com/#!/PhilRack (whom I have interviewed before at https://decisionstats.com/2009/02/03/interview-phil-rack/ ) and whom I dont talk to since Obama won the election-

 

 

 

 

 

 

 

well Phil -creator of Bridge to R- first SAS language to R language interface- mentioned this judgment and link.

 

Probably Phil should revise the documentation of Bridge to R- lest he is sued himself!!!

Conclusion
It was for these reasons that I decided to dismiss SAS’s application.

From-

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2010/3012.html

 

Neutral Citation Number: [2010] EWHC 3012 (Ch)
Case No: HC09C03293

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
22 November 2010

B e f o r e :

THE HON MR JUSTICE ARNOLD
____________________
Between:
SAS INSTITUTE INC. Claimant
– and –

WORLD PROGRAMMING LIMITED Defendant

____________________

Michael Hicks (instructed by Bristows) for the Claimant
Martin Howe QC and Isabel Jamal (instructed by Speechly Bircham LLP) for the Defendant
Hearing date: 18 November 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

MR. JUSTICE ARNOLD :

Introduction
By order dated 28 July 2010 I referred certain questions concerning the interpretation of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, which was recently codified as European Parliament and Council Directive 2009/24/EC of 23 April 2009, and European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union. The background to the reference is set out in full in my judgment dated 23 July 2010 [2010] EWHC 1829 (Ch). The reference is presently pending before the Court of Justice as Case C-406/10. By an application notice issued on 11 October 2010 SAS applied for the wording of the questions to be amended in a number of respects. I heard that application on 18 November 2010 and refused it for reasons to be given later. This judgment contains those reasons.

The questions and the proposed amendments
I set out below the questions referred with the amendments proposed by SAS shown by strikethrough and underlining:

“A. On the interpretation of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs and of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 (codified version):
1. Where a computer program (‘the First Program’) is protected by copyright as a literary work, is Article 1(2) to be interpreted as meaning that it is not an infringement of the copyright in the First Program for a competitor of the rightholder without access to the source code of the First Program, either directly or via a process such as decompilation of the object code, to create another program (‘the Second Program’) which replicates by copying the functions of the First Program?
2. Is the answer to question 1 affected by any of the following factors:
(a) the nature and/or extent of the functionality of the First Program;
(b) the nature and/or extent of the skill, judgment and labour which has been expended by the author of the First Program in devising and/or selecting the functionality of the First Program;
(c) the level of detail to which the functionality of the First Program has been reproduced in the Second Program;
(d) if, the Second Program includes the following matters as a result of copying directly or indirectly from the First Program:
(i) the selection of statistical operations which have been implemented in the First Program;
(ii) the selection of mathematical formulae defining the statistical operations which the First Program carries out;
(iii) the particular commands or combinations of commands by which those statistical operations may be invoked;
(iv) the options which the author of the First Program has provided in respect of various commands;
(v) the keywords and syntax recognised by the First Program;
(vi) the defaults which the author of the First Program has chosen to implement in the event that a particular command or option is not specified by the user;
(vii) the number of iterations which the First Program will perform in certain circumstances;
(e)(d) if the source code for the Second Program reproduces by copying aspects of the source code of the First Program to an extent which goes beyond that which was strictly necessary in order to produce the same functionality as the First Program?
3. Where the First Program interprets and executes application programs written by users of the First Program in a programming language devised by the author of the First Program which comprises keywords devised or selected by the author of the First Program and a syntax devised by the author of the First Program, is Article 1(2) to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to interpret and execute such application programs using the same keywords and the same syntax?
4. Where the First Program reads from and writes to data files in a particular format devised by the author of the First Program, is Article 1(2) to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to read from and write to data files in the same format?
5. Does it make any difference to the answer to questions 1, 2, 3 and 4 if the author of the Second Program created the Second Program without access to the source code of the First Program, either directly or via decompilation of the object code by:
(a) observing, studying and testing the functioning of the First Program; or
(b) reading a manual created and published by the author of the First Program which describes the functions of the First Program (“the Manual”) and by implementing in the Second Program the functions described in the Manual; or
(c) both (a) and (b)?
6. Where a person has the right to use a copy of the First Program under a licence, is Article 5(3) to be interpreteding as meaning that the licensee is entitled, without the authorisation of the rightholder, to perform acts of loading, running and storing the program in order to observe, test or study the functioning of the First Program so as to determine the ideas and principles which underlie any element of the program, if the licence permits the licensee to perform acts of loading, running and storing the First Program when using it for the particular purpose permitted by the licence, but the acts done in order to observe, study or test the First Program extend outside the scope of the purpose permitted by the licence and are therefore acts for which the licensee has no right to use the copy of the First Program under the licence?
7. Is Article 5(3) to be interpreted as meaning that acts of observing, testing or studying of the functioning of the First Program are to be regarded as being done in order to determine the ideas or principles which underlie any element of the First Program where they are done:
(a) to ascertain the way in which the First Program functions, in particular details which are not described in the Manual, for the purpose of writing the Second Program in the manner referred to in question 1 above;
(b) to ascertain how the First Program interprets and executes statements written in the programming language which it interprets and executes (see question 3 above);
(c) to ascertain the formats of data files which are written to or read by the First Program (see question 4 above);
(d) to compare the performance of the Second Program with the First Program for the purpose of investigating reasons why their performances differ and to improve the performance of the Second Program;
(e) to conduct parallel tests of the First Program and the Second Program in order to compare their outputs in the course of developing the Second Program, in particular by running the same test scripts through both the First Program and the Second Program;
(f) to ascertain the output of the log file generated by the First Program in order to produce a log file which is identical or similar in appearance;
(g) to cause the First Program to output data (in fact, data correlating zip codes to States of the USA) for the purpose of ascertaining whether or not it corresponds with official databases of such data, and if it does not so correspond, to program the Second Program so that it will respond in the same way as the First Program to the same input data.
B. On the interpretation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society:
8. Where the Manual is protected by copyright as a literary work, is Article 2(a) to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in the Second Program any or all of the following matters described in the Manual:
(a) the selection of statistical operations which have been described in the Manual as being implemented in the First Program;
(b) the mathematical formulae used in the Manual to describe those statistical operations;
(c) the particular commands or combinations of commands by which those statistical operations may be invoked;
(d) the options which the author of the First Program has provided in respect of various commands;
(e) the keywords and syntax recognised by the First Program;
(f) the defaults which the author of the First Program has chosen to implement in the event that a particular command or option is not specified by the user;
(g) the number of iterations which the First Program will perform in certain circumstances?
9. Is Article 2(a) to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in a manual describing the Second Program the keywords and syntax recognised by the First Program?”

Jurisdiction
It was common ground between counsel that, although there is no direct authority on the point, it appears that the Court of Justice would accept an amendment to questions which had previously been referred by the referring court. The Court of Justice has stated that “national courts have the widest discretion in referring matters”: see Case 166/73 Rheinmühlen Düsseldorf v Einfuhr-und Vorratstelle für Getreide under Futtermittel [1974] ECR 33 at [4]. If an appeal court substitutes questions for those referred by a lower court, the substituted questions will be answered: Case 65/77 Razanatsimba [1977] ECR 2229. Sometimes the Court of Justice itself invites the referring court to clarify its questions, as occurred in Interflora Inc v Marks & Spencer plc (No 2) [2010] EWHC 925 (Ch). In these circumstances, there does not appear to be any reason to think that, if the referring court itself had good reason to amend its questions, the Court of Justice would disregard the amendment.

Counsel for WPL submitted, however, that, as a matter of domestic procedural law, this Court had no jurisdiction to vary an order for reference once sealed unless either there had been a material change of circumstances since the order (as in Interflora) or it had subsequently emerged that the Court had made the order on a false basis. He submitted that neither of those conditions was satisfied here. In those circumstances, the only remedy of a litigant in the position of SAS was to seek to appeal to the Court of Appeal.

As counsel for WPL pointed out, CPR rule 3.1(7) confers on courts what appears to be a general power to vary or revoke their own orders. The proper exercise of that power was considered by the Court of Appeal in Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945 and Roult v North West Strategic Health Authority [2009] EWCA Civ 444, [2010] 1 WLR 487.

In Collier Dyson LJ (as he then was) giving the judgment of the Court of Appeal said:

“39. We now turn to the third argument. CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen [2003] EWHC 1740 (Ch). He said at paragraph 7:
‘The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant’s first main submission, that Mr Berry’s order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition.’
We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).”
In Roult Hughes LJ, with whom Smith and Carnwath LJJ agreed, said at [15]:

“There is scant authority upon Rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. Neuberger J said as much in Customs & Excise v Anchor Foods (No 3) [1999] EWHC 834 (Ch). So did Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch). His general approach was approved by this court, in the context of case management decisions, in Collier v Williams [2006] EWCA Civ 20. I agree that in its terms the rule is not expressly confined to procedural orders. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. I am however in no doubt that CPR 3.1(7) cannot bear the weight which Mr Grime’s argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision…..”
In the present case there has been no material change of circumstances since I made the Order dated 28 July 2010. Nor did counsel for SAS suggest that I had made the Order upon a false basis. Counsel for SAS did submit, however, that the Court of Appeal had left open the possibility that it might be proper to exercise the power conferred by rule 3.1(7) even if there had no been material change of circumstances and it was not suggested that the order in question had been made on a false basis. Furthermore, he relied upon paragraph 1.1 of the Practice Direction to CPR Part 68, which provides that “responsibility for settling the terms of the reference lies with the English court and not with the parties”. He suggested that this meant that orders for references were not subject to the usual constraints on orders made purely inter partes.

In my judgment PD68 paragraph 1.1 does not justify exercising the power conferred by rule 3.1(7) in circumstances falling outside those identified in Collier and Roult. I am therefore very doubtful that it would be a proper exercise of the power conferred on me by CPR r. 3.1(7) to vary the Order dated 28 July 2010 in the present circumstances. I prefer, however, not to rest my decision on that ground.

Discretion
Counsel for WPL also submitted that, even if this Court had jurisdiction to amend the questions, I should exercise my discretion by refusing to do so for two reasons. First, because the application was made too late. Secondly, because there was no sufficient justification for the amendments anyway. I shall consider these points separately.

Delay
The relevant dates are as follows. The judgment was handed down on 23 July 2010, a draft having been made available to the parties a few days before that. There was a hearing to consider the form of the order, and in particular the wording of the questions to be referred, on 28 July 2010. Prior to that hearing both parties submitted drafts of the questions, and the respective drafts were discussed at the hearing. Following the hearing I settled the Order, and in particular the questions. The Order was sealed on 2 August 2010. The sealed Order was received by the parties between 3 and 5 August 2010. At around the same time the Senior Master of the Queen’s Bench Division transmitted the Order to the Court of Justice. On 15 September 2010 the Registry of the Court of Justice notified the parties, Member States and EU institutions of the reference. On 1 October 2010 the United Kingdom Intellectual Property Office advertised the reference on its website and invited comments by interested parties by 7 October 2010. The latest date on which written observations on the questions referred may be filed at the Court of Justice is 8 December 2010 (two months from the date of the notification plus 10 days extension on account of distance where applicable). This period is not extendable in any circumstances.

As noted above, the application was not issued until 11 October 2010. No justification has been provided by SAS for the delay in making the application. The only explanation offered by counsel for SAS was that the idea of proposing the amendments had only occurred to those representing SAS when starting work on SAS’s written observations.

Furthermore, the application notice requested that the matter be dealt with without a hearing. In my view that was not appropriate: the application was plainly one which was likely to require at least a short hearing. Furthermore, the practical consequence of proceeding in that way was to delay the hearing of the application. The paper application was put before me on 22 October 2010. On the same day I directed that the matter be listed for hearing. In the result it was not listed for hearing until 18 November 2010. If SAS had applied for the matter to be heard urgently, I am sure that it could have been dealt with sooner.

As counsel for WPL submitted, it is likely that the parties, Member States and institutions who intend to file written observations are now at an advanced stage of preparing those observations. Indeed, it is likely that preparations would have been well advanced even on 11 October 2010. To amend the questions at this stage in the manner proposed by SAS would effectively require the Court of Justice to re-start the written procedure all over again. The amended questions would have to be translated into all the EU official languages; the parties, Member States and EU institutions would have to be notified of the amended questions; and the time for submitting written observations would have to be re-set. This would have two consequences. First, a certain amount of time, effort and money on the part of those preparing written observations would be wasted. Secondly, the progress of the case would be delayed. Those are consequences that could have been avoided if SAS had moved promptly after receiving the sealed Order.

In these circumstances, it would not in my judgment be proper to exercise any discretion I may have in favour of amending the questions.

No sufficient justification
Counsel for WPL submitted that in any event SAS’s proposed amendments were not necessary in order to enable the Court of Justice to provide guidance on the issues in this case, and therefore there was no sufficient justification for making the amendments.

Before addressing that submission directly, I think it is worth commenting more generally on the formulation of questions. As is common ground, and reflected in paragraph 1.1 of PD68, it is well established that the questions posed on a reference under Article 267 are the referring court’s questions, not the parties’. The purpose of the procedure is for the Court of Justice to provide the referring court with the guidance it needs in order to deal with the issues before it. It follows that it is for the referring court to decide how to formulate the questions.

In my view it is usually helpful for the court to have the benefit of the parties’ comments on the wording of the proposed questions, as envisaged in paragraph 1.1 of PD68. There are two main reasons for this. The first is to try to ensure that the questions are sufficiently comprehensive to enable all the issues arising to be addressed by the Court of Justice, and thus avoid the need for a further reference at a later stage of the proceedings, as occurred in the Boehringer Ingelheim v Swingward litigation. In that case Laddie J referred questions to the Court of Justice, which were answered in Case C-143/00 [2002] ECR I-3759. The Court of Appeal subsequently concluded, with regret, that the answers to those questions did not suffice to enable it to deal with the case, and referred further questions to the Court of Justice: [2004] EWCA Civ 575, [2004] ETMR 65. Those questions were answered in Case C-348/04 [2007] ECR I-3391. The second main reason is to try to ensure that the questions are clear and free from avoidable ambiguity or obscurity.

In my experience it is not uncommon for parties addressing the court on the formulation of the questions to attempt to ensure that the questions are worded in a leading manner, that is to say, in a way which suggests the desired answer. In my view that is neither proper nor profitable. It is not proper because the questions should so far as possible be impartially worded. It is not profitable because experience shows that the Court of Justice is usually not concerned with the precise wording of the questions referred, but with their legal substance. Thus the Court of Justice frequently reformulates the question in giving its answer.

As counsel for WPL pointed out, and as I have already mentioned, in the present case the parties provided me with draft questions which were discussed at a hearing. In settling the questions I took into account the parties’ drafts and their comments on each other’s drafts, but the final wording is, for better or worse, my own.

As counsel for WPL submitted, at least to some extent SAS’s proposed amendments to the questions appear designed to bring the wording closer to that originally proposed by SAS. This is particularly true of the proposed amendment to question 1. In my judgment it would not be a proper exercise of any discretion that I may have to permit such an amendment, both because it appears to be an attempt by SAS to have the question worded in a manner which it believes favours its case and because its proper remedy if it objected to my not adopting the wording it proposed was to seek to appeal to the Court of Appeal. In saying this, I do not overlook the fact that SAS proposes to move some of the words excised from question 1 to question 5.

In any event, I am not satisfied that any of the amendments are necessary either to enable the parties to present their respective arguments to the Court of Justice or to enable the Court to give guidance on any of the issues arising in this case. On the contrary, I consider that the existing questions are sufficient for these purposes. By way of illustration, I will take the biggest single amendment, which is the proposed insertion of new paragraph (d) in question 2. In my view, the matters referred to in paragraph (d) are matters that are encompassed within paragraphs (b) and/or (c); or at least can be addressed by the parties, and hence the Court of Justice, in the context provided by paragraphs (b) and/or (c). When I put this to counsel for SAS during the course of argument, he accepted it.

Other amendments counsel for SAS himself presented as merely being minor matters of clarification. In my view none of them amount to the elimination of what would otherwise be ambiguities or obscurities in the questions.

It is fair to say that SAS have identified a small typographical error in question 2 (“interpreting” should read “interpreted”), but in my view this is an obvious error which will not cause any difficulty in the proceedings before the Court of Justice.

Conclusion
It was for these reasons that I decided to dismiss SAS’s application