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As a general rule, a corporation that acquires the assets of another company is not liable for the liabilities of its predecessor. Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 245(1983). As with many rules, there is an exception. In this instance, the de facto merger doctrine. Under the doctrine, “[a] corporation may be held liable for the torts of its predecessor if (1) it expressly or impliedly assumed the predecessor’s tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligations.” Id.
Courts apply the de facto merger doctrine “when the acquiring corporation has not purchased another corporation merely for the purpose of holding it as a subsidiary, but rather has effectively merged with the acquired corporation.” Fitzgerald v. Fahnestock & Co., 286 A.D.2d 573, 574 (1st Dept. 2001). Courts look for certain “hallmarks” of a de facto merger to determine whether the doctrine applies. These include: “continuity of ownership; cessation of ordinary business and dissolution of the acquired corporation as soon as possible; assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and, continuity of management, personnel, physical location, assets and general business operation.” Id. See also Sweatland v. Park Corp., 181 A.D.2d 243, 245-246 (4th Dept. 1992).
Notably, “[n]ot all of these elements are necessary to find a de facto merger.” Fitzgerald, 286 A.D.2d at 574-75. Courts will look to the substance of the transaction to determine “whether the acquiring corporation was seeking to obtain for itself intangible assets such as good will, trademarks, patents, customer lists and the right to use the acquired corporation’s name.” Id. at 575. See also Wensing v. Paris Indus., 158 A.D.2d 164 (3d Dept. 1990). The concept upon which the doctrine is based is “that a successor that effectively takes over a company in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased.” Grant-Howard Assocs. v. General Housewares Corp., 63 N.Y.2d 291, 296 (1984).
In Atkins v. Ovation Risk Planners, Inc., 2019 N.Y. Slip Op. 30815(U) (Sup. Ct. N.Y. County Mar. 27, 2019) (here), Justice Arlene P. Bluth of the Supreme Court, New York County, considered these rules in denying a motion to dismiss and granting a motion to amend a complaint.
Atkins v. Ovation Risk Planners, Inc.
Plaintiffs Arthur Atkins (“Arthur”) and Stefanii Ruta-Atkins (collectively, “Atkins”) are the successor trustees of a trust established by Arthur’s mother (the “Trust”). The Trust is comprised of two adjacent properties; one is located at 1038 Eastern Parkway, Brooklyn and the other is at 1040 Eastern Parkway, Brooklyn.
Atkins maintained homeowner’s insurance on the properties through Castlepoint Insurance Company. The policy had been purchased by Arthur’s mother prior to her death in 2012. John W. Dolan Jr.’s insurance company (“Dolan”) brokered the policy for Arthur’s mother.
Upon the death of Arthur’s mother, plaintiffs became successor trustees and renewed the insurance policies Arthur’s mother had purchased through Dolan. Plaintiffs alleged that they contacted Dolan to request that the polices be changed to indicate that plaintiff “Arthur Atkins as Successor Trustee” be named as an insured. Plaintiffs claimed that Dolan incorrectly listed the named insured as Arthur Atkins in his individual capacity as opposed to his capacity as successor trustee. Additionally, plaintiffs claimed that Dolan failed to indicate on the insurance policy that plaintiffs lived at the 1040 Eastern Parkway property, not the 1038 Eastern Parkway property.
In 2014, M&R Insurance Company (“M&R”) bought Dolan’s book of business, thereby becoming plaintiffs’ insurance broker. M&R did not correct the deficiencies Dolan purportedly made to plaintiffs’ insurance policy.
Also in 2014, Atkins was sued for the personal injuries that occurred on the 1038 Eastern Parkway property. Atkins put in a claim with Castlepoint, which denied coverage, claiming that plaintiffs were not named in the 2014 policy as “insureds,” Castlepoint did not insure properties owned by trusts, and at the time of the incident, 1038 Eastern Parkway was not plaintiffs’ “residence premises.” As a result, plaintiffs lacked insurance coverage.
Plaintiffs commenced the action against M&R and Ovation in connection with the alleged mistakes made by M&R in failing to make the necessary changes to plaintiffs’ insurance policy. Plaintiffs alleged that Ovation should be held responsible for M&R’s negligence through the theory of successor liability.
Ovation moved to dismiss the complaint, claiming that it could not be liable for any negligence committed by M&R because Ovation is a corporation unrelated to M&R. According to Ovation, the only dealing between the two companies was the 2017 transaction in which Ovation bought a client list from M&R.
The Court denied the motion to dismiss. The Court held that there were issues of fact as to whether the de facto merger doctrine applied. The Court found that by the transaction “Ovation purchased almost all of M&R’s assets including those necessary for the uninterrupted continuation of M&R’s business.” Slip Op. at *4. The Court observed that the Business Transition Installment Purchase Agreement confirmed “that Ovation purchased the entirety of M&R’s client list” as well as “the good will of the business as a going concern, which included but [was] not limited to any and all transferable rights to all intellectual property ….” Id. According to the agreement, M&R’s intellectual property included “M&R’s phone numbers, email addresses, and website.” Id. As further evidence of a de facto merger, noted the Court, “the agreement explicitly state[d] this was done ‘In an effort to maximize retention of renewing policies and maintain continuity for existing client base.’” Id. at **4-5. The Court further observed that Ovation’s homepage advised visitors that Ovation was formerly known as M&R Insurance. Id. at *5. “Thus,” the Court concluded, “the evidence suggests that Ovation could have been set up to be a continuation of M&R, which can constitute a de facto merger.” Such evidence, the Court held, was “enough to defeat the motion to dismiss.” Id.
In denying the motion, the Court rejected Ovation’s evidence that there was no de facto merger. That evidence – an email sent by plaintiffs to Mary Montemarano, one of the individuals who signed the Transition Agreement between Ovation and M&R, and whose email signature said “M&R Insurance Agency” after execution of the agreement – was “not enough to grant the motion to dismiss.” Id.
In light of the reasoning used to deny the motion to dismiss, the Court granted the cross-motion to amend.
Practitioners are taught that they should not elevate form over substance. Atkins is an example of this teaching. As discussed above, the Atkins Court looked at the various “hallmarks” of a de facto merger and concluded that many of them were present. Thus, rather than rely on the form, the Court looked to the substance of the deal to conclude that the transaction was “set up” for Ovation “to be a continuation of M&R.” Although the Court denied the motion to dismiss, its analysis of the evidence shows the importance of examining the substance of transactions. After all, the point of the de facto merger doctrine is to elevate substance over form.

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This chapter provides an introduction to the metapattern as a technique for information modeling.1 It helps to clarify the ontology of subjective situationism as I have developed it so far. In turn, I use the metapattern throughout the rest of this treatise for further ontological design. Later on, I also put it to work for critical assessment of assumptions underlying other approaches to business information modeling.
I designed, and will no doubt continue to design, the metapattern in response to an interest in growing complexity of – computerized – information systems, especially the requirement for adequate conceptual models. The metapattern therefore emphasizes reusability (Wisse, 2001). It adds precision through the combination of a finely grained concept of time stamping and a recursive, simple but formal concept of context. The metapattern is particularly valuable for aligning complex and variable requirements, even across a multitude of organizations with different processes. The concepts of context and time are critically important, allowing for adjustment of models to time-induced and/or situational changes. Especially conceptual models must account for change to maintain their integrity.
Elsewhere, I describe the metapattern's basic concepts, their structure, a comparison with 'traditional' object orientation, and a host of practical modeling cases See Metapattern: context and time in information models (Wisse, 2001). Written for an audience of professional practitioners rather than scientists, Metapattern deliberately passes over ontological considerations. I have taken up ontology for this treatise but refer to Metapattern for my pervasive treatment of the concept of time. Concentrating here on context, while explaining the technique of the metapattern in this chapter, subjective situationism is further developed as an ontology annex epistemology annex semiotics. Once again I emphasize that concepts appear in a different configuration; the meanings of familiar terms change accordingly.
Building upon the previous chapters, I first make (more) explicit what I mean by a model. Model? Why don’t I ‘just’ refer to Peirce for the appropriate sign type?
A familiar feature of Peirce’s theory of signs is a variety of complex and bewildering classifications of different sorts of signs.
At least I am not alone with my puzzlement. For some time I superficially attributed my failure to grasp his sign classification(s) to me being an engineer, rather than the experimentalist Peirce professes himself to be. Now I accept it must be something underlying Peirce’s classification. For it really starts with difficulties with his ontology of firstness, secondness and thirdness.3 And next, what I encounter in secondary sources only increases my doubt about the productive uses his sign classification can be put to. I just don’t recognize a purpose, not as I do for especially the irreducible semiotic triad and the related pragmatism of Peirce. My purpose, that is.
Again, what I look for at this stage of the treatise is to explain what a conceptual model is. Where does it fit the scheme Peirce designed for sign types? Or does it, actually?
I attempt to give a tongue-in-cheek flavor of the problems created, rather than solutions suggested, by his sign classification. For inevitably almost every practical sign is next seen to occupy several classes. Then, what do – such – classes as classes help?
a sign connected with its [o]bject by an association of general ideas in such a way that its [r]eplica calls up an image in the mind, which image, owing to certain habits or dispositions of that mind, tends to produce a general concept, and the [r]eplica is interpreted as a [s]ign of an [o]bject that is an instance of that concept.
requires each instance of it to embody a definite quality which renders it fit to call up in the mind the idea of a like object.
[b]eing an [i]con, it must be a [r]heme. Being a [l]egisign, its mode of being is that of governing [r]eplicas, each of which will be an [i]conic [s]insign of a peculiar kind.
I sense a logic, but fail to grasp it. For explaining what a model is I require grounds that I am comfortable with myself. If I may say so, I proceed in an even more Peircean way than Peirce himself does. I return to his ground, in particular to my subsequent development of it which results in understanding sign use as hexadic dynamics, rather than triadic dynamics.
In § 3.2 I mentioned the difference between observation and engineering. The engineering attitude draws attention to the fact that, or actually to the situation where, signs are not only read but also constructed. The sign user in engineering mode is therefore an active sign developer. From the model of hexadic dynamics, however, it must be concluded that what he produces is not an isolated sign. It is, by the very nature of – the assumption of – hexadic dynamics, a persistent combination of sign and context.
But, then, is not context a sign nature, too? It is. The difference applies between foreground and background, a difference which simultaneously secures their cohesion. Indeed, a situation is a background object from the perspective of the foreground object. Similarly a mental ground (b-interpretant) is the background figure to the mental figure (f-interpretant).
This really is a key point. For the engineered sign consists of both context and … sign. This overlap in terminology is stretching the postmodern attitude too far. Without explicitly shifting levels of abstraction it is impossible that a particular element (sign) is equal to the set (sign) when another element (context) is present which is non-empty by definition.6 Figure 4.1.1 depicts this ambiguity.
Sign as an ambiguous concept.
There is only one solution without the constant need for reference to different situations. For precision either the set-level concept or the element-level concept (or both) must be renamed, leading to different names. I favor retaining sign at the level of the set. There it keeps its widest reach. Yet, it is a departure from using sign at the elementary level of which Figure 2.7.4 is the outstanding example.
What, then, should be the new name for what I originally called sign at the elementary level? I have chosen signature, for reasons that emerge from this chapter. As shown in Figure 4.1.2, a sign consists of a signature in a context.
Introducing the label of signature.
The change of terminology is so important that it is necessary to update Figure 2.7.4. Figure 4.1.3 replaces it.
Introducing signature: update in terminology.
Construction of a sign should naturally be considered from the point of view of the sign user actually doing the constructing. Making sense out of his sign engineering, then, is to start from his ontology. It is to assume that the interpretants involved are about whatever he believes as reality. By the way, it is important to recognize that here no proof of this last statement is required. For it is one of the very axioms of subjective situationism, underlying sign use as a unique process of hexadic dynamics.
For in taking the universal aspect as well as the particular aspect of the individual into account, we think of him as a perspective of the metaphysical object. [... p 136] Hence, the view of the individual as a personal perspective gives us true concrete universality, the synthesis of the particular and the universal. [... p 162] Reality comes to us, not as one system representative of the metaphysical object, but as infinite systems, each uniting a particular with what is common to all. But that common element, the metaphysical object, cannot be isolated; any attempt to do so must at once result in uniting it with another particular, producing thereby another system.
According to hexadic dynamics, the obvious way to create the most comprehensively articulated sign from the sign user’s perspective is to develop a signature representing the object, a context representing the situation, and include the signature in the context so that it may stand for the object’s existence (with)in the situation. At the basis of these dynamics lies the correspondence between f-interpretant and object, and b-interpretant and situation, respectively. These latter statements are again not hypotheses eligible for empirical tests. They are axiomatic. Figure 4.1.4 shows both the correspondences and the containments of the concepts from the hexad.
Hexadic concepts: correspondences and containments.
I repeat that the engineer is the observer of his own developed sign, too. This is implied by the dynamics of consecutive steps where the b-interpretant and f-interpretant resulting from one step are the context and signature progressing into the next step in the process of sign use.
At last I can summarize my concept of model. Any sign ‘stands for’ what the sign user considers objectified reality. That is always his reality, and as objectification it is therefore essentially subjective.
Then a sign is a model when it results from an effort by its engineer to express (his) objectified reality according to a rationalized ontology. The rationalization imposes a conceptual structure on instances. Whether a sign engineer is conscious or not, and if so, to what extent, of the underlying structure when producing an instance is quite another matter. In Chapter 6 I argue for limits of rational signs, including models of course.
With subjective situationism, the minimal difference assumed in reality is that between a situation and an enveloped object. It follows that the minimal difference constructed onto a model should be that between a context enveloping a signature.
A sign user who is capable of engineering models is also called a modeler, for short. Obviously, a modeler can produce from extremely poor to excellent models.
The metapattern is a technique for consistently differentiating between signature and context. It is nontrivial because contexts and signatures are not absolutes. Neither are their relationships fixed. A model must therefore also support representation8 of shifting points of view as explained in § 3.6.
The metapattern, especially as a technique for model visualization, is about variously directing attention. First of all during construction and secondly for observation, it orders unambiguous shifts in an (overall) sign between what may be taken as signature, and what as context. I emphasize that – regardless of the actual confusion of the sign user the malicious nature of his intentions, etcetera – his interpretants are always taken as his beliefs about reality. The whole argument of this treatise is pointless when its axioms are not taken seriously. This holds by the way for any argument.
I outline the metapattern’s principles and actual technique by presenting a fictional, simple case study. In this paragraph I first show what assumptions guide a modeler who applies the traditional frames of reference of relationships between entities with attributes and/or object relationships.9 Entity-attribute-relationship modeling (EAR) and object orientation (OO) share the ontology of absolute, independently existing objects.
In § 4.3 I sketch the metapattern-based approach to information modeling. The adjective of information is added when the purpose of the conceptual model is to engineer specifications which lead to an operational information system. A ‘sign tool’ becomes available for supporting one or more human sign users.
Following the traditional approach to modeling, he probably concludes from “people” that some number of persons is involved. His likely next move is to assume, at least for the moment, differences between individual persons are not important. Concentrating on their similarities, he moves up a level of abstraction. It is person-as-type that he is now interested in to learn more about. As a consequence of this abstraction, person-as-instance is seen, not as an element that contributes to the extensional definition of the person set, but as a possibility that can be materialized from the set’s intensional definition.
Still within the traditional approach to information modeling, the modeler fits the person at type level with relevant properties. Actually, those are property types, too. His key question at this stage is: What is relevant?
It all depends. What purpose(s) is the information about persons going to serve? As the modeler is not told about any purpose, he has a choice between [a] doing nothing, [b] inventing one or more purposes for himself, or [c] trying to find out about them from (other) stakeholders. With the exception of [a], the modeler will attempt to specify properties to suit.
Is the information system going to support, for example, integrated management of magazine subscriptions? Suppose it will have to. He finds it plausible to assign magazine type as a property of person type. From intension this allows a particular person – John, for example – to be subscribed to a particular magazine – say, Business Semiotics Weekly. In other words, first John and next his subscription are instantiated. Figure 4.2.1 outlines what possibilities may be generated from type-oriented modeling.
Information models are traditionally almost without exception at the level of types. It arises to a large extent from the nature of popular languages for computer programming and database management systems. They offer build-in support of particular types. It must be understood that those are, say, computer-oriented types. They match the internal, limited variety of digital machine-information types. Nearly always, those are not the types that are directly suited for a human subject’s purposeful classification, i.e., to reflect his purposeful order in reality.
It is impossible to escape completely from the worldview incorporated by current tools. However, a responsible modeler is at least aware of inevitable bias. So, modeling right away at type level is actually jumping to a conclusion. Problems with this limiting approach do not manifest themselves as long as the prevailing type-orientation of the tool (especially read: programming languages, etcetera, for computers) does not cause a fundamental reduction11 of the relevant variety of reality. As information technology is applied for increasingly complex tasks, it simply follows that the number of failures will correspondingly grow. Strictly intensional modeling will often be insufficient to support requisite variety. Subjective situationism, with the metapattern as its modeling technique, holds that reality is made up of particular situational objects. Instances may of course be grouped into classes, or sets. However, extension is what fundamentally constitutes a type; intension can be a convenient shorthand, with all the risks of reduction.
For the remainder of my treatment of traditional information modeling here in this paragraph, the orientation at type level is implied. What other stakeholders usually experience from the efforts of the traditional modeler are extremely condensed schemata. The real problem is that most modelers are not aware of reductionism. They establish a gap that is difficult to bridge. What is left of Figure 4.2.1 after reduction to type level is shown in Figure 4.2.2. Its simplicity is misleading.
Model with implicit type orientation.
For the sake of fiction, suppose this is how far the traditional modeler has proceeded. I assume that he now wonders about the quantitative aspect of the relationship between person and magazine. How many – types of – magazines can a person subscribe to? Just one? An unlimited number? Is information about the person registered in advance of his very first subscription? Does personal information continue to be available when no subscription remains?
And what about numbers from the perspective of the magazine type? How many persons can subscribe to it? Etcetera. For a healthy publishing company, the modeler specifies a many-to-many relationship (n:m). See Figure 4.2.3. Those numbers are also called the cardinality.
Specifying cardinality at type level.
A many-to-many relationship lacks sufficient precision. It does not support unambiguous selection of information, for example, on the particular magazines subscribed to by a particular person. The proven solution for disambiguation is the introduction – again, at the type level, here – into the model of a third entity/object. In this case, that object is subscription. Keeping the model general, i.e., without specifying when the presence of an object instance of one type is a precondition for the production of an instance of another type,12 Figure 4.2.4 presents the solution to the ambiguity problem.
Disambiguating the model: two one-to-many relationships for one many-to-many relationship.
It usually happens only when programming, or related activities of organizational change, etcetera, is well on its costly way that flaws in the conceptual model are discovered. Suppose the modeler later establishes that not only private persons but organizations, too, subscribe to magazines. This is not a problem when they are not at all different from the perspective of subscription management. All it takes is to rename person. Subscriber, for example, comes to mean any party.
There often are valid reasons for maintaining – the possibility of – differences between, in this case, person and organization. Where the subscription perspective is dominant, person and organization are established as mutually exclusive subtypes of subsciber.13 The modeler adjusts his model as shown in Figure 4.2.5. This option requires controlling the choice between person and organization as a property of subscriber. The diamond-shaped symbol indicates such a mechanism.
Subscriber as the predominant type: organization and person as subtypes.
Where the difference between person and organization is of primary interest, the traditional modeler resorts to so-called subtypes. This will actually always be the preferred solution when person and organization are not only different, but their respective subscriptions as well. At this stage, the traditional modeler of my fictional assignment produces a model as shown in Figure 4.2.6.
Different subscription types for organization and person, respectively.
Strictly regarding subscription management, often no real differences exist between persons and organizations. The orientation at subtyping, however, makes it impossible to escape from proliferation of differences inside the model where no such differences exist in the objectified reality.
A modeler familiar with the metapattern responds differently to the same assignment. Now the metapattern is not a complete departure from entity-relationship-attribute modeling and object orientation. It incorporates their modeling aspects of enduring value. But what has changed are, though small in number, fundamentally important aspects.
The metapattern-equipped modeler will, first of all, try to gain understanding about what particular situation is relevant. After all, her ontology is that of situationism. She concentrates for example on: John having a subscription to Business Semiotics Weekly. What she looks for are clues for productively starting to objectify the situation-as-instance, rather than object instances residing in it. She calls a particular situation: subscribership.
She relaxes on a fixed object orientation because – the metapattern determines that – situation and object are relative concepts (Wisse, 2001; also see Chapter 3, above). A particular situation is also object in another, higher-level situation. Likewise, an object can act as situation in which another, lower-level object resides. Situation, then, is a recursive function of object and relationship.
Aware of the opportunity for upward recursion, she investigates whether subscribership in its capacity as object leads to recognition of another, encompassing situation instance. Suppose she cannot, at such short notice, think of any. Neither are there any stakeholders around to suggest such situations with broader relevance. She therefore puts a firm limit – but a limit from which she can always includes changes – to upward recursion. This is easily accomplished in a visual model by drawing a thick, continuous line. That line represents the outer frame, or horizon, of her objectified reality; it provides her the base in (and of) the model.
The situation of subscribership is now included in the model as if it originates from the totality of objectified reality. From the base line, a thinner line is drawn, and a name for the situation is added. See Figure 4.3.1.
The bottom line of objectified reality, drawn at the top; a situation instance specified.
Only after a situation has been specified does she give closer attention to persons. Actually, she first includes John – hypothesized or not – as an individual. It optimally tunes her to design relevant differences into her model. Her next sketch therefore looks like Figure 4.3.2.
Placing an object instance inside a situation instance.
Again, this procedure especially supports the modeler focusing her attention on how a particular object exists within a particular situation. What is relevant for the modeler about that existence is differential behavior. Because the situation governs – what is different in – behavior, it is John as a subscriber only that the modeler needs to consider at present.
In actual practice, the modeler of course iterates. Behavior is the joint result of object and situation. So, particular behavior is their relationship. Practically she has to start her model somewhere. It is by assuming greater importance for situation. Within this assumption, it is reasonable to speak of situation governing behavior.
Other behaviors by John, or roles that he occupies, may have been relevant in the past. Or they are relevant now, or may be at any time in the future. But they must all be understood within their corresponding, and most likely different, situations. Anything applying to other situations is therefore not relevant within the current focus of the particular situation.
It is this ontologically essential dimension of situation that most characteristically sets the metapattern apart from traditional object orientation (and provides it with important advantages over OO). Compared to an object that (only) exists absolutely, an object believed to exist in a multitude a different situations can unambiguously be modeled – to be equipped – with corresponding behavioral multiplicity.
For information modeling, it is useful to stretch the concept of behavior. And I consider behavior and role synonyms. I habitually use behavior, or role, as a generic term for any set of properties, both static and dynamic. For static properties are really not fundamentally different from dynamic properties. I see the static ones as dynamic, too. It is just that change is valued as absent.
The modeler proceeds to investigate John’s behavior as a subscriber. Soon enough, though, she will also turn to abstraction (with, again, abstraction in the sense of moving from an inspection of instances to the assumption of types). For the prospective information system, is it really necessary to differentiate behaviors of separate individuals? The metapattern consistently urges that fundamentally individual existence must always be honored. But assuming for now that John’s behavior does not differ in kind from the behavior of all other subscribers, she may substitute ‘person in general’ for John.
The number of persons who can be subscribers is now added to the model. This is their cardinality. When she does not want to occupy herself at this early stage with detailing any properties of subscribers, a text balloon suggests that one or more of such properties do exist. Figure 4.3.3 presents what she has modeled so far.
Abstraction from instances to type; specifying cardinality; suggesting behavior annex properties.
The metapattern’s recurrent focus on situation leads the modeler to question whether only subscribership is relevant for persons. Suppose that John needs to be registered as a member, too. She learns that his membership is with the Global Semiotic Society. However, for the time being she chooses to concentrate on John as far as instances are concerned. For the sake of compactness of her model, rather than from type as a principle, she assumes that all members will be registered by the same types of properties as their behavior. This abstraction from member instances to the behavioral type of membership is shown in Figure 4.3.4.
Hypothesizing similar behavior for all members leads to recognition of a generally applicable situation of membership.
Back again at the level of the individual John, she merges her previous models. See Figure 4.3.5.
John with different behaviors in corresponding situations.
In all its simplicity, Figure 4.3.5 shows exactly what the task of the information modeler is. She designs an appropriate balance between sameness and difference. In this case, sameness is expressed by identifying a single object. That is the role of John in her model. But John is everywhere circumscribed by difference. First of all, he appears in different situations, i.e., in subscribership and membership, respectively. Secondly, he is attributed with different behaviors. In general – and with my apologies for inevitable obscurity of expression – the difference of situation establishes for the sameness of object the difference of behavior.
The metapattern is a formal language14 with a strong emphasis on visualization. It is designed to support precisely what is essential to the information modeler’s task. Subjective situationism with its concept of hexadic dynamics of sign provides guidelines for engineering business information models. It is equally possible to describe what is believed to exist (Ist) as what is believed that should be brought into existence (Soll).
The quality of a model improves to the extent that signature and context stand to each other in a way that believably stands for how object and situation are related. The belief part, of course, covers the modeler’s interpretants. Correspondence is not just between sign and objectified reality. That is too crude. Neither should correspondence be understood as merely resting on two separate representational relationships, i.e., one relationship between situation and context, and the other relationship between object and signature.
Rather, a model accommodates irreducibility in the Peircean sense. What the hexad suggests are not only immediate correspondences such as between the elements of the original semiotic triad. In addition, the progression to dimensions supports correspondences at the structural level. Resulting from semiosis to which his “cognitive mass” contributes in a major way, through the structure of his interpretants the sign user infers the structure of reality from the structure of the sign/model. Figure 4.1.4 already diagrams such dual relationships, i.e., of correspondence and containment. I hypothesize sign use as a process with simultaneous dynamics at two tightly connected levels. In fact, the hexad, the hexad from Chapter 2 is the static model of exactly this process.
So, there is also the structural level. The assumption that reality is structured makes the sign user look for corresponding structure in the model. This takes him to the level of elements, and their specific relationships. What is recognizable as being contained by what else? One is the signature, and the other is the context. Whatever structure the sign user interprets in the model-as-sign he then believes to stand for reality’s structure. As the model suggests elements standing to each other, they are taken to represent real objects similarly related.
3. take this table as the general object of analysis which, at this level only, can yield necessary connections, the empirical phenomenon considered at the beginning being only one possible combination among others, the complete system of which must be reconstructed beforehand.
Though the applications of Lévi-Strauss look on the surface different from what I propose, the metapattern is deeply structuralist. What he, as an anthropologist, elucidates is how one culture ‘behaves’ as opposed to another culture. Structuralism is all about comparisons. It recognizes the dual nature of analysis. Wholes cannot be compared to each other without recourse to their respective parts. But then, parts don’t make sense outside a particular whole (also read: situation).
The acceptance of structuralism suffers from exactly this dual, simultaneous emphasis on both the set level and the level of elements. Rather than unscientific, though, it deserves recognition as a serious method that can serve scientific activity well. Including ‘structure,’ it acknowledges more variety in reality than ‘elementary’ methods do.
Actually, situationism introduces yet another simultaneous emphasis. It concerns the sign user. Precisely this inclusion of the subject in an ontology helps to demarcate so-called poststructuralism. Thus, it is structuralism enriched by the dimension of the individual knower.
Meanwhile, the modeler has continued with her assignment. She reaches the point where she has modeled – actually, she has made preparations to model – two behaviors of John. One behavior is as a subscriber, the other behavior as a member. Suppose those behaviors are completely disjunct. It means that no overlap of properties exists, at all. This raises the question about what counts as minimal information required to connect John’s behavior to the situation.
At the point where John enters the situation even the barest identification is sufficient. The metapattern separately establishes this minimal point. That, and only that, is John’s signature. But what in the model, then, informs about John’s behavior in a particular context? This is named, as a pendant of context: intext. As Figure 4.5.1 indicates, the model-as-sign is a variable configuration, not of two, but of three concepts: context, signature, and intext.
Reframing the concept of signature: making room for intext to represent behavior.
The repositioning of signature underlines that an identification only minimally ‘stands for’ an object. It provides the barest reference possible, no (other) representation. What really characterizes an object is its behavior. In fact, given a particular situation, that behavior is the situational object.
The articulation of both a sign and objectified reality each into three, rather than two concepts, should be reflected in the model of sign use dynamics. It makes sense to assume that a structural equivalent of situational object and – its – signature is present in the intelligence of the sign user. I choose to call it focus. What results is an ennead, replacing the hexad. This development from six to nine constituting elements is shown in Figure 4.5.2.
Enneadic model of a step in processes of sign use.
The ennead is a powerful interdisciplinary device. It retains the original elements of Peirce’s triad as dimensions. Along each dimension, three concepts are now arranged. Compared with two concepts per dimension for the hexad, the ennead allows correspondence in more detail, again including the structural level.
[T]he inner psyche is not analyzable as a thing but can only be understood and interpreted as a sign.
The radical conclusion from the orientation at situational behavior is that an object’s identification, its signature, is behaviorally meaningless. The modeler does not have to explicitly include something like an original signature in all her models. Essentially a privileged situation may implied. It serves the only purpose of guaranteeing sameness or, its equivalent, persistent identity across (other) situations. Being a situation in its own right, when included in a model it is represented by a separate context. Made explicit or not, its role is to authenticate an object’s identity in other situations by establishing the signature in other contexts.
This touches upon the reasons why I introduced, in § 4.1, the term signature. A signature itself does not carry information except for leading to an intext as a particular context directs, vice versa. This way, it stands for an object where it exhibits behavior in a situation. Figure 4.5.3 shows the model accordingly expanded.
Literally through the concept of signature, context and intext become concepts that are (more) independent from each other. For how instances of context relate to instances of intext can always change around signatures. This explains the modeling power of the metapattern (Wisse, 2001).
As a consequence of its behavioral emptiness, an object in its identity situation is considered propertyless. No intext therefore appears in the model. Again, an identity serves to preserve an object’s sameness across situations and its corresponding behavioral differences. Conversely, when an object is established in a situation, the modeler must draw its signature from its ‘central’ identity. When that object has not yet been observed in any situation, its identity must be established as a prerequisite for entry in any (other) situation. Obviously, when an object’s existence in the past, present and future is no longer considered relevant in any (other) situation, its otherwise empty identity is also no longer required.
Through lateral connections between signatures, an object’s existence in one situation may be derived from its existence in another situation. As Figure 4.5.4 shows, such relationships are included in the model as curved, broken lines with their arrow pointing at the ‘original’ signature. As a matter of principle, directly or indirectly, a signature is always derived from its identity. As an axiomatic value, the identity’s signature is considered equal to the identity.
An object’s continuity across situations: making derivative relationships explicit.
It is too cumbersome to include these fundamental relationships to an object’s central identity in all information models. When they are absent from a particular model, they should be presupposed.
The modeler continues to concentrate on situational behavior. She models situations onto contexts with the purpose of eliminating behavioral duplication. Disjunct behavior defines situations as disjunct.
Initially, for example John as a subscriber and John as a member both require his address specified in the respective intexts. It probably sounds contrived at first but the additional situation of, say, personship, eliminates the duplication. It is evident John exists as a natural person before he can ever be considered a subscriber and/or a member. Derivations of signature are therefore as shown in Figure 4.5.5. The privileged identity situation is left out for the sake of the model’s compactness; it resides in the background.
Elimination of duplication in behavior results in situations that are by definition disjunct.
There is more to be said about an object’s identification being behaviorally meaningless. And about why the object in its identity situation is essentially propertyless. Especially the name John should not be taken as the individual’s signature, not even where his personship is involved. Rather, any name is better considered a property. The relationships leading from the objects in other situations to personhood, guarantee that John-as-name can be made available there, too.
The radical nature of signatures, only serving to connect context to intext, allows the models to be presented more simply. In Figure 4.5.6, John-as-a-name is now a property of an individual, no longer his signature. The same figure also does away with some unusual naming of situations. I have renamed them according to the role the object plays in that particular situation.
An object’s common name as a property in an appropriate situation.
In computerized information systems, the ‘machine’ can easily provide a single identification value across the different signature instances for a particular object. A user may never notice how an object’s sameness is organized through actual information. All he experiences are meaningful situations from his perspective(s) and, within every situation, meaningful properties of any object.
Again, moving from object instances to situation-determined types of behavior.
The metapattern’s principles for handling multiple contexts have now been explained. Continuing to apply them, the fictional modeler produces a model introducing magazine and subscription. See Figure 4.6.1.
After mastering the metapattern’s basic technique, models can be elaborated.
A provision is still missing for organizations to subscribe to one or more magazines the same way that persons do while elsewhere maintaining the difference between persons and organizations. The radically minimal notion of identity in reality, and correspondingly of signature in the model, makes for a simple solution. Assuming that a person-as-subscriber is indeed not different from an organization-as-subscriber, the separate situation of subscribership is useful. It ‘contains’ by definition only one kind of behaving object. They are subscribers. How those objects behave in other situations, and whether or not their behaviors elsewhere are different between objects, is of no concern from the perspective of subscribership. Whatever behavioral differences are ‘supported’ by other situations does not matter. What for example is considered a car elsewhere may also entertain a magazine subscription. Why not? to transpose Feyerabend’s “anything goes” (1975).
To indicate that a choice exists at the level of individual signatures, and how they fundamentally connect to sameness in different situations, in Figure 4.6.2 a pertinent symbol is added to the arrows of derivation.
Objects with heterogeneous behavior elsewhere are all placed in the same situation when their behavior is homogeneous within that particular situation.
The modeling case has progressed far enough to emphasize that context, signature, and intext are not fixed categories. Above, it already says that situation is a recursive function of object and relationship. This is actually inferred from the metapattern's concept of context, i.e., as a recursive function of signature and relationship. Take, for example, the signature highlighted in Figure 4.6.3 as the point of view.
A metapattern-based model invites the sign user to choose focus.
It is precisely a signature that supports a focus. The experience of a signature or a point of view is a focus, even. Starting from a particular signature, its context is the specification of the situation. Its intext is all what specifies behavior of the situational object. Every change of point of view/signature changes the context and the intext, too. The metapattern thus supports a large variety of sign use with compact models. Figure 4.6.4 suggests two different ‘readings’ from the same model. Every interpretation is driven by a focus. It establishes the signature, and subsequently the related context and intext. A different focus results in the experience of a different signature, etcetera. Already a model small in size can yield a rich harvest in semiosis.
Support of different interpretations (also read: sign uses).
Especially from the perspective of structuralism it may be argued that context is not just the narrow definition of a situation. For a situation does not exist in isolation. It exists with other situations. One situation is determined by other situations; similarly, that situation participates in the establishment of other situations. The narrow context, then, is just the linear path leading from the model’s horizon as the overall perspective to the signature in question. And the wide context is everything the model presents except for that particular signature and its intext. This structuralist view of information, emphasizing context, is shown in Figure 4.6.5.
Narrow context is linear, wide context is structuralist.
It takes practice to successfully apply the metapattern, including the theory (also read: ontology) it incorporates. For another taste of possibilities, Figure 4.6.6 shows how the modeler may have proceeded with her fictional assignment. She takes up the suggestion that persons need to be registered as members, too. Next, she hears a person can only subscribe to particular magazines in his capacity as a member. Her model is easily adjusted to simultaneously accommodate different situations of subscribership. It should be clear that the model of Figure 4.6.6 also covers organizations receiving a magazine as part of some membership. A subscriber can be either a person, an organization or a member. And a member is either a person or an organization.
Modeling a network of unambiguous behaviors.
My description of the metapattern is limited to what is required for the ontological design of this treatise. However, it has more characteristics. For example, from applying the metapattern time receives pervasive treatment. Every node accommodates time. For one thing, it serves to integrate aspects known from data warehousing into operational information systems. Audit trails are also intrinsic. Such features are documented elsewhere (Wisse, 2001).
This chapter outlines the metapattern as a technique for modeling both actual and planned reality in general. Its models abstract from (also read: idealize)19 any tool construction applying digital information and communication technologies.
The metapattern treats context as a variable within the scope of information models. A key assumption is that an object may exhibit multiple behaviors. Every behavior is unambiguously tied in with a particular situation. With a context representing a situation and signature as an object's barest situational identity, through a number of signature instances a single information model represents an object in multiple contexts.
Another vital assumption is that context is a recursive function. Highly compact models result, yet with large structural and behavioral variety. For underlying the metapattern is the design of combining both situation and context even as recursive functions in an encompassing, interdisciplinary semiotic framework of enneadic dynamics. Constituting the ennead in an irreducible way, its concepts acquire new meanings.
1. See my book Metapattern: context and time in information models (2001), Part I, for a comprehensive description. I emphasize that I finished the manuscript of that book before embarking on this treatise.
2. Impressive in both depth and width are F. Merrell’s books Semiosis in the Postmodern Age (1995) and Peirce, Signs, and Meaning (1997).
As I have already mentioned, it is nowadays impossible to gain absolute certainty about being original. However, nowhere do I discover what I consider the more fundamental development of Peirce’s ground such I present here in Chapter 2, and extend in this chapter (see § 4.5). Merrell, too, does not trace back to this ground but makes instead an intricate play out of the original classification of signs in Peirce. In my view, such an expansion of sign use in triadic rather than hexadic terms makes subsequent development of most matters unnecessarily complex. In comparison, situationism provides a relatively simple, straightforward ontology. It is especially the concept of context that Merrell and other authors use ambiguously, i.e., as referring to both context of sign – which is my own specific, unambiguous meaning – and situation of object.
3. See the essay The principles of phenomenology (1880-1910) as compiled, and included in, the collection Philosophical Writings of Peirce (1955, pp 74-97) by J. Buchler. I believe my ennead (see § 4.5) takes me in a different direction than Peirce. Or, rather, it lets me continue from a different perspective. The fundamental difference is that of Peirce’s realism whereas I favor transcendental idealism (see also Chapter 6).
Let me engage in some speculation, at least equaling the obscurity of Peirce’s notions which has been a source of bewilderment with many commentators (see for example Goudge, 1950). Given his numbered classification scheme, I naturally place first-order concepts inside the objectified reality as constructed, or whatever, by the individual’s intellect. Then my second-order classification can more closely resemble peirce’s original interpretation. With my first- and second-order application, nine combinations result. I suppose that in such an extended and transposed Peircean universe, from realism to transcendental idealism, first-firstness is constituted by pure focus. And first-secondness is the relationship, through that particular focus, of a foreground interpretant with its corresponding background interpretant. It becomes even more complex with first-thirdness. It follows from my scheme that it is the set of interpretants mediated by all directly related foci. Again, all this pertains to the objectified reality of an individual. As a model, it suggests a reality that is organized as second-firstness (pure object), second-secondness (specific behavior of situational object), and second-thirdness (an overall object’s integrated behavior in all relevant situations). The sign, mediating between firstness and secondness, encompasses third-firstness (signature), third-secondness (signatured intext in context), and third-thirdness (all configurations of intext-context that are derived from the same identifying signature).
There certainly is some system in this mapping from Peirce’s metaphysical categories onto my semiotic ennead. I doubt its usefulness, however. And frankly speaking, I might be far off with my application of his numbers. In general, that metaphysical strain of Peirce does not contribute to my argument. Vitally important, though, is the triadic character of semiosis, and his embryonic suggestion of ground. Those concepts have inspired the development of the enneadic model of semiosis, outlined later in this chapter.
Actually, I believe a contradiction arises between the Peircean concepts of semiosis and the triad on the one hand, and those of first-, second- and thirdness on the other. T.A. Goudge (1950) attributes discrepancies in the thought of Peirce to his conflicting frames of reference (transcendentalism versus naturalism).
As Peirce‘s special greatness I recognize his insistence that the triad is essentially irreducible. Irreducibility holds that no subsystem can be viably analyzed in isolation. Here, Peirce clearly is transcendental. But doesn’t he also attempt, after all, reduction through his ontological categories? There, it is Peirce the naturalist (or realist). He confuses where he strives after a synthesis of approaches which is logically impossible (and that is why it is equally impossible to grasp conceptually).
I squarely favor his triadic ‘wholeness,’ only replacing it by enneadic ‘wholeness’ for explanation. Any reference to firstness, etcetera, muddles the issue. At the most, firstness, secondness and thirdness are simplified views occurring when bracketing elements of the triad (later: ennead). They are not its constituting elements.
4. See Logic as semiotic. This quotation is from a selection Buchler makes from Peirce’s manuscript of 1903.
5. M. Markovic remarks that Peirce has (1961, p 173) “noted more distinctions among signs and developed a more intricate classification than anyone before or after[.]” I understand Peirce’s mathematically elegant procedure, once the threefold premise of his ontology is established. I also change perspective between contents and form, vice versa. My development of situationism, in the previous chapter, provides many examples.
6. Whenever I write “by definition” it is actually more instructive to read it as: by subjective situationism as ontology.
7. Another advantage of shifting meanings is that it provides a first-hand example of what happens during modeling. It very much is a process of trial and error, of communication strategy, etcetera.
8. Figures 3.6.1 and 3.6.2 already provide exactly such models. For they are, as part of this text, signs standing for something beyond them that is assumed to exist as objectified reality.
I don’t supply references to literature about EAR and OO. § 4.2 provides no more, and no less, than an informal sketch. My aim is to facilitate a general introduction to the metapattern.
A reader interested in how the metapattern compares with other approaches can find references to literature on EAR and OO in my books Aspecten en Fasen (1991), Informatiekundige ontwerpleer (1999), and Metapattern (2001). Especially Metapattern supplies a comparison with the traditional object orientation to conceptual information modeling. I explain the metapattern’s advantages over OO in detail through a discussion of J.J. Odell’s challenging collection of OO-modeling essays Advanced Object-Oriented Analysis & Design Using UML (1998).
10. I hate to make sure, but both John and Business Semiotics Weekly must be read as figments of my imagination.
11. This must be understood in the sense of reductionism about which I have to say more further on in this treatise.
12. It should normally be impossible, clearly, to record a subscription instance without both the person instance involved and the magazine instance requested being already present.
What I don’t elucidate in the main text is that magazine instance is meant as an instance of a magazine type. It is possible, and might be necessary depending on the particular purpose, to consider separate magazine issues, and even separate copies of every issue. I don’t want to burden the fictional case study with such elaborations. On the basis of this note I invite the reader to do so for himself.
13. The diamond-shaped symbol indicates a choice between mutually exclusive results. The number of instances of for example the ‘person’ property is at the minimum zero, and one at the maximum. More precision, necessary for unambiguously ‘programming’ an information system, is not provided here.
14. The – mathematical – formalization of the metapattern is simple and compact. It is presented in Part I of my book Metapattern (2001). See also Informatiekundige ontwerpleer (1999).
Some similarities exist between metapattern and mind mapping. However, a mind map (T. and B. Buzan, 1993) seems to be a visualization, only. There is no attempt at formal expression. Also, explicit support for multisituational behavior is missing. My idea is that mind mapping is a monosituational subset of the metapattern. It therefore – and still quite apart from consistent treatment of behavioral changes over time – misses the degree of freedom that is especially important to model variety. On mind maps see also Mapwise, accelerated learning through visible thinking (2000) by O. Caviglioli and I. Harris.
The concept of mindmap is derived from what in cognitive science are called semantic network models for representing how information is supposedly structured in human memory (referring to a few textbooks among many, see L.E. Bourne, R.L. Dominowski and E.F. Loftus, 1979; S.K. Reed, 1982). There have been important attempts to escape from strictly hierarchical models (R.M. Quillian, 1968; J.R. Anderson and G.H. Bower, 1973). Though structurally similar to the metapattern, the latter distinguishes different intexts for corresponding contexts. In fact, that is the metapattern’s primary purpose. As semantics suggests that word is the unitary concept, in a semantic network different paths may lead to one and the same node and leave it at that. Pragmatics reflects on behavior. Therefore, in order to accommodate separate behaviors it takes separate nodes as foci for one at the same object. But the metapattern does not show an object-as-a-whole as a single node.
15. What is also known as emerging behavior first of all requires recognition of a system that actually ‘does’ the behaving. Explanation ideally follows from the so-called causal loops connecting the system’s elements to each other, and to the environment (which is implied by what has been considered as system). A pioneering publication on modeling of system dynamics is Industrial Dynamics (1961) by Jay W. Forrester. The approach has more recently been popularized by P.M. Senge with The Fifth Discipline (1990). Also relevant are Systems Thinking, Systems Practice (1981) by P. Checkland and Soft Systems Methodology in Action (1990) by P. Checkland and J. Scholes. In fact, there is a host of interesting publications on the systems approach. One of my favorites is R.L. Ackoff’s Towards a system of systems concepts (1971). See also General Systems: Its Scope and Applicability (1981) by T.D. Bowler.
16. A conversation with my friend Jan Koster brought out that the terminology of modernism and postmodernism is habitually applied to designate two fixed and consecutive historical periods in the development of Western society. From a wider perspective, however, modernism and postmodernism are relative concepts. There exist many publications hinting at this. See for example De Onvoltooide Rede: Modern en Postmodern (especially pp 118-157, 1987) by W. van Reijen.
The separate linear extrapolations that I believe are characteristic of modernism (see also § 1.8) ultimately fan out in territories which are experienced as uncertain. Such overextended modernism may then be called postmodernism. When efforts of subsequent mapping of those (phenomenological) territories, i.e., the new rational frontier, are declared successful, the ground is cleared for the next round of linear extrapolations. Thus, a new modernism sets in, etcetera. Their cyclic nature explains that one modernism’s postmodernism is simultaneously the next modernism’s premodernism. I stress that, as with Nietzsche’s ewige Wiederkehr, there is no overall, unidirectional progress implied by the dialectics of modernism and postmodernism.
When I announced, in Chapter 1, that this treatise presents an ontology, or a metaphysics as it may also be called, for conduct in postmodern life I was referring to an attempt aimed at the current uncertainties generated by an older modernism. Should such metaphysics, or “formal determinants,” indeed prove useful, by definition a newer modernism is established. Therefore, this metaphysics is offered here as essentially modernist, too, but for a different modernism. As Myers argues (1961, pp 30-31): “Every age, as it comes to maturity, presents a spectacle of contradiction and inconsistency in its thought. Before it had clearly realized itself, it applies to its new and growing experiences the variable elements of thought which were adequate to the experiences of former generations but which are now impediments rather than aids to growth. The preservation of what held good only for the experiences of a given time constitutes the untimely nature of much metaphysical thought; the mark and evidence that it is untimely, as it struggles to integrate experiences for which it is inadequate, are inconsistency and contradiction. The revolt of philosophy against the untimely, brought about when the inconsistency and contradiction become intolerable, finally reveals what is timely. Thus, in order to know what is timely for us, we must first know what is inconsistent and contradictory, what is untimely, in our thought.” Elsewhere in Systematic Pluralism, Myers continues (p 56): “[R]easonable and timely elements become unreasonable and untimely when a timely pattern, mistaken for the logic of metaphysics itself, is carried over from one time to another.” The expression of a timely metaphysics is usually problematic. A person will only be (Myers, 1961, p 140) “wasting his time in attempts to translate his new conception into old terminology.” You’ll “never quite make the jump,” Myers warns. His “lesson” (p 139): “[W]hat is new in the thought of a philosopher is best brought out by the figures of speech which present themselves to his imaginative insight; if the new conception has any worth in metaphysics, the very terms of the figure are apt to possess a literal truth where the older, supposedly more literal terminology breaks down into contradictions and insufficiency.” I now find situation a metaphysically “apt” term. And subject, of course.
17. Voloshinov also publishes about the psychoanalytic theory of Freud.
18. I discuss this at length in my book Metapattern (2001).
19. On idealized design (Ackoff, 1978), see note 1 in Chapter 1.

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General. The OMA does not expressly address multistate or regional bodies, but arguably covers them, at least insofar as Alaska public officials are meeting in their capacity as such. This situation raises questions, however, such as whether the group could be considered a body of the state or a political subdivision of the state, how many Alaska members would suffice to bring the body within the scope of the act, and how many members, Alaskan or not, would trigger the definition of a meeting if the body is covered.
Interstate Compacts. In some instances, legislation establishing or authorizing participation in multistate or regional bodies specifies terms of public access to meetings and records. For example, the Interstate Compact for Adult Offender Supervision establishes an Interstate Commission that meets at least annually, and more often upon call of the chair or of 27 or more compacting states. Public notice must be given of all Commission meetings, and meetings must be open to the public except as otherwise provided in the statutory compact, or as set out in rules adopted by the Interstate Commission consistent with principles contained in the Government in Sunshine Act, 5 U.S.C. 552(b). AS 33.36.110(e), (f). The Interstate Commission and any of its committees may close a meeting to the public if it determines by two-thirds vote that an open meeting would be likely to (1) relate solely to the Interstate Commission's internal personnel practices and procedures; (2) disclose matters specifically exempted from disclosure by statute; (3) disclose trade secrets or commercial or financial information that is privileged or confidential; (4) involve accusing any person of a crime, or formally censuring any person; (5) disclose information of a personal nature when disclosure would constitute a clearly unwarranted invasion of personal privacy; (6) disclose investigatory records compiled for law enforcement purposes; (7) disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated entity for the purpose of regulation or supervision of the entity; (8) disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; or (9) specifically relate to the Interstate Commission's issuance of a subpoena or its participation in a civil action or proceeding. AS 33.36.110 Article VI. (f). For every meeting closed under (f) of this provision, the Interstate Commission's chief legal officer shall publicly certify that, in the legal officer's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes that shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons for the action, including a description of each of the views expressed on any item and the record of any roll call vote as reflected in the vote of each member on the question. All documents considered in connection with any action shall be identified in the minutes. AS 33.36.110 Article VI. (g).
c. Exxon Valdez Oil Spill Trust. In August 1991, the U.S. District Court approved a Memorandum Agreement and Consent Decree entered into between the United States and the State of Alaska in settlement of claims to money received for injury, loss and destruction of the natural resources affected by the March 24, 1989, Exxon Valdez oil spill. Federal trustees are appointed by the President, state trustees by the governor. The provisions of the OMA, AS 44.62.310 - .319, apply to a meeting related to the trust in which (1) one or more of the state trustees and one or more of the federal trustees participate, except to the extent that applicable federal law conflicts with AS 44.62.310 or 44.62.312, in which case the applicable federal law governs; or (2) two or more of the state trustees, but none of the federal trustees, participate. AS 37.14.430(a). Notwithstanding section .430(a), the OMA does not apply to a discussion between the trustees outside of a formal meeting about matters related to the trust if, during the discussion, no decision is made and none of the trustees agrees to vote in a particular way. AS 37.14.430(b). The state trustees may discuss the establishment of an official common state position regarding the trust in executive session under AS 44.62.310(b) and (c)(1). AS 37.14.430(c).
The meetings of multistate or regional bodies must be held in accordance with the FOIA, as must a joint meeting of two governing bodies. Ark. Op. Att’y Gen. No. 85-173; Inf. Att’y Gen. Op. (Aug. 31, 1987).
Under Act 253 of 2001, the Interstate Commission for Adult Offender Supervision created by interstate compact must give public notice of all its meetings, which “shall be open to the public, except as set forth in the rules or as otherwise provided in the compact.” Act 253 of 2001, art. VII(f)(1). The commission and any of its committees “may close a meeting to the public where it determines by two-thirds vote” that an open meeting would be “likely” to: relate to internal personnel practices; disclose trade secrets or other confidential information; involve accusing someone of a crime or the formal censure of a person; disclose information of a personal nature which, if made public, would constitute a clearly unwarranted invasion of personal privacy; disclose investigatory records compiled for law enforcement purposes; disclose records relating to the commission’s regulation or supervision of an entity; disclose information which, if made public, would endanger the life of a person or the stability of a regulated entity; or relate to the commission’s issuance of a subpoena or its participation in a civil action or proceeding. Act 253 of 2001, art. VII(f)(3).
A multistate body could presumably be subject to the Bagley-Keene Act if a member of a state body serves on it in his or her official capacity and the multistate body is supported by funds from a state body. See Cal. Gov't Code § 11121(d).
Regional bodies, if they fall within the definition of a "state body" in the Bagley-Keene Act or "legislative body" of a "local agency" in the Brown Act, would be governed by the open meeting requirements of that Act. For example, a planning commission is subject to the Brown Act. 73 Ops. Cal. Atty. Gen. 1 (1990).
An interagency police department task force is a "local agency" subject to the Brown Act where the agency was formed as a separate legal entity under the Joint Exercise Powers Act, pursuant to written agreements by the participating city councils, and where the agency had a budget of more than $9 million and had the authority to enter into contracts. McKee v. Los Angeles Interagency Metropolitan Police Apprehensive Crime Task Force, 134 Cal. App. 4th 354, 359, 36 Cal. Rptr. 3d 47 (2005).
These bodies are covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984).
Intra-state regional bodies are subject to the Act. O.C.G.A. § 50-14-1(a)(1)(D). The Act does not address multi-state bodies and no cases have addressed the applicability of the Act to such bodies.
It is unlikely, although not impossible, that such organizations will meet the Sunshine Law definition of "board."
Regional bodies within the State of Idaho, such as planning authorities, are subject to the Open Meeting Law if they are created by or pursuant to statute. Idaho Code § 74-202(4)(b). The law does not expressly encompass multistate bodies, although its language is broad enough to arguably include them within its scope so long as they are created by or pursuant to statute. The law does not address any jurisdictional disputes that might be raised in attempting to impose the law's requirements upon a multistate body.
There is no case law in which the question of whether a multistate body is subject to the Act is addressed. A regional body operating entirely within the state is more than likely subject to the Act if it is composed of representatives of government.
Though the law does not specifically address multistate or regional bodies, if these bodies fit the definition of a public agency, they would be covered by the Act. See Ind. Code § 5-14-1.5-2(a).
Those receiving or expending public funds and supported in whole or in part by public funds are subject to KOMA, K.S.A. 75-4318(a).
Multistate or regional bodies are included in the Open Meetings Act. See Ky. Rev. Stat. 61.805(2).
Under the Act's definition of a public body, it appears to only be applicable to state or local public bodies. See § 3-101(h); cf., C.T Helmuth and Assocs. v. Washington Metro Area Trans. Auth., 414 F. Supp. 408, 409 (D. Md. 1976) (holding that interstate transit authority is not subject to the Act absent some agreement between the states to an interstate compact). The Appalachian States Low Level Radioactive Waste Commission has been expressly exempt from the Act. § 3-101(h)(3)(v).
The definition of "public body" in Mich. Comp. Laws Ann. § 15.262(a) refers to only state and local bodies. Compare the FOIA's definition, which includes "regional" governing bodies. Mich. Comp. Laws Ann. § 15.232(b)(iii).
Multistate or regional bodies that receive public funds are subject to the law. See Mont. Code Ann § 2-3-203(1).
No case law. There is a serious federal constitutional question whether a state can unilaterally enforce its laws against an agency created by an interstate compact of which the state is a member and to which Congress has given its consent. The Nebraska Attorney General has opined that the open meeting law does not apply to the Central Interstate Low-Level Radioactive Waste Commission, an administrative body created by an interstate compact. Op. Att'y Gen. No. 89008 (2-14-89).
If the multi-state or regional body is an administrative, advisory, executive or legislative body composed of public bodies or is created by a governmental entity, then it likely is subject to the OML.
RSA 91-A:1-a,VI(e) defines “public body” to include: “Any corporation that has as its sole member the state of New Hampshire, any county, town, municipal corporation, school district, school administrative unit, village district, or other political subdivision, and that is determined by the Internal Revenue Service to be a tax exempt organization pursuant to section 501(c)(3) of the Internal Revenue Code.
There are no reported cases applying the Sunshine Law to multistate or regional bodies.
Such may be subject to the Open Meetings Law if they exercise any authority of any state board, commission, or other policymaking body. NMSA 1978 § 10-15-1(B).
Although the Open Meetings Law does not expressly address multistate bodies, it seems clear that a delegation of two or more members appointed by a political subdivision of North Carolina would constitute a “public body” subject to the Open Meetings Law.
There is no specific statutory provision regarding such bodies.
A gathering of officials from several political subdivisions is subject to the sunshine law where the majority of the members of several public bodies are together. State ex rel. The Fairfield Leader v. Ricketts, 56 Ohio St. 3d 97, 564 N.E.2d 486 (1990). The statute does not expressly address multistate bodies, nor does case law.
Regional bodies within the state are subject to the statute. Stegall v. Joint Two Dist. Memorial Hosp., 20 Ohio App. 3d 100, 484 N.E.2d 1381 (1985); Ohio Rev. Code § 715.70 (board of directors of joint economic development districts); Ohio Rev. Code § 1710.02 (special improvement districts).
If a body is supported by public funds or has actual or de facto decision-making authority to bind a governmental body, then a multistate or regional body is subject to the act. 1981 OK AG 311. An entity that is formed by multiple counties pursuant to statutory authorization and performs a delegated function, such as self-insurance, that would otherwise be done by the individual counties and that receives funding from such county governments is subject to the Act. 1999 OK AG 37.
The Attorney General believes these agencies may be subject to the Public Meetings Law if their Oregon members constitute a majority or if they have a committee with a majority of Oregon members that is authorized to make decisions. See Attorney General Manual II.B.3.
The OML limits coverage to public bodies “of state or municipal government.” R.I. Gen. Laws § 42-46-2(3).
If the body meets the definition of a public body under the act, that is a body supported in whole or in part by public funds or expending public funds, it would be subject to the act. S.C. Code Ann. § 30-4-20(a).
These bodies are not specifically covered.
No authority has addressed whether the Tennessee Act covers multistate or regional bodies.
Multistate or regional bodies are not specifically mentioned in the Act, although the definition of a “meeting” includes a deliberation between a quorum of a governmental body and “another person.” § 551.001(4). Such a body also may fit the definition of a “special district” covered by the Act. See Sierra Club v. Austin Trans. Study Policy Advisory Comm., 746 S.W.2d 298, 301 (Tex. App.—Austin 1988, writ denied) (a 17-member committee of state, county, regional and municipal public officials was a “special district” subject to the Act because it had decision-making powers).
The Open Meetings Act does not state whether multistate or regional bodies (such as planning authorities) fall within its scope. However, if a quorum of a public body meets at a multistate or regional meeting, and discusses or takes action on a subject over which the public body has jurisdiction, the Open Meetings Act arguably should apply. See Utah Code § 52-4-103(9).
These bodies are not statutorily exempt from the Act.
Other than the policy group of publicly owned utilities mentioned above, there is no specific coverage for multistate or regional bodies. A federal court has held that meetings of interstate advisory committees are not subject to the Act where the governing body of any particular state agency did not attend nor did the multistate body have any final authority. United States v. State of Oregon, 699 F. Supp. 1456 (D. Or. 1988), aff’d, 913 F.2d 576 (9th Cir. 1990), cert. denied, 501 U.S. 1250 (1991).
Where a multistate or regional body holds a meeting in this state, the threshold question is whether it is a "public agency" under the Open Meetings Act. The statute's definition of public agency is limited to agencies of government in this state, whether it be on the local, county, or state level of government. The fact that the membership of these two bodies is not limited to this state, but includes other states, seems to preclude the Act from being applied to the entire multistate or regional body. However, to the extent a multistate or regional body consists in part of state representatives who form a public agency within the larger organization, this West Virginia public agency would be subject to the Act.
If the body was created by the Wyoming constitution, statute or ordinance, and is a multimember body, the Public Meeting Law should apply. Id.


The Software Freedom Law Center said that, in its opinion in CLS Bank v. Alice,1 the Supreme Court “took one more step towards the abolition of patents on software inventions. Upholding its previous positions, the Court held that abstract ideas and algorithms are unpatentable. It also emphasized that one cannot patent ‘an instruction to apply [an] abstract idea … using some un-specified, generic computer.’”2 Though very little in the Alice opinion is clear or free from doubt, this is one oft-heard interpretation of the case. Software patents are in the dock, awaiting sentencing. Many predict a swift execution.
Certainly the post-Alice cases point in that direction. No patent claiming software-related technology seems to have survived §101 since the Alice opinion was issued.3 Faced with the high-concept “test” or “approach” of Alice – which provides very little concrete guidance – district courts have so far done what appears to be the safe thing. They have taken refuge in the basic holding of the case. Whatever else the opinion says or fails to say, at the end of the day the patent was declared invalid. So it appears that, understandably, trial courts have taken this to be the true lesson of Alice: These sorts of patents are now invalid.
While these decisions make sense in the immediate aftermath of the Alice case, the Federal Circuit must make a course correction. The chief patent court must not allow Alice to stand for the simple proposition that software patents are invalid under §101. That is not what the case says. And it would not be good policy to apply Alice that way. There are patents in the software field that are not, under any reasonable meaning of the term, “abstract ideas.” The Federal Circuit needs to wait until one of these cases pops up on appeal. And then it needs to reverse the district court, which will surely have invalidated the claim or claims in question.
What Kind of Case Could Put Alice in Perspective?
The ideal vehicle for a course correction would have three features: (1) The claims would cover real technology; they would embrace a clever and novel invention in an area of interest to computer scientists and/or computer programmers (as opposed to marketing or other business people); (2) the invention would be recognized as significant or important in a technology field and/or business market; and (3) the patent would be owned by a company that actually makes and markets technology-based products, ideally a smaller company for which the presence of a patent can be shown to enhance its economic viability and its ability to compete with larger companies in its field.
Fortunately for those of us who follow this sort of thing, a recent case out of the Central District of California just might fit the bill. In McRO vs. Activision Publishing, Inc.,4 one of a series of cases involving the same patents asserted against numerous accused infringers, Judge George H. Wu of the Central District of California invalidated the patent in the case as an abstract idea under §101, and ruled from the bench that the trial was therefore over. But a close look at the technology involved, and the overall context of the case, shows an invention that only by a great stretch might be deemed “abstract.” The nature of the technology in McRO is so far removed from the banal business methods of Bilski and Alice, and forms part of such an innovative sector of the animation field, that the case is simply begging to be reversed by the Federal Circuit. McRO represents the best recent vehicle for the Federal Circuit to use to begin applying some counter-pressure to the trend that Alice set in motion.
The technology in the McRO case comes from the animation field. It translates spoken words into mouth movements in three-dimensional animated images. This technology helps to automate the process of adapting an animated image to mouth words without having to draw or manually program the animated movements of a character’s mouth. The software takes as its input recordings of spoken speech, and provides as output a sequence of animated images of a mouth speaking the words in the recorded input.
Three years ago, Maury Rosenfeld, president of Los Angeles visual effects facility Planet Blue created Tulip, a combination facial animation and speech modeling system. “At the core of our system is speech recognition,” said Rosenfeld. “We take an extraction of both the phonetic content of what people are saying, along with pitch and rhythm.” A facial expression model, which integrates with the speech recognition model, is guided by the animator who “directs” the mood, with the system automatically doing the rest.
Planet Blue, the company cited by animator Rosenfeld, is the operating division of the plaintiff in the McRO case, McRO, Inc. And Tulip is the commercial embodiment of the invention claimed in the two McRO patents asserted in McRO v. Activision. To get a sense of the technology involved, consider one of the McRO patents, U.S. Patent 6,307,576, “Method for Automatically Animating Lip Synchronization and Facial Expression of Animated Characters, issued October 23, 2001, with a priority date of October 2, 1997.
In the language of this patent, a spatial model of an image of a mouth begins with an initial position, and undergoes a change in shape – a “morph” – during the animation sequence. The animator can input a value that affects the magnitude of the morph; this is called a morph “weight.” The end state of an animation sequence is called a “morph target” – it is the mouth shape at the end of a particular sound.
All sounds in spoken language are broken down into simple units called “phonemes,” and each phoneme is associated with a certain mouth shape. (Think of the round mouth of an “Ohhh” sound versus the pursed lips of a “Ppppp” sound.) A stream of recorded spoken words is broken down into phonemes, and these are associated with mouth shapes; the transitions from one mouth shape (phoneme) to the next are the morphs.
With the technology and claim in mind, let us now consider the Alice case and how it applies to the §101 issue in McRO.
This holding, the Court said, was consonant with “the pre-emption concern that undergirds our §101 jurisprudence.”9 This is the by-now familiar worry that overly broad claims, drawn at too high a level of abstraction, will preempt or cut off specific, concrete patentable invention in the future. This is expressed, alternatively, as a desire on the part of the court not to tie up “building blocks of human ingenuity,” that is, basic or fundamental contributions that can be deployed in a wide array of settings to form components of specific, concrete inventions.
To summarize, then, in the context of a case such as McRO, we look to see whether the claim covers an abstract idea. If so, we ask whether the “what else” in the claim suggests an “inventive concept,” something that makes the claimed invention amount to “significantly more” than just a patent on the abstract idea.
Even if the claim were said to cover an abstract idea, however, I think it embodies an inventive concept that amounts to something that is “significantly more” than the abstract idea itself. In the fine points of the claim, it adds detail, structure, and particularity to the general conceptual category it is part of.
So either way, as a concrete invention or as an abstract idea-plus, Claim 1 should pass through the filter of §101. It goes without saying that the claim may be obvious, may have problems with novelty, may encounter problems under enablement or written description. Passing through §101 is but one of the many filters in the patent system.10 But there is no doubt in my mind that under Alice it is patentable subject matter.
Probably the most difficult aspect of applying Alice is the issue of abstraction. Because abstractness is a conceptual quality, any description of it has the unfortunate feature of being difficult to grasp, ethereal, transcendental. The Oxford English Dictionary includes this definition of abstract: “Withdrawn or separated from matter, from material embodiment, from practice, or from particular examples. Opposed to concrete.” So how do we know when a patent claim has this quality of abstractness?
So we know that the claim in McRO is not invalid simply because it is software. But how do we know that the claim is not abstract? The answer I think lies in constructing a series of hypothetical claims in the general technological space that includes the claimed invention. Then comparing these claims, first to the claims struck down in Bilski and Alice, then to the actual claim in the patent. We ask: On the “hierarchy of abstractness” that stretches from extremely abstract to highly concrete, where does the actual claim fall? If it is closer, conceptually, to the claims in Bilski and Alice, then out it goes. But if it is much closer to the middle or bottom of the hierarchy, it survives. That means it is more concrete. It is not abstract according to the OED definition above, because it is not “withdrawn or separated from practice … or particular examples.” It is, in fact, a practicing embodiment or application of the abstract idea, a particular example rather than an abstract category.
The general approach I am advocating here has much in common with the “levels of abstraction” test, whose origin lies in an influential opinion by Judge Learned Hand in the case of Nichols v. Universal Pictures.14 Though Hand was dealing there with the “idea-expression” dichotomy in copyright law, that issue has much in common with the “abstract idea” issue in patent law. Idea-expression and abstract ideas both guard against the risk that IP rights will over-protect. And they both work by drawing a line between concrete specifics and over-broad generalities.
The place to start is with the field of endeavor of the claimed invention. I would say it is automated animation. This is the field with which the §101 test of Alice would be concerned. The Alice analysis would ask: Is this field preempted by the claim at issue? To the extent this field is a “basic building block” of modern animation, does the claim in effect cover that building block?
1. A method (or system) for automatically mapping dynamic inputs onto a changing sequence of animated images.
2. A method (or system) for automating animation comprising the steps of: (a) taking as a first input a series of still images; (b) taking as a second input parameters relating to general features of desired transitions between said still images; and (c) rendering as output a resulting series of animated images presenting viewers with a continuous sequence of animated movement between said still image inputs.
3. A method (or system) for rendering computer generated imagery comprising the steps of: (a) constructing a database of rest state images from preexisting imagery sources; (b) receiving instructions regarding the desired sequence of rest state images drawn from said database; (c) receiving instructions regarding speed and style parameters desired for automatic intervening images generated according to this method; (d) following said parameters in rendering automatic intervening images; and (e) outputting a combination of rest state images and automated intervening images.
Just in the preamble, the claim is limited to “automatically animating lip synchronization and facial expression of three-dimensional characters”; it does not cover all animation, only deals with lip synchronization, and only applies to three-dimensional (CGI) animation, not two-dimensional traditional cartoon animation.
It employs a very specific approach to the automation of CGI lip-synching: the use of user-inputted rules for “output set morph weights” (sets of user-assigned coefficients to specify characteristics of the end-state of a movement between one mouth shape and another).
It breaks down the initial sequence into a series of subsequences and generates an intermediate sequence of images, based on the timed sequence of phoneme inputs, plus “transition parameters” for producing the final output stream from the intermediate sequence.
My simple conclusion from this is that Claim 1 of the ’576 patent is very different, and much more specific, than the three hypothetical claims listed above. In my view these three claims are roughly similar to the over-broad claims that were invalidated in Bilski and Alice. But they are pitched at a much higher level of abstraction than the actual Claim 1. These hypothetical claims would have almost completely preempted the field of automated animation. But Claim 1 does not; it covers a specific application in one sector of the overall field. It is a brick – maybe a good one, maybe not, but a brick – and not a basic building block.
The ’576 patent in the McRO case provides an excellent vehicle for clarifying the law of §101 patentability post-Alice. It is a specific and detailed invention occupying one corner of the field of automated three-dimensional facial animation for lip-synching. It is a very far cry from the highly abstract claims of Bilski and Alice, which in effect claimed the high-level concepts of risk hedging and third-party transactional guarantors. The ’576 patent is a real invention in a real industry that does not preempt or occupy any large field of endeavor. It may be anticipated, obvious, or not enabled; but it is not an abstract idea.
1. 134 S. Ct. 2347 (2014).
2. “Supreme Court issues unanimous decision in Alice Corp. v. CLS Bank,” Software Freedom Law Center, June 19, 2014, avail. at http://softwarefreedom.org/news/2014/jun/19/SCOTUS-decision-in-Alice-v-CLS/.
3. See, e.g., buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014) (invalidating software patent); Planet Bingo, LLC v. VKGS LLC, 576 F. App’x 1005 (Fed. Cir. 2014) (same); Open Text S.A. v. Alfresco Software Ltd, No. 13-CV-04843-JD, 2014 WL 4684429 (N.D. Cal. Sept. 19, 2014) (same).
4. 2014 WL 4759953 (C.D. Cal. Sept. 22, 2014) (Wu, J.).
5. Debra Kaufman, “Facial Animation: It’s Ready for Its Close-up, Mr. DeMille,” hollywoodindustry.com, September 2002.
6. Id. at p. 1.
7. U.S. Patent 6,307,576 at col. 11.
8. 134 S. Ct. at 2356.
9. 134 S. Ct. at 2358.
10. For an argument that §101 ought to be dealt with last instead of first, see Dennis Crouch and Robert P. Merges, Operating Efficiently Post-Bilski by Ordering Patent Doctrine Decision-Making, 25 Berkeley Tech. L.J. 1673 (2011).
11. 134 S. Ct. at 2357.
12. 403 U.S. 63 (1972).
13. 134 S. Ct. at 2358.
14. 45 F.2d 119 (2d Cir. 1930).


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