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Article II § 1 cl 1-8 define the legal machinery by which some offices of the general government’s executive branch are filled and maintained. There is nothing inherently in conflict with the global covenant about these clauses, so long as they are strictly construed.
Article II § 2 cl 1 delineates some of the most important powers of the president. There is nothing inherently in conflict with the global covenant about this clause, assuming that it is strictly construed. From the perspective of the global covenant, there is nothing inherently wrong with the original intent of the framers in their construction of this clause. — But the way that the executive powers have been implemented over the years is an altogether different issue. So much of American history revolves around the executive’s abuse of power that it would turn this brief, cursory examination of the Constitution into screeds of historical data to even attempt to account for all this misfeasance. So we’ll only attempt to account for a few of the most prominent presidential escapades.
For the sake of honoring the compact theory of government – because it is nothing more than the attempt to describe how to build governments based on consent – he would have allowed the States to secede. By allowing them to secede, he would have avoided the damage to the Constitution that inevitably accompanies every onslaught of national consolidation. 14 The South was violating the consent rule by perpetuating slavery. If Lincoln failed to honor the compact theory, then like the South, he would also be violating the consent rule.
For the sake of honoring the property rights of every human being, he would have pushed hard to get the 13th, 14th, and 15th Amendments passed. Once slavery was illegal, the remaining united States would have had the moral high ground for pursuing a war of liberation against the "Confederacy".
If he had the resources and the wisdom to abide by the global covenant, Lincoln would have persuaded Congress to declare war against the seceded slave States. He would have made it clear in the declaration of war that his military forces would treat every slave owner as a criminal. He would have made sure that the property of every slave owner was confiscated and redistributed to the ex-slaves. He would have turned these foreign States into territories of the united States, and made clear declarations to these States that they would not be allowed to reenter the Union until all the former slaves and their progeny were educated as well as the former slave owners and their progeny. The South may have become a foreign, conquered people, but that was preferable to trashing the Constitution.
Even though these three points mark the legally and morally correct way to eliminate slavery at the time of secession, the North, in fact, was generally more interested in economic expansion than in doing what was legally and morally correct.
The national consolidation has continued ever since, and the only thing that keeps the united States from turning into a full-blown police state is the supreme Court’s glossy application of the Bill of Rights.
The presidential power to appoint diplomats, supreme Court judges, and "inferior Officers" by way of a "two thirds" concurrence of the Senate is not inherently unreasonable. BUT: (i)These days, the entire State Department, including "Ambassadors", "Ministers and Consuls", appears to be following a globalization agenda that is inherently at odds with the global covenant. (ii)The supreme Court appears to promote the national consolidation process at every possible opportunity. (iii)The population of "inferior Officers" appears to increase like maggots on a carcass. — If either the president or the Senate had the inclination, they could stop or at least curtail these phenomena. But they don’t. Instead they argue vehemently over the nature of supreme Court appointments. They in essence put on a show of caring about whether the new justice will crack the national consolidation egg at the narrow end or at the broad end. These Lilliputians thereby prove that they have no intention of suppressing the globalization and national consolidation processes. But all this is mere political fireworks displayed by the two political branches. In contrast to such political frenetics about supreme Court appointments, and such complacency about appointing diplomats and "inferior Officers", treaties are often passed almost totally unnoticed, even while they have huge legal implications by way of Article VI cl 2 and Article I § 8 cl 10. 34 Treaties therefore go far beyond politics in their impact on the everyday lives of the citizens of the fifty States.
This should give the reader a taste of the powers in international law that the President has by default. They are huge, and if citizens within the fifty States are not protected against them, the rights of such citizens will almost inevitably be trampled. Since the Constitution was ratified, such protections have been systematically eroded by judicial decisions like this one: "Congress is constitutionally empowered to enact whatever legislation is necessary and proper for carrying into execution the treaty making power of the United States" (Stutz v. Bureau of Narcotics, 56 F.Supp. 810, 813 – N.D.Cal. 1944). By way of Article II § 2 cl 2, the President has extraordinary powers to make practically any kind of treaty he wants, especially if Congress doesn’t care enough to stop him. After the treaty is ratified, the Congress can create statutes to promulgate the treaty into the geographical jurisdictions of the States. Because the Constitution limits crimes that Congress can make penal, these incursions into State sovereignty must fall within one or more of these limited penalty areas. The Constitution’s penal offenses are "treason, via Art. 1, §6, cl. 1; counterfeiting, via Art. 1, §8, cl. 6; and piracy, felonies on the high seas and offenses against the laws of nations, via Art. 1, §8, cl. 10". 39 Obviously, all violations of treaties fall into the purview of "Offenses against the Law of Nations". It’s reasonable that the general government might be able to exercise municipal police powers at points of entry into the country by way of treaties. But to exercise such police powers within the interior of any given State violates the territorial restrictions that the Constitution placed on the general government. 40 This is an exercise of international law within the States, and such international law "utilizes admiralty procedures in federal court". 41 Such international law gives the general government not only unlawful power over the States, but also provides rationales to invade other countries in the names of such treaties. — In the process of national consolidation, Congress has often passed laws that were found unconstitutional by the federal courts. Then a treaty is ratified, and an almost identical law is passed to enforce the treaty, and the judicial branch treats the new law as having passed its inspection. 42 Often, the Congress appears to act as a rubberstamp for bureaucrats at the State Department who are always trying to enhance their status by creating new treaties. The President generally appears equally as oblivious to what the bureaucrats are doing, and equally as willing to rubber stamp anything they want.
For more about big trouble with treaties, see the Supremacy Clause. 43 Also see Becraft’s Brief on Treaties. 44 — Whenever unalienable Rights of people living within the States are violated by such international law, these people have a valid argument that the treaty is null and void as it applies to them, because the president and Senate ratified the treaty under false pretenses, namely, that such officials had authority that they did not have. So such treaties were ratified under color of law. There are certainly exceptions (i)if the given human being has explicitly consented to be contractually bound by the terms of the treaty, or (ii)if the treaty explicitly and undeniably operates within the scope of the global mandate against bloodshed.
Article II § 2 cl 3 gives the president power to make appointments to fill offices of the general government’s executive branch on a temporary basis. There is nothing inherently in conflict with the global covenant about this clause, so long as it is strictly construed.
We don’t see anything about this section that’s obviously in conflict with the global covenant. But given the many problems indicated above, the phrase, "he shall take Care that the Laws be faithfully executed", begs an explanation for why no President has done anything to correct these many problems. For those of us who love law that is ordained by God, there are obvious and serious doubts about whether the President is doing his job, and taking "Care that the Laws be faithfully executed". We inevitably wonder if the general government and all the State governments have abandoned law, in favor of arbitrary, fiat, and inherently despotic government.
Given that nonfeasance is not listed here, there appears to be no way to rid ourselves of executive branch officers who refuse to do their job, except through the electoral process. Given that this is the case, and given that the electoral process is the captured entity that it is, we have little choice but to conduct our lives in accordance with the global covenant regardless of whether the general government does likewise or not.
1The Oxford Companion to the Supreme Court of the United States, p. 580, "Native Americans", by Rennard J. Strickland.
2Principles of Confederacy, pp. 50-51. — Graham’s endnote #37 indicates that he gets his information from the following sources: 5 Elliot’s Debates 198-205 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=005/lled005.db&recNum=219&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28ed0051%29%29%230050001&linkText=1); Tansill’s Documents 215-225; 1 Ferrand’s Records 282-293 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=001/llfr001.db&recNum=311&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28fr0012%29%29%230010003&linkText=1) (Madison’s Notes, June 18, 1787); 1 Elliot’s Debates 417-423 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=001/lled001.db&recNum=432&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28ed0011%29%29%230010001&linkText=1); Tansill’s Documents 776-783; 1 Ferrand’s Records 294-301 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=001/llfr001.db&recNum=323&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28fr0012%29%29%230010003&linkText=1+) (Yates’ Minutes, June 18, 1787). — Hamilton’s "Plan for National Government" can also be found at The Anti-Federalist Papers and The Constitutional Convention Debates, pp. 70-79.
3After the Constitution was signed on September 17, 1787, Hamilton may have become more sympathetic to the concept of a confederate republic – evidenced by his contributions to the Federalist Papers (e.g., Federalist #9). But his inclinations towards national consolidation still remained stronger than that of most of his fellow framers. This is a kindly viewing of Hamilton. A view that is less sympathetic, and possibly more realistic, holds that he flip-flopped on two important issues for the sake of self-advancement: (i)At the constitutional convention, he spoke in favor of a national consolidation similar to the English monarchy. But in the Federalist Papers, he spoke instead of a confederate republic. His motives for doing so had to be in part because the national consolidation was held in such low esteem by such a majority of the delegates at the convention. This doesn’t mean that he dropped his vision of national consolidation. It merely means that he resolved to find a way to circumvent the majority opinion. (ii)At the constitutional convention, Hamilton, "a former aide to Robert Morris, founder of the Bank of North America", had been a staunch supporter of a sound currency (The Creature from Jekyll Island, p. 328). This is evidenced by the fact that at the convention, he said, "‘To emit an unfunded paper as the sign of value ought not to continue a formal part of the Constitution, nor ever hereafter to be employed; being, in its nature, repugnant with abuses and liable to be made the engine of imposition and fraud.’" (The Creature from Jekyll Island, p. 316. — Griffin is quoting "Alexander Hamilton, Works, Part II, p. 271, as cited by" George Bancroft, "A Plea for the Constitution. New York: Harpers, 1886; rpt. Sewanee, Tennessee: Spencer Judd Publishers, 1982", p. 26). But as the first Secretary of the Treasury, Hamilton formed the nation’s second central bank, which was modeled after the Bank of England, which practiced fractional-reserve banking. "It is possible that Hamilton, Morris, and other Federalist leaders had hoped to keep the government out of the money-making business . . . because that would leave the field clear for a central-bank mechanism which . . . could become their own private engine of profit." (The Creature from Jekyll Island, p. 328). — Hamilton’s motives may have been self-serving throughout.
4Principles of Confederacy, p. 50.
53 Elliot’s Debates 30 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=003/lled003.db&recNum=41&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28ed0031%29%29%230030001&linkText=1) (Virginia Convention, June 4, 1788). — Mason’s statement appears at Principles of Confederacy, p. 50.
6Marx and Engels may have created this expression, but it has been largely realized in the UNITED STATES.
7"[Clinton] Rossiter regarded only Abraham Lincoln, Woodrow Wilson, and Franklin Roosevelt as ‘constitutional dictators,’ presidents who acted on their own discretion during crises for which the laws did not provide adequate authority." — Rossiter’s Constitutional Dictatorship is cited by – and this quote is taken from – The Oxford Companion to the Supreme Court of the United States, p. 665, "Presidential Emergency Powers", by Donald L. Robinson.
8The idea that taxes can only be collected for a very limited set of purposes is an absolutely essential part of any concept of government that’s based on consent.
9Carson’s Basic History of the United States, Vol. 3, pp. 39-41.
10Carson’s Basic History of the United States, Vol. 3, pp. 39-41. — It’s important to understand that slave States were not the only States that believed they had rights of nullification and secession. In fact, before the War Between the States, there were several cases of nullification, and several threats of secession, by non-slave States: (1)"New England Federalists often ignored the authority of the national government" (The Oxford Companion to the Supreme Court of the United States, p. 601, "Nullification", by Richard E. Ellis.). (2)"In 1854 the Wisconsin Supreme Court declared the 1850 [Fugitive Slave Act] unconstitutional and released the abolitionist Sherman Booth from federal custody." (The Oxford Companion to the Supreme Court of the United States, p. 436, "Interposition", by Paul Finkelman.) (3)"New Englanders threatened secession after the Louisiana Purchase (1803) and again during the War of 1812 and blocked federal action during the Mexican War (1846-1848). Illinois, Ohio, and Wisconsin thwarted federal laws on several occasions." (The Oxford Companion to the Supreme Court of the United States, p. 862, "Tenth Amendment", by Forrest McDonald..).
11It’s essential for us to acknowledge in passing that even though Andrew Jackson refused to recognize the rights of nullification and secession, he nevertheless was fervently against the kind of central bank that Hamilton built, a bank built with fractional money, i.e., money created through fractional-reserve banking. So he was probably not as much in favor of national consolidation as Hamilton was. — For a more thorough treatment of Jackson’s confrontation with central banking, see The Creature from Jekyll Island, pp. 341-360, Chapter 17, "A Den of Vipers".
13Early in the Constitutional Convention of 1787, there was a proposal to give power to Congress to send federal troops against any State that Congress deemed out of compliance with Congressional wishes. "The proposal was quickly denounced as dangerous, and left to lie on the table, never to be brought up again." — This information can be found in the following: 1 Elliot’s Debates 144, 153 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=001/lled001.db&recNum=159&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28ed0011%29%29%230010001&linkText=1); 1 Ferrand’s Records 16, 47 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=001/llfr001.db&recNum=43&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28fr0012%29%29%230010003&linkText=1) (Journal, May 29 and 31, 1787); 5 Elliot’s Debates 127-128, 139-140 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=005/lled005.db&recNum=148&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28ed0051%29%29%230050001&linkText=1); Tansill’s Documents 117, 130; 1 Ferrand’s Records 21, 54 (URL: http://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=001/llfr001.db&recNum=48&itemLink=r%3Fammem%2Fhlaw%3A@field%28DOCID%2B@lit%28fr0012%29%29%230010003&linkText=1) (Madison’s Notes, May 29 and 31, 1787). It is cited at Principles of Confederacy, p. 41.
14When George Washington finished his second term as President, he made the following statement in his farewell address: "if in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly over-balance in permanent evil any transient or partial benefit which the use can at any time yield." — Quoted at Carson’s Basic History of the United States, Vol. 5, p. 232.
15Excerpt from Lincoln's second inaugural address. See Yale’s Avalon Project, URL: http://avalon.law.yale.edu/19th_century/lincoln2.asp.
16Carson’s Basic History of the United States, Vol. 3, pp. 192-193.
17See Article I § 9 cl 2, URL: ./0_2_2_Art_I_Sec_9.htm#TexasVWhite.
18Carson’s Basic History of the United States, Vol. 3, pp. 192-193.
19Carson’s Basic History of the United States, Vol. 3, pp. 193-194.
20See Article 1 § 8 cl 18, URL: ./0_2_1_5_Art_I_Sec_8_Cl_6-18.htm#Article1Sec8Cl18.
21"The view that the Constitution is equal to any emergency is set forth in The Federalist, nos. 23 and 28, among others." — The Oxford Companion to the Supreme Court of the United States, p. 665, "Presidential Emergency Powers", by Donald L. Robinson.
22See The Oxford Companion to the Supreme Court of the United States, p. 665, "Presidential Emergency Powers", by Donald L. Robinson; and Rossiter’s Constitutional Dictatorship.
23In addition to these things, he also introduced fiat money and another national banking system. For more about this, see The Creature from Jekyll Island, pp. 369-395.
24This information can be verified at The Oxford Companion to the Supreme Court of the United States, p. 665, "Presidential Emergency Powers", by Donald L. Robinson.
25This information can be verified at The Oxford Companion to the Supreme Court of the United States, p. 665, "Presidential Emergency Powers", by Donald L. Robinson.
26But then on the other hand, to keep things in perspective, we have to say that it’s too bad the framers legalized slavery in the first place. But then we have to say it’s too bad the British practiced the slave trade in the first place. There’s no end to this regress. At some point we claim it’s too bad that Adam and Eve ate the forbidden fruit. What we’re talking about every time we say "it’s too bad", is utopia, i.e., no place.
27See The Creature from Jekyll Island, pp. 451-504, Chapter 22, "The Creature Swallows Congress", and Chapter 23, "The Great Duck Dinner", for how presidents Wilson and Roosevelt fouled up the banking and monetary systems.
28The Oxford Companion to the Supreme Court of the United States, pp. 665-666, "Presidential Emergency Powers", by Donald L. Robinson.
29The Oxford Companion to the Supreme Court of the United States, pp. 665-666, "Presidential Emergency Powers", by Donald L. Robinson.
30Chief Justice Charles Evans Hughes, in Home Building and Loan Association v. Blaisdell (1934) (p. 425). — It’s interesting that in the same opinion in which Hughes was inveighing against "national emergency", he was succumbing to the pressure of the presumed "national emergency" by clobbering the Contracts Clause, URL: ./0_2_3_Art_I_Sec_10.htm#Blaisdell. — For more about this, see (i)The Oxford Companion to the Supreme Court of the United States, pp. 665-666, "Presidential Emergency Powers", by Donald L. Robinson; and (ii)The Oxford Companion to the Supreme Court of the United States, pp. 410-411, "Home Building and Loan v. Blaisdell", by John W. Johnson.
31Thereby in effect giving the president carte blanche to do practically anything he wanted.
32The Oxford Companion to the Supreme Court of the United States, pp. 665-666, "Presidential Emergency Powers", by Donald L. Robinson.
33The Oxford Companion to the Supreme Court of the United States, pp. 665-666, "Presidential Emergency Powers", by Donald L. Robinson.
34Article VI cl 2, URL: ./0_5_Art_IV-VII.htm#Article6Cl2, and Article I § 8 cl 10, URL: ./0_2_1_5_Art_I_Sec_8_Cl_6-18.htm#Article1Sec8Cl10.
35Blackstone’s Commentaries, Book 1 Chapter 7, "Of the King’s Prerogatives". — See Blackstone at LONANG, URL: http://www.lonang.com/exlibris/blackstone/.
36Blackstone’s Commentaries, Book 1 Chapter 7, "Of the King’s Prerogatives". — See Blackstone at LONANG, URL: http://www.lonang.com/exlibris/blackstone/.
37Blackstone’s Commentaries, Book 1 Chapter 7, "Of the King’s Prerogatives". — See Blackstone at LONANG, URL: http://www.lonang.com/exlibris/blackstone/.
38Blackstone’s Commentaries, Book 1 Chapter 7, "Of the King’s Prerogatives". — See Blackstone at LONANG, URL: http://www.lonang.com/exlibris/blackstone/.
39Becraft’s "Treaties: A Source for Federal Municipal Power", endnote #2, URL: http://home.hiwaay.net/%7Ebecraft/TREATIES.html.
40See Article I § 8 cl 17, URL: ./0_2_1_5_Art_I_Sec_8_Cl_6-18.htm#Article1Sec8Cl17, and Article IV § 3 cl 2, URL: ./0_5_Art_IV-VII.htm#Art4Sec3cl2.
41Becraft’s "Treaties: A Source for Federal Municipal Power", endnote #2, URL: http://home.hiwaay.net/%7Ebecraft/TREATIES.html.
42For an example of how this works, see Article VI cl 2, URL: ./0_5_Art_IV-VII.htm#Article6Cl2.

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G.R. No. 169534 - Brigido B. Paredes v. The Hon Court of Appeals, et al.
BRIGIDO B. PAREDES, Petitioner, v. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, and BERNARDINO TELOREN, Respondents.
For resolution is a Petition for Certiorari under Rule 45 of the Rules of Court filed by petitioner Brigido B. Paredes, seeking the reversal of the Decision1 dated 15 October 2004 and Resolution2 dated 20 July 2005 of the Court of Appeals in CA-G.R. SP No. 71928, which dismissed the Petition for Certiorari filed by petitioner and denied reconsideration thereon. The Court of Appeals affirmed the Orders dated 10 April 20023 and 11 June 20024 in Criminal Cases Nos. 99-525 to 99-531 of the Regional Trial Court (RTC), Branch 52 of Talibon, Bohol, denying petitioner's Motion to Dismiss.
Petitioner is the Municipal Treasurer of Ubay, Bohol. Private respondent Bernardino Teloren is a businessman engaged in the business of selling construction materials under the trade name Lava Marketing and Construction Supply. He regularly transacted business with the Municipality of Ubay, Bohol.
The checks appeared to have been encashed by private respondent as borne by his signatures appearing at the back thereof. However, private respondent refuted the genuineness of his signatures, disclaimed his encashment of the checks, and alleged that the Municipality of Ubay has yet to pay him. Instead, he averred that his signatures on the checks were forged by petitioner who as Municipal Treasurer had custody of the same.
Hence, on 21 August 1997, a criminal as well as an administrative complaint6 was filed against petitioner before the Office of the Ombudsman (Visayas), docketed as OMB-VIS-CRIM-97-0697 and OMB-VIS-ADM-97-0536, respectively. It was alleged that the checks which were issued to private respondent as payment by the Municipality of Ubay were never received by him. Rather, they were encashed by petitioner through falsification, to the former's damage and detriment.
In his Answer,7 petitioner denied the allegations, and by way of an affirmative defense, alleged that the subject checks were already in the hands of private respondent as shown by the disbursement vouchers which covered the issuances of the checks. According to petitioner, such documents bear private respondent's signatures evincing his acknowledgment and acceptance of the payments corresponding to each of the subject checks.
Subsequently, the Office of the Ombudsman (Visayas) through Graft Investigation Officer I Alvin Butch E. CaÃ±ares filed seven separate informations9 for Estafa through Falsification of a Commercial Document (under Article 31510 of the Revised Penal Code in relation to Article 17111 of the same Code) against petitioner with the RTC, where they were docketed as Crim. Cases Nos. 99-525 to 99-531.
Hence, petitioner filed before the Court of Appeals a Petition for Review, under Rule 43 of the Rules of Court, to assail the Ombudsman's ruling in OMB-VIS-ADM-97-0536. This was docketed as CA-G.R. SP No. 59124.
Subsequently, on 5 November 2001, petitioner filed with the RTC a Motion to Dismiss22 Criminal Cases Nos. 99-525 to 99-531. He grounded his Motion on the dismissal by the Court of Appeals of OMB-VIS-ADM-97-0536, the administrative case filed against him. He averred that if private respondent failed to adduce substantial evidence to hold him administratively liable, with greater reason will private respondent and the prosecution fail to prove beyond reasonable doubt his guilt in the criminal cases. Under the circumstances, petitioner claimed that the prosecution cannot therefore approximate the quantum of evidence needed to convict him in Criminal Cases Nos. 99-525 to 99-531.
The Ombudsman Prosecutor, invoking the Supreme Court rulings in Tan v. Comelec, 237 SCRA 353 and in Paredes, Jr. v. Sandiganbayan, 252 SCRA 641, argued that the investigation then being conducted by the Office of the Ombudsman (Visayas) on the criminal case for Malversation thru Falsification of Public Documents, on the one hand, and its administrative adjudication [of] the administrative charge for Dishonesty were entirely independent proceedings; the results in one could not conclude the other and therefore the dismissal of the administrative case does not necessarily foreclose the matter of possible liability, if warranted, of the accused in the criminal case.
Petitioner thereafter sought recourse before the Court of Appeals via a Petition for Certiorari, under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 71928, to annul the 10 April 2002 and the 11 June 2002 Orders of the RTC in Criminal Cases Nos. 99-525 to 99-531.
Petitioner moved for the reconsideration of the Decision, but it was denied for lack of merit by the appellate court in a Resolution dated 20 July 2005.
Hence, the present Petition where petitioner imputes grave abuse of discretion on the part of the Court of Appeals in issuing the questioned Decision of 15 October 2004 and the Resolution of 20 July 2005 in CA-G.R. SP No. 71928.
Petitioner rehashes before this Court the argument that he buttressed before the court a quo and the appellate court.
The kernel of his contention is that the continuation of the criminal proceedings against him in Criminal Cases Nos. 99-525 to 99-531 is an exercise in futility; hence, these cases must be dismissed. He argues that as his liability in the administrative case against him was not established by substantial evidence, so will his criminal case necessarily fall, demanding as it does, a heavier quantum of proof, i.e., proof beyond reasonable doubt.
Clearly, the instant Petition must fail.
Verily, the fact that the required quantum of proof33 was not adduced to hold petitioner administratively liable for falsification, forgery, malversation, grave dishonesty, and conduct unbecoming of a public officer in OMB-VIS-ADM-97-0536 does not ipso facto mean that Criminal Cases Nos. 99-525 to 99-531 filed against petitioner for Estafa through Falsification of a Commercial Document before the RTC should be dismissed. The failure to adduce substantial evidence against petitioner in the former is not a ground for the dismissal of the latter. These two cases are separate and distinct; hence, independent from each other.
Sec. 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.
Thus, considering the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings and conclusions in one should not necessarily be binding on the other.36 Notably, the evidence presented in the administrative case may not necessarily be the same evidence to be presented in the criminal cases. The prosecution is certainly not precluded from adducing additional evidence to discharge the burden of proof required in the criminal cases. Significantly, the prosecution had manifested that it would present testimonial evidence which was not presented in the administrative case.
As it is, the dismissal of the administrative case against petitioner cannot be implored as basis for the dismissal of the criminal complaints filed against him.
As we have held in Tan v. Comelec, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the penalty and all its effects.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided in article 344 of this Code.
Evidently, the right of the prosecution to present evidence as it finds necessary and relevant to prove petitioner's guilt beyond reasonable doubt in Criminal Cases Nos. 99-525 to 99-531 must be respected. The aforesaid cases must be allowed to proceed notwithstanding the dismissal of the administrative case filed against the petitioner in OMB-VIS-ADM-97-0536.
WHEREFORE, the Petition is DENIED. The Regional Trial Court, Branch 52 of Talibon, Bohol, is ORDERED to proceed with dispatch in resolving Criminal Cases Nos. 99-525 to 99-531. Costs against petitioner.
* No part. Associate Justice Antonio Eduardo B. Nachura was Solicitor General when respondent People of the Philippines filed its Manifestation and Motion to Adopt Comment as Memorandum before this Court.
1 Penned by former Associate Justice Elvi John S. Asuncion with Associate Justices Isaias P. Dican and Ramon M. Bato, Jr., concurring; rollo, pp. 207-211.
2 Penned by Associate Justice Ramon M. Bato, Jr. with Associate Justices Isaias P. Dican and Vicente L. Yap, concurring; id. at 226.
3 Penned by Presiding Judge Irma Zita V. Masamayor; id. at 143-144.
8 Rollo, pp. 62-65; penned by Graft Investigation Officer I Alvin Butch E. CaÃ±ares with the recommending approval of Graft Investigation Officer III Virginia Palanca-Santiago and Deputy Ombudsman for the Visayas Arturo C. Mojica.
10 Article 315 of the Revised Penal Code punishes the act of swindling or estafa.
8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.
The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons.
15 Penned by Associate Justice Rodrigo V. Cosico with Associate Justices Eubolo G. Verzola and Eliezer R. delos Santos, concurring; id. at 71-77.
21 Id. at 106; 298.
29 People v. Judge Toledano, 387 Phil. 957, 964 (2000).
30 Tan v. Commission on Elections, G.R. No. 112093, 4 October 1994, 237 SCRA 353, 359, citing Office of the Court Administrator v. Enriquez, A.M. No. P-89-290, 29 January 1993, 218 SCRA 1, 10.
31 Paredes, Jr. v. Sandiganbayan, 322 Phil. 709, 730 (1996).
Administrative cases are, as a rule, independent from criminal proceedings. The dismissal of a criminal case on the ground of insufficiency of evidence or the acquittal of an accused who is also a respondent in an administrative case does not necessarily foreclose the administrative proceeding nor carry with it relief from administrative liability. This is because unlike in criminal cases which require proof beyond reasonable doubt, the quantum of proof required in administrative proceedings is substantial evidence, defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
34 Carlos v. Civil Service Commission, G.R. No. 105293, 7 December 1993, 228 SCRA 262, 266.
35 Lumiqued v. Exevea, 346 Phil. 807, 829 (1997); Office of the Court Administrator v. Sumilang, 338 Phil. 28, 38 (1997); Mariano v. Roxas, 434 Phil. 742, 749 (2002).
36 De la Cruz v. Department of Education, Culture and Sports-Cordillera Administrative Region, 464 Phil. 1033, 1050 (2004), citing Ocampo v. Office of the Ombudsman, G.R. No. 114683, 18 January 2000, 322 SCRA 17, 22.
37 Paredes, Jr. v. Sandiganbayan, supra note 31.
39 Falsification by public officer, employee, notary or ecclesiastic minister.
In Larin v. Executive Secretary [G.R. NO. 112745, 16 October 1997, 280 SCRA 713, 728], we held that where the very basis of the administrative case against petitioner is his conviction in the criminal action which was later on set aside by this Court upon a clear and categorical finding that the acts for which he was administratively held liable are not unlawful and irregular, the acquittal of the petitioner in the criminal case necessarily entails the dismissal of the administrative action against him, because in such a case, there is no more basis nor justifiable reason to maintain the administrative suit.
43 Hipolito v. Mergas, A.M. No. P-90-412, 11 March 1991, 195 SCRA 6, 10; Office of the Court Administrator v. Anquilo, Jr., Adm. Matter No. P-92-701, 8 November 1993, 227 SCRA 492, 495.
44 De la Cruz v. Department of Education, Culture and Sports-Cordillera Administrative Region, Supra note 36 at 1049.

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Paul Shapiro was a dentist in New York who appeared to have a successful practice, performing some 275 procedures a month. As most dentists, cognizant that if they can no longer perform chair dentistry they will lose most, if not all, of their income, or at the very best be required to hire a dentist who must be paid to perform the chair work, Dr. Shapiro purchased several disability policies so that if he became disabled from performing his own occupation, he would be protected.
Dr. Shapiro assumed that if he became disabled, the policies would kick in and he and his family would be protected. When Dr. Shapiro began to suffer from progressive skeletal illnesses, including osteoarthritis and spondylosis of the elbow, neck and other joints, so that he was unable to perform chair dentistry, he filed a claim for total disability benefits with the insurance carrier.
At that point, the insurance carrier, which had willfully accepted and deposited Dr. Shapiro's substantial premiums for many years, took the position that since Dr. Shapiro's occupation was, in large part, administering his dental practice in addition to performing chair dentistry, he was therefore not totally disabled because he could still perform his duties as office administrator.
The lower court found for Dr. Shapiro without putting him through a trial, and the Federal appellate court likewise affirmed for Dr. Shapiro that in New York the law is clear that where administrative work is incidental to the material and substantial duties as a full-time dentist, the fact that he was still able to perform administrative work did not prevent him from collecting on his disability policy if he was unable to perform chair dentistry.
The Federal appellate court also made it clear that where a dentist, such as Dr. Shapiro, had purchased a policy to protect him against not being able to work in his own occupation, and proved that he was not able to work in his own occupation, he did not need to prove loss of income. In fact, in a case involving an orthopedist, the court found that even if the orthopedist was able to earn more money in a different occupation, he could still be entitled to recover for a disability from his own occupation.
The Shapiro case seems quite clear on its face, that he was entitled to his disability benefits for which he had paid very substantial premiums. Yet the insurance company required him to hire an attorney, go through a lengthy discovery process, and spend years in court before finally paying him. Unfortunately under New York Law, as opposed to laws in other states, there is no provision for a disabled professional, who successfully brings a claim, to recover his attorneys' fee. This means the insurance company does not pay for the dentist having to hire a lawyer and even if the dentists wins the case, he will be out at least a legal fee or a contingency legal fee.
The largest insurance carrier for professionals such as dentists, doctors, and lawyers, is Unum Provident, which has acquired other large disability carriers such as Paul Revere. Unum Provident trades on the New York Stock Exchange and is said to be the largest issuer of disability insurance in the United States.
According to recent publications, Unum Provident's claim practices are the subject of a major investigation by the insurance departments of some forty-five states. Unum Provident has now agreed to change the manner in which it interprets its policies to avoid payment, pursuant to a consent decree in Georgia. In the Georgia case, Unum was also required to pay a fee of $250,000 for its improper claim practices.
For other successful cases involving dentists and disability claims see, Hofer v. Unum and Fields v. Mutual Benefit Life Insurance.
In other states, such as California and Florida, which permit punitive damages, juries have awarded substantial punitive damages against Unum Provident. In the case of Chapman v. Unum, the jury awarded $30 Million where an ophthalmological surgeon was disabled from performing surgery because he had hand tremors and Unum Provident refused to pay his benefits.
In Hangarter v. Provident Life and Unum, where a chiropractor, who was totally disabled, was denied benefits, the jury awarded him $5 Million in punitive damages.
In McGregor v. Paul Revere (a Unum Provident subsidiary), a court reporter who was unable to use a steno-type machine was denied benefits by Unum on the grounds that she was still able to proofread what other people typed and therefore she was not disabled from being a court reporter. The jury awarded her punitive damages and she was also found to be entitled to recover legal fees under California law. For another successful case involving a disabled court reporter, see, Mastroianni v. Unum.
A dentist who purchases a policy must make certain that the policy is not an accident policy but instead an Aown [email protected] disability policy which kicks in and provides coverage if the dentist is disabled for any reason whatsoever.
In Michigan, a dentist who was disabled with carpal tunnel syndrome was found not to be entitled to disability benefits under an accident policy because the disability had not arisen out of a sudden accidental event but rather had gradually developed over time. See, Nehra v. Provident Life and Accident Co.
It is therefore critical to know exactly what type of policy is being purchased.
It is also critical that the dentist make certain that the policy he is buying is an individual policy, if he is able to obtain one, rather than as part of the benefits he gets from his job if he works for a corporation. If he obtains a policy through the job, it is basically found to be governed by ERISA, which is the Employees Retirement Income Security Act, a federal law which has been turned on its head.
ERISA was originally enacted to protect employees from having their pension funds dissipated or their benefits diminished. Instead, the courts have now interpreted ERISA to mean that the case must be heard in Federal Court without a jury, and that punitive damages and consequential damages are not permitted as a matter of law.
Try to obtain a policy that protects you from being disabled from your own occupation rather than simply a general disability policy because the insurance company will always find some job that you are allegedly able to do and may refuse payment.
If you have obtained your own occupation policy and become disabled, make a claim as soon as reasonably possible, stating in simple terms why you believe you can no longer perform some or all of the duties of your own occupation.
Document medically the reason that you are unable to perform the duties of your own occupation.
Attempt to find a physician to document your claim who will not be afraid to come to court to testify on your behalf if the insurance carrier refuses to make payment.
Offer the insurance company a physical examination or examinations, and make yourself available to be examined by the insurance company doctor(s) so that if they refuse to take advantage of that opportunity, that may be an indication that the insurance carrier is acting in bad faith.
Provide the insurance carrier with whatever documentation they reasonably request to support your claim.
Most policies permit the insurance carrier to obtain copies of all your medical records; provide them with authorizations to do so. The failure to provide them with such authorizations will delay your claim.
Keep a careful record and make copies of whatever documents you send to the insurance carrier so that you are not later met with the excuse Awe never got [email protected] In one actual case, the Hartford Insurance Company's representative denied a claim for long-term disability claiming that certain documents were not in Hartford's file. When it turned out that the documents were in Hartford's short-term disability files, the witness stated under oath that those files were on a different floor and she was not obligated to go search for records on a different floor!
Send your documents to the insurance carrier by certified mail, return receipt requested or some other manner, such as Federal Express, which provides proof that a delivery has been made. One insurance carrier recently denied receiving three certified letters for which the writer had receipts and the matter was turned over to the United States Postal Inspectors.
Give the insurance carrier a reasonable time to settle with you. Most policies require that the insurance carrier be given a reasonable time to review materials after they have received them.
When making a claim to the insurance carrier, try to provide a report from a recognized expert in your field, explaining why you cannot perform the duties ordinarily required in your profession.
Never lie or misrepresent to the insurance carrier since this will be used as an excuse not to pay you benefits and if you go to court, it will affect your credibility before the judge and/or the jury.
Make certain that the amount of disability insurance is consistent with your needs and income since the carrier will accept your premiums but will have a limit on what they will pay if your income is far less than the amount set forth on your application.
Choose a reputable disability carrier and check with your state insurance department as to the amount of claims made against it which have been upheld; this should give you an indication as to whether the company is seeking to protect its insureds or not.
Pray that you will never need to make a claim because you have unfortunately become disabled!
If you or a loved one have a disability insurance claim and are in need of legal assistance, call Jaroslawicz & Jaros at 212-227-2780, or toll free in New York 1-800-269-2780, or submit an online questionnaire. The initial consultation is free of charge, and if we agree to handle your case, we will work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. Please call to ensure that you do not waive your right to compensation. Or you can email us at [email protected].
 The facts are taken from the reported decision in the United States Court of Appeals for the Second Circuit which covers New York, Vermont and Connecticut, entitled, Shapiro v. Berkshire Life Insurance Company, 212 F.3d 212 (2d Cir. 2000). All legal cases can be obtained through the Internet or from the author upon request.
 See, Godesky v. First Unum Life Insurance, 239 A.D.2d 547, 658 N.Y.S.2d 970 (2d Dept. 1997).
 See, Order of John W. Oxendine, Commissioner of Insurance for the State of Georgia, dated March 19, 2003; In the Matter of UnumLife Insurance Co., et al.

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Complainant is Budge Industries, LLC of Lansdale, Pennsylvania, United States of America, represented by the law firm Mendelsohn, Drucker& Associates P.C., United States of America.
Respondent is Joe Carrero of Brooklyn, New York, United States of America represented by Crawford & Bringslid Attorneys at Law P.C., United States of America.
The disputed domain names <budgecarcover.com> and <budgecarcovers.com> are registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2010. On March 15, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain names. On March 16, 2010, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 7, 2010, and the Response was filed with the Center on that date.
The Center appointed Richard G. Lyon as the sole panelist in this matter on April 14, 2010. The Panel finds that it was properly constituted and has jurisdiction over this administrative proceeding. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On April 16, 2010, the Panel issued Procedural Order No. 1, discussed below.
Complainant manufactures and sells a proprietary line of automotive vehicle covers. It holds a trademark registered on the principal register of the United States Patent and Trademark Office (USPTO) for BUDGE in international classes 9 and 12, for automotive accessory items. This mark was registered in 1993 based upon a claimed first use in commerce of 1953.
The disputed domain names currently resolve to a page containing hyperlinks to companies selling tire covers, truck covers, and other automotive related products. According to screen shots submitted with the Response, in 2008 Respondent maintained an active website at which he sold Complainant's products. The Panel was unable to verify any prior content of the website maintained at the disputed domain name because an inquiry through the Wayback Machine at <archive.org> was returned with the notation “We are sorry, access to [disputed domain name] has been blocked by the site owner via robots.txt.” The screen shots indicate that Respondent's website included a disclaimer that read “CarCover USA is not to be confused with the manufacturer of Budge Car Covers and bridge truck covers Budge Industries.” Though in the final paragraph that otherwise contains small print on a four-page site, this disclaimer is in a larger type font and underscored, rendering it somewhat prominent.
The parties communicated by electronic mail some point; the earliest communication submitted with the initial pleadings is dated February 25, 2010. These communications address a number of subjects, among them Respondent's website at the disputed domain names, Complainant's supplying products to Respondent for resale, and transfer of the disputed domain names from the Respondent to Complainant. At one point Respondent proposed a transfer of the disputed domain names to Complainant for a USD 20,000 payment. Attached to communications in April 2010 are various drafts of a proposed document, entitled “Settlement Agreement,” that address these and other subjects. In each of these drafts one of the provisions requires that Respondent transfer the disputed domain names to Complainant. In an email to Respondent's counsel Complainant's counsel refers to this transfer as “not negotiable” and a requirement of the deal.
It will become apparent that each party's contentions depend on disputed factual issues.
Complainant holds rights in BUDGE by reason of its USPTO-registered marks. The disputed domain names incorporate that mark as their dominant feature, and the addition of Complainant's principal product exacerbates the likelihood of confusion with the marks.
The placeholder or parking page at the disputed domain names is described by the Complainant as “non use,” and as such brings Respondent's conduct within the “warehousing” doctrine of the Telstra case.2 This use and Respondent's offer to sell the disputed domain names to Complainant for USD 20,000 US are classic examples of bad faith under the Policy.
Complainant has not shown ownership of any registered trademark, and has provided no support for its contention that adding “Car Cover” does not serve to distinguish the disputed domain names from Complainant's mark. That phrase was incorporated to reflect the name of Respondent's company, CarCoverUSA, Inc.
Respondent has a right and legitimate interest in the disputed domain names by reason of his use of them for legitimate business from 2008 through early 2010. He only took down the site content at Complainant's request made in connection with the discussions between the parties. Respondent initially registered the disputed domain names with the oral permission from Complainant's president given prior to registration. Respondent has always used a disclaimer of affiliation with Complainant.
The same facts, particularly Complainant's knowledge of Respondent's prior use of the disputed domain names and consent to register them, disprove any notion of registration or use in bad faith. Respondent made a number of changes to the disputed domain names, including disconnecting a forward to Complainant's website, at Complainant's request, further countering any showing of bad faith. Respondent's prior legitimate use makes the Telstra doctrine inapplicable. Respondent's offer to sell the disputed domain name came in response to Complainants request, as part of the negotiations between the parties earlier this year. The current placeholder page with hyperlinks resulted from Respondent's acceding to Complainant's request to discontinue web content; following that action software employed by the registrar automatically generated the links.
Respondent accuses Complainant of bad faith in commencing this proceeding, with knowledge of Respondent's prior use of the disputed domain names and consent to register them. Respondent contends that Complainant staged the negotiations to obtain deactivation of the disputed domain names and to provide a pretext for commencing this proceeding.
Complainant has demonstrated rights in its BUDGE marks, and “Budge” is the dominant feature of both the disputed domain names. The addition of Complainant's principal products to the disputed domain names makes consumer confusion even more likely than a simple copying. Paragraph 4(a)(i) of the Policy has been satisfied.
Resolution of the remaining other two Policy elements in this case is complicated considerably by each party's failure to provide evidence to support factual contentions upon which it bases its contentions. “The Policy requires the Complainant to prove each of the three [Policy] elements,” Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755 (emphasis in original); Kabushiki Kaisha ASTY and Kabushiki Kaisha F.D.C. PRODUCTS v. LiHai, WIPO Case No. D2003-0963; see Rules, paragraphs 3(b)(xv) and 4(b)(ix).
Respondent's contention that he gained a right or legitimate interest by subsequently incorporating a company named CarCoverUSA, Inc. misses the point. The issue is rather Respondent's right or legitimate interest in using a term that relates to Complainant's mark as the dominant feature of the disputed domain names.
Respondent has alleged that Complainant expressly consented to Respondent's registration and use of the disputed domain name. Such consent would likely provide a defense, as a registration with the mark owner's permission can rarely be in bad faith. See, e.g., Greyson International, Inc. v. William Loncar, WIPO Case No. D2003-0805. If as Respondent alleges Complainant knew of Respondent's earlier use of the disputed domain name to sell Complainant's products as a reseller, Complainant's case would probably fail for not establishing registration or use in bad faith, and because Respondent would fall within the safe harbor of paragraph 4(c)(i) of the Policy. SAP AG v. SAP User List, WIPO Case No. D2009-1285; Authorize.Net LLC v. Cardservice High Sierra, WIPO Case No. D2008-0760.
The Complainant makes no mention of any communication or dealings between the parties until a few months prior to the filing of the Complaint. Respondent pleads earlier dealings, but includes no evidence of them in the Response. The first email message between the parties included with the Response corresponds to those included with the Complaint, from early 2010.
For this reason the Panel issued Procedural Order No. 1, requesting each party separately to identify the initial communication between Complainant (or one of its agents) on the one hand and Respondent (or one of its agents) on the other.3 This was done reluctantly, as the Policy and Rules call for prompt resolution of proceedings, normally on the Complaint and Response alone. Here though, where the Order called for a single, discrete document that by itself might provide a basis for resolving the proceeding, a Panel Order appeared to be appropriate. See Randan Corp. v. Rappazzini Winery, WIPO Case No. D2003-0353.
Complainant's president submitted his affidavit stating that to his knowledge the first communication between the parties came at his direction in August 2008. Complainant had received a letter from an automobile manufacturer complaining of an unauthorized display of the manufacturer's trademark in an advertisement on the disputed domain name. Complainant's president directed the company's counsel to write a cease-and-desist letter to Respondent. This letter (a copy of which was annexed to the affidavit) was the first written communication between the parties, and Complainant's first notice of Respondent's use of the disputed domain names.
Complainant's president's affidavit is consistent with the 2010 email negotiations described above, to which both parties refer in their initial pleadings. The draft agreements and correspondence indicate that the negotiations focused on Respondent's becoming a dealer for Complainant, not modification of existing arrangements. For example, the handling of warranty claims is discussed, with Respondent frequently inquiring about how various types of claims would be handled – something a current dealer would be expected to know. Both parties emphasize that transfer of the disputed domain names was an important part of the discussions. There is no mention in the correspondence of any earlier consent to resell Complainant's products or consent to use Complainant's marks. The only reference in the case file to either is the unsworn statement of Respondent's counsel in the Response.
So far as evidence (as opposed to allegations) is concerned all Respondent has shown is use of the disputed domain name to sell Complainant's products. There is no evidence that Respondent bought products from Complainant, and more importantly no evidence of permission to resell them or to use Complainant's mark. While an authorized reseller may under certain circumstances use its supplier's mark in a domain name under certain circumstances without consent,4 an unauthorized reseller has a much more difficult task of demonstrating a right or legitimate interest in a domain name incorporating the supplier's mark. A disclaimer of affiliation, standing alone, is insufficient.
Unsupported factual allegations, even if not denied, are of no moment, and unsworn “statements of counsel as to factual matters easily verifiable with documentary evidence or of which counsel has no personal knowledge are not evidence and carry little or no weight in a Policy proceeding.” Align Technology, Inc v. Web Reg/ Rarenames/ Aligntechnology.Com, WIPO Case No. D2008-0103). Consent, if it existed, was a matter within Respondent's control, yet he submitted no evidence (not even an “information and belief” statement in an affidavit) to support this critical element of his case. Respondent has not overcome Complainant's prima facie showing of no authorization, and Complainant has carried its burden of proof under paragraph 4(a)(ii) of the Policy.
For similar reasons Complainant has proven bad faith in registration and use. Respondent sold Complainant's branded products and thus can hardly deny awareness of both Complainant and its mark at any time. Respondent's use of the disputed domain names for (so far as the record indicates) unauthorized resale of Complainant's products is an “intentional attempt to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location.” Policy, paragraph 4(b)(iv).
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <budgecarcover.com> and <budgecarcovers.com> be transferred to the Complainant.
1 Respondent notes that one of the disputed domain names automatically diverts Internet users to the other, so the Panel's analysis applies equally to both.
2 Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. See also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 3.2 (“The lack of active use of the domain name does not as such prevent a finding of bad faith.”).
3 The operative portion of the Order requested “each party to furnish to the WIPO Arbitration and Mediation Center (the ‘Center') the first direct communication of any nature between Complainant, on the one hand, and Respondent, on the other. If the communication was written and not dated, the party shall indicate its date by sworn statement or affirmation under penalty of perjury made by a person with personal knowledge of the communication. If the communication was oral, the party shall indicate by sworn statement or affirmation under penalty of perjury made by a person with personal knowledge of the communication setting forth (a) the date of the communication, (b) the nature of the communication (e.g., face-to-face meeting, telephone conversation), (c) the name of each person who participated for each party, and (d) a brief summary of the communication.
Each party shall submit the requested material to the Center, without commentary or argument, by electronic mail no later than 5 pm Geneva time, on Thursday, April 22, 2010, and simultaneously to the other party as required by the Rules, but shall not transmit a copy directly to the Panel. Neither party shall make any further submission to the Center without the Panel's further express order.
4 WIPO Overview, paragraph 2; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903. One of those circumstances is that the domain name be used for the supplier's products exclusively, a condition Respondent in this case cannot meet.


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The O157:H7 clone of Escherichia coli, which causes major, often prolonged outbreaks of gastroenteritis with hemolytic-uremic syndrome (HUS) such as those in Japan, Scotland, and the United States recently, is thought to be resident normally in cattle or other domestic animals. This clone is of major significance for public health and the food industry. We have developed a fast method for sequencing a given O antigen gene cluster and applied it to O157. The O157 O antigen gene cluster is 14 kb in length, comprising 12 genes and a remnant H-repeat unit. Based on sequence similarity, we have identified all the necessary O antigen genes, including five sugar biosynthetic pathway genes, four transferase genes, the O unit flippase gene, and the O antigen polymerase gene. By PCR testing against all 166 E. coli O serogroups and a range of gram-negative bacterial strains, including some that cross-react serologically with E. coli O157 antisera, we have found that certain O antigen genes are highly specific to O157 E. coli. This work provides the basis for a sensitive test for rapid detection of O157 E. coli. This is important both for decisions on patient care, since early treatment may reduce the risk of life-threatening complications, and for detection of sources of contamination. The method for fast sequencing of O antigen gene clusters plus an ability to predict which genes will be O antigen specific will enable PCR tests to be developed as needed for other clones of E. coli or, once flanking genes are identified, clones of any gram-negative bacterium.
Escherichia coli is a clonal species, with clones normally being identified by their combination of O and H (and sometimes K) antigens. Some O antigens, such as O157, are characteristically found in pathogenic clones, with the O157:H7 clone being particularly significant in human disease, since it has caused approximately two-thirds of all recent cases of hemolytic-uremic syndrome in North America and Europe (32). All enterohemorrhagic E. coli strains produce Shiga toxins (Stx), but Stx-producing E. coli strains possessing O antigen 157 are the most frequently isolated from humans and are the predominant cause of hemolytic-uremic syndrome (32). Because of the very low infective dose of this organism (14), bacteria entering the human food chain can still pose a health problem after undergoing enormous dilution. For example, in January 1993 there was an outbreak due to contamination by O157:H7 E. coli at a large meat-processing plant making more than 1 million hamburger patties per day. The affected hamburgers were sold through one retail chain in four states, and 477 people became ill, of whom 3 died (3, 7). The scale of the plant and its operation was such that there would have been great dilution of the contaminated meat, and the highest count of O157:H7 found in hamburger patties of the same production date was 15 organisms per g, although obviously the hamburgers which caused the infection were not tested.
The O antigen, which contains many repeats of an oligosaccharide unit (O unit), is part of the lipopolysaccharide present in the outer membrane of gram-negative bacteria. It contributes major antigenic variability to the cell surface, and on the basis of this variationE. coli has been divided into 166 O serogroups. The surface O antigen is subject to intense selection by the host immune system, which may account for the maintenance of many different O antigen forms within species such as E. coli. Characteristically, all genes specific to O antigen synthesis are clustered (27). Several O antigen gene clusters have been cloned and sequenced, and some have been studied further. However, it is time-consuming to clone an O antigen gene cluster, which is normally longer than 10 kb. We have used the JUMPstart sequence, which is a 39-bp element present upstream of many polysaccharide gene clusters (12), and the gnd sequence, which is present downstream of O antigen gene clusters of E. coli,Salmonella enterica, and related species (4, 29), to amplify the O157 O antigen gene cluster by doing long PCR. The PCR product was then subjected to random cleavage and the fragments were cloned before sequencing. By using this method, a given O antigen gene cluster can be sequenced within a few weeks.
The O157 O antigen containsN-acetyl-d-perosamine, l-fucose,d-glucose, and N-acetyl-d-galactose. Analysis of the O157 sequence revealed four genes of the GDP-l-fucose pathway (manB, manC,gmd, and fcl), the per gene of the GDP-perosamine pathway, a gene which probably encodes the acetyltransferase to make GDP–N-acetylperosamine, three presumptive sugar transferase genes for synthesis of the O unit, the O unit flippase gene, and the O antigen polymerase gene. By PCR testing against all 166 known E. coli serogroups, a range of gram-negative bacterial strains, and O157 E. coli strains not related to the strain used for sequencing, we found that the O157 O antigen transferase, flippase, and polymerase genes are O157 specific.
Great efforts have been made to develop a method for timely and accurate detection of the O157:H7 strain (see, e.g., references8, 10, 14, and 22). PCR-based methods are ideal for rapid detection of organisms at low concentrations. PCR detection with probes based on the Stx andeaeA genes and a plasmid has been developed, but each probe gave cross-reaction with other E. coli strains even when only a small number of strains were tested (10).
Bacterial strains.Plasmids were maintained in E. coli K-12 strain JM109. E. coli O157:H7 (isolate C664-1992) was from The International Escherichia and Klebsiella Centre. Standard E. coli O group strains (17) were used (see Table 1). Other strains used are also listed in Table 1, together with the names of the suppliers.
Construction of a random DNase I bank.Oligonucleotides 482 (5′-CACTGCCATACCGACGACGCCGATCTGTTGCTTGG) and 412 (5′-ATTGGTAGCTGTAAGCCAAGGGCGGTAGCGT) were used to PCR amplify the O antigen gene cluster. Long PCR was carried out with the Expand Long Template PCR system from Boehringer. The PCR cycles were as follows: denaturation at 94°C for 10 s, annealing at 64°C for 30 s, and extension at 68°C for 15 min. Two aliquots containing 150 ng of DNA of long-PCR product each were subjected to DNase I digestion with the Novagen DNase shotgun cleavage kit and a modified protocol as follows. Each aliquot was diluted into 45 μl of 0.05 M Tris-HCl (pH 7.5)–0.05 mg of bovine serum albumin per ml–10 mM MnCl2. A 5-μl volume of a 1:3,000 or 1:4,500 dilution of DNase I (2 U/μl) (Novagen no. 69164-1) in the same buffer was added to each tube (one dilution per aliquot), and 10 μl of stop buffer (100 mM EDTA, 30% glycerol, 0.5% orange G, 0.075% xylene [Novagen no. 69165-1]) was added after incubation at 15°C for 5 min. The contents of the two DNase I reaction tubes were then combined and fractionated on a 0.8% LMT agarose gel, and the gel segment with DNA of about 1 kb (about 1.5 ml of agarose gel) was excised. DNA was extracted from the agarose with the Promega Wizard PCR Preps DNA purification system and resuspended in 200 μl of water before being extracted once with phenol and twice with ether and then precipitated. The DNA was resuspended in 17.25 μl of water and subjected to T4 DNA polymerase repair and single dA tailing with the Novagen single dA tailing kit. The reaction product (85 μl containing about 8 ng of DNA) was then extracted with chloroform-isoamyl alcohol (24:1) once and ligated to 3 × 10−3 pmol of pGEM-T (Promega) in a total volume of 100 μl. Ligation was carried out overnight at 4°C, and the ligated DNA was precipitated and resuspended in 20 μl of water before being electroporated into E. coli JM109 and plated out on 5-bromo-4-chloro-3-indolyl-β-d-galactoside (BCIG)-isopropyl-β-d-thiogalactopyr anoside (IPTG) plates to give a bank.
Sequencing and analysis.The DNA template for sequencing was prepared with a 96-well-format plasmid DNA miniprep kit (Advanced Genetic Technologies Corp.) by the procedure developed in the Institute for Genomic Research (TIGR) (34). Sequencing was performed with an Applied Biosystems 377 automated DNA sequencer. Sequence data were assembled and analyzed by using the Australian National Genomic Information Service (ANGIS), which incorporates several sets of programs (28). We used the algorithm described by Eisenberg et al. (9) to identify potential transmembrane segments from the amino acid sequence.
Specificity assay by PCR.Chromosomal DNA was isolated with the Promega Genomic isolation kit and checked by gel electrophoresis. A total of 34 pools were made, with 6 to 12 samples of DNA per pool (Table 1). Chromosomal DNAs from sixE. coli O157 strains, S. enterica serovar Landau, Brucella abortus, and Yersinia enterocolitica O9 were individually added to one pool containing another seven samples to give pools 22 to 30. PCR was carried out in a total volume of 25 μl, and then 10 μl was run on an agarose gel to check for amplified DNA.
Nucleotide sequence accession number.The DNA sequence described here has been deposited in GenBank under accession no.AF061251.
General strategy for sequencing O antigen gene clusters ofE. coli and related species.Oligonucleotides which bind to the 5′ end of the gnd gene and the middle of the JUMPstart sequence were used for successful PCR amplification of O antigen gene clusters from all 10 randomly chosen serotypes of E. coli and S. enterica(unpublished data).
A PCR fragment of about 14 kb was obtained from E. coliO157:H7 isolate C664-1992, subjected to DNase I digestion, and cloned into pGEM-T to make a bank. To limit the effect of PCR errors, products of five individual PCRs were pooled before making the bank. A total of 112 clones were first sequenced from one end, and 16 of the 112 were then sequenced from the other end to obtain 85% double-strand coverage. Gaps and regions of inadequate coverage were then sequenced from specific PCR products amplified from chromosomal DNA. A sequence of 14,002 bases was obtained, which covers the DNA from the end of JUMPstart to the start of gnd.
O157 O antigen genes.Twelve open reading frames were predicted from the sequence (Fig. 1); all have the same transcriptional direction from JUMPstart tognd. The nucleotide and amino acid sequences were used to search available databases for indications of possible function.
O antigen gene cluster of E. coli O157. Both gene names and orf numbers are given.
The structure of the O157 O unit is known (Fig.2) (23), and we expect genes for GDP-l-fucose and GDP-N-acetylperosamine synthesis (Fig.3). orf10 and orf11showed similarity to the many published manC andmanB genes, respectively, with the highest levels of identity at the amino acid level being 64 and 97% to manCof the E. coli O111 O antigen gene cluster (2) and manB of the E. colicolanic acid capsule gene cluster (30), respectively.orf10 and orf11 were named manC andmanB, i.e., genes for synthesis of GDP-mannose. Orf7 showed 89% identity to Gmd encoded by the E. colicolanic acid capsule gene cluster which converts GDP-mannose to GDP-4-keto-6-d-deoxymannose (30), and the gene was named gmd. Orf8 showed 79 and 69% identity to WcaG of the E. coli colanic acid capsule gene cluster and to WbcJ (Orf14.8) of the Y. enterocolitica O8 O antigen gene cluster, respectively (42). Colanic acid and the Y. enterocolitica O8 O antigen both contain fucose, as does the O157 O antigen. Two enzymatic steps are required for GDP-l-fucose synthesis from GDP-4-keto-6-d-deoxymannose, the product of Gmd (11). It has been shown that the human FX protein carries out both reactions to convert GDP-4-keto-6-d-deoxymannose to GDP-l-fucose (33). WcaG is the same size as the human FX protein, and they have 29% amino acid sequence identity. We have recently shown that WcaG can also carry out both reactions (1) and have renamed the gene fcl(l-fucose). We identify orf8 as fclon the basis of homology to fcl of the colanic acid cluster. In support of the one enzyme carrying out both reactions is the observation that there are no genes other than manB,manC, gmd, and fcl with a high level of similarity among the three sequenced bacterial gene clusters encoding fucose-containing structures (E. colicolanic acid, E. coli O157 O antigen, and Y. enterocolitica O8 O antigen [30, 42]). Orf5 is very similar to WbeE (RfbE) of Vibrio cholerae, which is thought to be the perosamine synthetase, which converts GDP-4-keto-6-d-deoxymannose to GDP-perosamine (31). V. cholerae O1 andE. coli O157 O antigens contain perosamine andN-acetylperosamine, respectively. The V. cholerae O1 manC, manB, gmd, andwbeE genes are the only genes of the V. choleraeO1 gene cluster with significant similarity to genes of theE. coli O157 gene cluster, and we believe that our observations both confirm the prediction made for the function ofwbeE of V. cholerae and show that orf5of the O157 gene cluster encodes GDP-perosamine synthetase.orf5 has therefore been named per. orf5 plus about 100 bp of upstream DNA was previously sequenced by Bilge et al. (5). orf12 includes 50 amino acids with high-level similarity to a conserved region of an acetyltransferase family (16), and we believe that it encodes theN-acetyltransferase which converts GDP-perosamine to GDP-N-acetylperosamine. orf12 has been named wbdR, but it could be renamed if the function were confirmed.
Structure of the O157 O antigen (23).
Biosynthetic pathway of GDP-l-fucose and GDP-perosamine with gene names. The pathway begins with fructose-6-phosphate, which is converted tod-mannose-6-phosphate by the phosphomannose isomerase encoded by manA. The manA gene is located outside the O antigen gene cluster (4). The GDP-l-fucose pathway was described by Ginsburg (11), and we have identified all the genes (reference 30 and unpublished data). The GDP-perosamine pathway is that proposed by Stroeher et al. (31), and the genes assigned to each step are based on sequence similarity described in the text.
We can also identify wzx (orf4, O unit flippase) and wzy (orf2, O antigen polymerase) genes. Most O antigens are synthesized with the Wzx-dependent system, in which repeat O units are synthesized on the inner face of cytoplasmic membrane before being transferred across the cytoplasmic membrane by Wzx and polymerized by Wzy (26, 35). orf4 is predicted to encode an integral inner membrane protein with 12 transmembrane segments. Orf4 shows similarity to many Wzx proteins and has the approximate 50-amino-acid segment found near the amino-terminal end of Wzx proteins with a conserved motif (30). The O antigen polymerases thus far identified are integral membrane proteins and have a similar predicted secondary structure (several transmembrane segments with a large periplasmic loop) (21) but little or no sequence similarity. orf2 encodes a protein with eight predicted membrane segments and a large loop on the predicted periplasmic face and fits the criteria to be namedwzy.
The orf1 and orf3 gene products showed characteristics of the WcaA group of transferases: the members of this group have some similarity at the amino-terminal end, and about 35 amino acids at various positions are highly conserved within this region (30). orf1 and orf3 have been named wbdN and wbdO, respectively. The amino acid sequence encoded by orf6 showed the characteristics of another group of transferases (the WcaC group) (30), and in this case the conserved amino acids are located at various positions at the carboxy-terminal end. orf6 has been namedwbdP. From the structure of the O157 O unit (Fig. 2), we expect four transferases, including one to add the first sugar to the carrier lipid undecaprenol phosphate (UndP), but have found only three presumptive transferase genes. Other than wzx andwzy, none of the genes in the cluster encode predicted integral membrane proteins, whereas the two proteins known to initiate O unit synthesis by transfer of a sugar phosphate to UndP, WecA (Rfe) and WbaP (RfbP), have several predicted transmembrane segments (13, 20). We therefore suggest that as proposed on quite good grounds for Y. enterocolitica (42), WecA transfers GalNAc phosphate to UndP to initiate O unit synthesis as well as initiating enterobacterial common-antigen synthesis by transfer of GlcNAc phosphate. We can thus account for all the required steps for synthesis of the O157 O antigen with 11 of the 12 genes of the cluster.orf9 shows high-level similarity (44% identity at amino acid level, same length) to the wcaH gene of theE. coli colanic acid capsule gene cluster. There is no homolog in the Y. enterocolitica O8 O antigen gene cluster, so a role in GDP-fucose synthesis is not indicated (see the discussion of fcl above). The function of this gene, namedwbdQ, is unknown.
The DNA between manB and wbdR has strong sequence similarity to one of the H-repeat units of E. coli K-12 (43). The inverted-repeat sequences flanking this region are still recognizable, each with 2 of the 11 bases being changed. The H-repeat-associated open reading frame located within this region has a 267-bp deletion and a number of mutations (including frameshift mutations) at various positions.
Identification of O157-specific genes.O antigen gene clusters generally contain about 8 to 20 genes, falling into three general classes: (i) genes for synthesis of nucleotide sugar precursors such as dTDP-rhamnose or GDP-N-acetylperosamine, (ii) genes for transfer of sugars to build the O unit, and (iii) genes which carry out specific assembly or processing steps in conversion of the O unit to the O antigen as part of the complete lipopolysaccharide (see the reviews by Reeves [25, 26] and Whitfield ). Genes of the first class are commonly present in many O antigen clusters, and sequence similarity is usually sufficient to identify these genes in database searches; they may therefore give cross-reactions in DNA-based assays. Genes of the second class are often group specific since they are specific for both sugars of the linkage, and, furthermore, transferase genes for a given linkage in different clusters may show negligible similarity (e.g.,wbaW [rfbW] of S. enterica group C2  and any of the presumptive α-mannose 1→2 mannose transferases of S. enterica group C1 ). Genes of the third class encode proteins such as the O antigen polymerase and the flippase: these are most easily identified on the basis of predicted transmembrane segments rather than sequence per se and may also be group specific.
We used 16 pairs of oligonucleotide primers (Table 2), based on the sequences of transferase, wzx, and wzy genes of O157, in PCR with 34 pools of DNA (Table 1) to test the specificity of these genes. The DNA in pools 1 to 21 includes DNA from strains representing the 165 other known E. coli serotypes, the DNA in pools 22 to 30 includes DNA from E. coli O157 strains or strains of other species (Brucella abortus,Y. enterocolitica O9, and S. enterica serovar Adelaide) which cross-react serologically with E. coliO157, and the DNA in pools 31 to 34 includes DNA from 11 Y. pseudotuberculosis, 12 Shigella boydii, 12S. enterica, and 12 V. cholerae strains, respectively, with each strain having a different O antigen. Each of the 16 primer pairs produces a band of the predicted size from pools containing O157 DNA (pools 22 to 27) (Table2). Several other pools gave bands of different sizes from that expected, which are attributed to nonspecific priming (Table 2). However, one primer pair produced two bands with Y. enterocolitica O9, one of which was the same size as that from the positive control: this pair of primers is based on the wzy sequence (Table 2). The predicted secondary structures of Wzy proteins are generally similar, although there is generally very low similarity at the amino acid or DNA level among the sequenced wzy genes. Thus, it is possible that Y. enterocolitica O9 has a wzy gene closely related to that of E. coli O157. It is also possible that this band is due to chance hybridization of another gene, since the other two wzy primer pairs did not produce any band with Y. enterocolitica O9. Pool 28 includes DNA of S. entericaserovar Landau (serogroup N), which has the same O antigen asE. coli O157 (23). Pools 29, 30, and 34 include DNA of B. abortus, Y. enterocolitica O9, and V. cholerae O1, respectively, all of which have perosamine orN-acetylperosamine in the O antigen, with the first two also cross-reacting serologically with E. coli O157 antisera (6). These results indicate that the genes tested are highly O157 specific, although one primer pair may have cross-reacted with Y. enterocolitica O9.
Thus, PCR with primers based on genes wbdN, wzy,wbdO, wzx, wbdP, and wbdRis highly specific for E. coli O157, giving positive results with each of six unrelated O157 strains, while only one primer pair gave a band of the expected size with one of the three strains with O antigens known to cross-react serologically with E. coli O157.
We have sequenced the O157 O antigen gene cluster and identified, with various degrees of precision, all the genes required for the synthesis of the O antigen. All but one of the genes have a low G+C content (Fig. 1), as observed for other O antigen gene clusters, and this indicates that, as appears to be quite common, the O157 O antigen gene cluster was acquired by transfer from another species. The exception is manB, which closely resembles the colanic acidmanB gene and has a 54% G+C content. This situation has been observed in the S. enterica C1 and E. coli O7 O antigen gene clusters (15, 19), and it has been suggested that in such cases the O antigen manB gene was derived from the colanic acid gene cluster by recombination (15).
A remnant H repeat, also with a low G+C content, is located upstream ofwbdR. The deletion and mutation in the H-repeat unit indicate that it has been associated with this gene cluster for a long time since last undergoing transposition, perhaps having played a role in assembly of the gene cluster. It is possible that in the absence ofwbdR, the predicted O-acetyltransferase gene, the O antigen would be synthesized with perosamine in place ofN-acetylperosamine and that the gene is not essential for O antigen synthesis: one can speculate that the ancestral gene cluster contained perosamine and that theN-acetyltransferase gene was added by lateral transfer mediated by the H repeat, similar to the H-repeat-mediated gene transfer proposed for the S. enterica D2 O antigen cluster (41).
The currently accepted methods for the detection of Stx-positive O157 strains involve assays for the detection of Stx, either directly or by PCR, coupled with plating on selective media directly or after enrichment with O157-specific antibodies attached to paramagnetic particles, followed by serotyping (O157 O antigen determination). We have now identified genes highly specific to O157, since they were detected by PCR in each of the six unrelated O157 strains but not in any of the other strains tested, including representatives of the 165 other known E. coli O antigen forms, and a range of other gram-negative bacteria. Thus, we believe that the genes are suitable for use in a PCR-based method for identification of O157 strains to replace time-consuming plating and serotyping methods. We also showed that these genes were E. coli O157 specific in that they were not in general detectable by PCR in S. enterica serovar Landau, B. abortus, or Y. enterocolitica O9, which cross-react serologically with O157 antisera; this indicates that a PCR-based method would distinguish these strains from E. coli O157, whereas serotyping methods do not. For Y. enterocolitica O9, the choice of primer for the wzy gene appears to be important since one pair gave a band of the size expected for E. coli O157. The E. coli serotyping scheme is not yet fully comprehensive, and there are other, as yet unidentified, O antigens. For this reason, field strains and conditions must be tested to confirm the specificity, although we believe that all or most of these six genes will be specific to O157 strains. Further specificity can be gained by use of a combination of these genes, perhaps by PCR with primers binding to adjacent genes.
There are many O157 clones (38), and it is the O157:H7 clone for which there is major need for diagnostics. The use of an O157-specific test in screening for this organism is highly desirable, since in its serological form, it is the traditional test for identification of this clone. The O157 O antigen-specific test proposed would have to be combined with tests for other genes such as thestx gene. In this context, it has been shown that O157:H7 strains are in a small group which stands apart from most otherE. coli strains (24, 36-40). There may well be sequences specific to this group which could also be useful to distinguish the O157:H7 clone from others. The use of O157-specific PCR allows one to use PCR tests for both stx (or other genes) and the O antigen, avoiding the need to include serological testing.
We used two or three pairs of oligonucleotides for each gene in the PCR test. Some of the primer pairs produced bands of the wrong size in some or all of the sample pools. We believe that this is due to chance priming elsewhere on the chromosome. This problem can be avoided by using other primer pairs for those genes.
About 20 O antigen gene clusters have been sequenced, 7 of them in this laboratory. Each involved laborious procedures for identification and cloning of the gene cluster before sequencing. For the O157 sequence, we have combined long PCR with approaches used for genome sequencing, involving DNase I shotgun library construction and 96-well tray plasmid preparation, to expedite the sequencing. These methods can be applied to any O antigen gene cluster for which the flanking sequence is known.
This study demonstrated that certain classes of O antigen genes can be highly specific, and now that a given O antigen gene cluster can be fully sequenced within a few weeks, it is possible to quickly sequence an O antigen gene cluster and determine specific probes for PCR-based detection of the O antigen for any new strain which emerges as a serious pathogen.
We thank all the people and institutes listed in Table 1 for kindly supplying strains, and we thank Heather Curd for excellent technical assistance.
This investigation was supported by Bioproperties (Australia) Pty Ltd.
Returned for modification 27 February 1998.
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