Arnan Gavrieli Z”L

January 27, 2015

arnan_gavrieli

It is with sadness that we note that Arnan Gabrieli has passed away.

Arnan Gavrieli was a founding partner and then Senior Partner of Seligsohn et Gavrieli, now Seligsohn Gabrieli & Co. . During a career that spanned over 50 years, he advised and litigated all types of intellectual property law and was party to many of the most significant intellectual property cases argued before the Israeli courts and the Registrar of Patents.  He represented clients in trademark and copyright infringement cases, as well as passing-off, trade dress and trade secret cases.

Arnan Gabrieli was a member of legislative committees which drafted important Israeli IP laws. He was Chairperson of the Ethics Committee of the Israel Bar and of the Complaints Against Patent Attorneys Committee. He also lectured in IP Law in Tel Aviv University and at the College of Management, Faculty of Law.

During the years 1980 to 1987 he served as Editor-in-Chief of “Hapraklit”, Israel Bar Quarterly Review. He was also a previous Chairperson of the Israel branch of the AIPPI.

Arnan Gavrieli is mourned by his sons Nachum and Udi Gavrieli who practice IP Law with the firm.

COMMENTS
Arnan was a registered Patent attorney despite not having a science or engineering degree. He was working in the field prior to 1967 when the Israel Patent Law 1967 was legislated and was ‘grandfathered’ in at the outset.

I served the second year of my qualifying as a patent attorney at Seligsohn et Gavrieli, and then, until in 2004 when I set up my own firm, I effectively ran the Patent Department under the nominal head, Mr Alfred Thee, who was then working part-time, and I believe still is. I am grateful to Arnan for employing me and for the training I received there.

 

 

 

 


Plasson

January 25, 2015

PLasson

Plasson manufactures pipe couplings. Unidelta launched a competing product and Plasson claimed patent infringement of their patents IL 125899 and IL 127327 and passing off and requested an injunction. The District Court accepted the charges that the “main point of the patent” was infringed and issued an injunction preventing the manufacture, import or sale of Unidelta’s pipe connections in Israel as they are a copy of Plasson’s product. On Appeal, the Supreme Court overturned the finding of patent infringement and referred the case back to the District Court. The Supreme Court ruled that where the similarities between the allegedly infringing product and the patented invention lie in features that are in the public domain, there can be no case of infringement.

Background

In addition to literal infringement of the claims of a patent, Section 49 provides grounds for legal remedies where the kernel of the patent is copied. This is rather like the “pith and marrow” doctrine in the UK. Essentially, the Law provides remedies where claim infringement is avoided by a technicality, and may be seen as similar to the doctrine of equivalents. Arguably contributory infringement and inducement to infringe may be considered as judicial extensions of this doctrine. It is important to allow general inventing around, but to avoid situations where poor claim drafting can result in no literal infringement of the claims.  What the Supreme Court has done is to clarify the extent of application of Section 49.

Ruling

Judge Meltzer of the Israel Supreme Court ruled that Section 49 provides monopolistic powers to the patentee to prevent literal infringement of the claims defining the invention and also similar products / processes that infringe the kernel of the invention. In this instance, both parties accept that there is no literal infringement so the only issue is the kernel of the patent. The kernel cannot be wider than that described in the Specification and, where the patent is for a device or system comprising a combination of known parts, the kernel of the patent cannot include the parts themselves. In this instance, the District Court did not address the question of what the kernel of the patent is, and without identifying the kernel of the patent, it is impossible to establish that this is infringed by Unidelta’s product. Once the kernel is established, the court must consider whether the infringing product operates in a similar way to achieve similar results.

The Supreme Court ruled that the patent issued because of a limiting feature added to the other components.

The main claim recites:

“1. A pipe coupling comprising a tubular housing having an axial bore adapted to receive a pipe end to be coupled and having an externally threaded housing portion and an inner housing abutment; a pipe gripping sleeve having formed therein a plurality of substantially equiangularly distributed, axially directed slits extending from a first end thereof to a region adjacent to but spaced from a second and opposite end thereof thereby defining an integrally formed, axially distortable, ring-like sleeve end portion, a first axial portion of said sleeve, through which said slits extend, tapering externally from a peripheral, outwardly directed flanged portion towards said first end and being formed with a plurality of inwardly directed, axially spaced apart serrations; a tubular collar having a first inner axial portion tapering from an inner collar abutment to a first end of said collar and a second inner axial threaded portion extending from said collar abutment to a second and opposite end of said collar; and a flexible sealing ring; the arrangment of said coupling being such that with said pipe end extending through said collar, sleeve, sealing ring and housing, said collar is screw fitted on said housing, said sleeve is located in said housing and said collar with said flanged portion located between said collar abutment and an adjacent end of said housing and said sealing ring is located between said sleeve ring and said housing abutment; screw tightening of said collar on said housing causes the respective tapering portions of the collar and sleeve to be mutually displaced with the gripping contraction of said sleeve about said pipe end and the axial compression of said sealing ring about said pipe end”.

Plasson’s patent is for a ring fitting that includes a wide and flexible ring that enables different sized pipes to be attached together in one smooth motion without dismantling the connector. Since Unidelta’s system did not include this limiting feature, but merely combined pre-existing components to create an alternative pipe fitting, there was no infringement of the kernel of the patent.

Quoting from the specification:

Pipe couplings of the type herein described, which are presently in wide-spread use, normally require pushing the pipe through the seal (typically an O-ring) in the bore of the body member in order to achieve compression of the O-ring on the pipe, and thus a leak free joint. However, for pipes of large diameters, the operation of pushing the pipe through the O-ring seal requires a large force, making the operation very difficult, and sometimes even necessitating an extra operation of chamfering the pipe end for this purpose.

A further disadvantage in the pipe couplings of the type herein described now in use is that such couplings do not tolerate substantial variations in the pipe diameter so that precise pipe diameter tolerances must be maintained, or a large number of different-size couplings must be produced for the different diameter pipes to assure good sealing and gripping actions”.

“…a pipe coupling constructed in accordance with the foregoing features provides a number of important advantages including: convenient assembly, since the particular seal, in its relaxed condition, introduces very little resistance to the forceful entry of the pipe during assembly; …increased diameter range of pipes capable of being coupled, since the two-ribbed (or three-ribbed) sealing ring can accommodate substantial differences in diameter sizes…”.

This emphasizes that Plasson did not invent the only pipe coupling for joining pipes of different diameters, and there patent was limited to one that is easy to seal due to little resistance.

As to passing off, the Supreme Court was critical of the District Court for finding this without explanation of why they considered that this was applicable. The Supreme Court referred the case back to the District Court for further consideration on this issue.

Judge Meltzer established costs against Plasson of 75000 Shekels.

Judge Miriam Naor (now president of the Supreme Court) commended Judge Melzer on reducing the issue to non-technical matters without technalese that regular people could understand.

Appeal 6750/10 Unidelta vs. Palson, Supreme Court 18 December 2014

COMMENT

One wonders who the non-technical people are in this case, plumbers or the President of the Supreme Court? Is the technical issue here flanges and pipes, gaskets and washers, or non-literal infringement, pith & marrow and other legalese?


Chinese Copycat Products not illegal and down will come baby, cradle and all…

January 25, 2015

rockabye

Dvaron Import-Export sell a baby rocker.  The products were manufactured and imported from China. Fisher Price Inc. and Mattel Inc. sued claiming copyright infringement, passing off, trademark infringement and Unjust Enrichment. They alleged that their intellectual property was infringed by the product, it’s upholstery and instruction manual which they claimed were accurately copied. Both Dvaron Import-Export and directors Aharon Stein and David Ben Shushan were sued.

The Nazareth District Court threw out the charges noting that there was no patent or design registration and that the defendants had not infringed any trademark registered by Fisher Price or Mattel. Claims for reputation and confusing the public as required for a finding of “passing off” were also rejected.

The Court ruled that copying products per se. where there are no registered rights, does not, in and of itself, create grounds for an injunction. Each case has to be judged on its merits. There is no copyright in the design of functional articles, including their form, although sometimes articles includes artistic elements that are protectable.  Copyright does not apply to rocking chairs or to their upholstery which should be protected by a design registration.

Copyright does cover instruction manuals however, as these are literary creations. However, the defends are not responsible for the contents of the instruction manual infringing the copyright of Mattel or Fisher Price as they could not know that Mattel or Fisher Price had copyright in this, and they are thus innocent infringers. The Chinese manufacturer had indeed reproduced Fisher Price illustrations but one would not generally notice this or Fisher Price logos in the images, and purchasers would only see the instruction manual after purchase.

As to Unjust Enrichment, in 5768/94 A.Sh.I.R. the Supreme court found that applying this doctrine where there is no infringement of registered IP rights requires an additional element of bad faith which, in the present instance is not found

Fisher Price Inc. and Mattel Inc. could not show a reputation in the product. The mere copying is not in and of itself an additional element of bad faith and the charges were rejected.

As the charges were rejected, the issue of personal liability of the directors was moot.

Costs of 30,000 Shekels were awarded against  Fisher Price Inc. and Mattel Inc. As to goods seized under an Anton Pillar injunction by Tel Aviv Magistrate’s Court, Judge Ben Hamu referred the parties back to that court to rule on the issue.

T.A. 39534-02-12 Fisher Price et al vs. Dvarron et al., Judge Yosef Ben Hamu, 8 January 2015.


US Supreme Court Overturns Federal Circuit’s Ruling Regarding Validity of Patent for Teva’s Copaxone

January 21, 2015

copaxone

Copaxone is a blockbuster drug based on the glatiramer acetate copolymer which was patented by Yeda (the Tech Transfer Company of the Weizman Institute) and licensed exclusively to Teva to manufacture.

On Tuesday 20 January 2014 the U.S. Supreme Court reversed an appeals court ruling that invalidated Teva Pharmaceutical Industries patent on the blockbuster multiple-sclerosis drug Copaxone, giving the drug maker a new opportunity to forestall generic competition.

The claims specify a particular molecular weight range but do not specify what method was used to measure the molecular weight. Sandoz argued that this is a fatal flaw and the claims are indefinite under §112. The District Court found for Teva, and was convinced by Teva’s argument that the claim clearly meant the “peak average molecular weight”, and not either of the two alternatives of “number average molecular weight” or “weight average molecular weight”.

On appeal, the Federal Circuit held to the contrary and found the patent invalid for indefiniteness. In reaching this conclusion, the Federal Circuit reviewed de novo all aspects of the District Court’s claim construction, including the District Court’s determination of subsidiary facts. The issue before the Supreme Court was whether that was permissible, or whether the Federal Circuit had impermissibly set aside the District Court’s findings of fact without the requisite finding of clear error on the part of the District Court (in violation of Federal Rule of Civil Procedure 52(a)(6), for what it is worth). The Supreme Court of the USA accepted TEVA’s appeal that found that the Federal Circuit had indeed impermissibly conducted a de novo factual review. So the Federal Circuit’s decision was vacated and the case remanded.

The Supreme Court Decision ruling was made by seven judges with two dissenting. Justice Breyer gave the Opinion with Justices Roberts, Scalia, Kennedy, Ginsburg, Sotomayor and Kagan affirming. Justice Thomas filed a dissenting opinion which Justice Alito concurred with. According the majority opinion the Federal Circuit had indeed impermissibly conducted a de novo factual review. So the Federal Circuit’s decision was vacated and the case remanded. In the dissenting view, the opinion was that the Federal Circuit had not overturned findings of fact, but had instead formed a different conclusion of law as to the claim construction. Therefore, there had been no breach of the Federal Rules of Civil Procedure. The case has been referred back to the Federal Circuit Court of Appeals.

COMMENT

The ruling will help TEVA prevent generic competitors from entering the Copaxone market until the patent expires in September. There seems to be a power struggle going on in the US court system with the Supreme Court reprimanding the Federal Circuit for assuming powers that are not rightfully theirs.


PCZL (Pearl Cohen Zedek Latzer LLP) Appeals Source Vagabond Decision Sanctioning the Law firm for bringing Frivolous Law Suit.

January 21, 2015

shlooker

Background

Source Vagabond is one of a number of companies making personal portable water supplies that are known in Israel as Shlookers – a shlook being slang Hebrew for a sip.

On August 2, 2011, Source Vagabond sued Hydrapak for, inter alia, infringing “at least claim of the US 7,648,276 patent, either literally, or under the doctrine of equivalents.” On September 16, 2011, Hydrapak served a sanctions motion under Rule 11 which provides that, before a motion for sanctions is filed, the party against whom the sanctions will be sought must be notified of the potential Rule 11 violation and given a twenty-one-day period to withdraw the offending claim. Fed. R. Civ. P. 11(c)(2). Source declined to withdraw. On October 6, 2011, Source filed an Amended Complaint, and on October 12, 2011, Hydrapak served an amended Rule 11 motion.

The court of first instance ruled that granted Hydrapak’s motions for summary judgment and Rule 11 sanctions on April 11, 2012.

Regarding claim construction, the court said there was “nothing complicated or technical” about the claim limitation “slot being narrower than the diameter of the rod,” and that none of the words of this limitation “requires definition or interpretation beyond its plain and ordinary meaning.” Accordingly, the court gave “slot being narrower than the diameter of the rod” its“plain and ordinary meaning.”

The district court stated that Source’s proposed claim interpretation “violates all the relevant canons of claim construction” and that even under Source’s own construction, Hydrapak did not infringe. It also found the literal infringement claim “lacked evidentiary support no matter how the claim was construed” and “the difference is apparent to the naked eye, and the tape measure leaves no room for doubt.”

Specifically, the district court determined that in Hydrapak’s products the slot is larger than the diameter of the rod, even under Source’s proposed construction. The original decision ruling that the case was frivolous and fining attorneys PCZL is reported here.

Source Vagabond and Pearl Cohen Zedek Latzer appealed the ruling.

The Appeal

On appeal, judge Cott determined that the sanctions were bases on two grounds:

“Source made frivolous legal claims in its submissions to the Court, in violation of Rule 11(b)(2); and Source failed to conduct an adequate investigation before filing this lawsuit, in violation of Rule 11(b)(3).”. He recommended Source’s counsel (i.e. Pearl Cohen Zedek Latzer pay $187,308.65 in partial attorney’s fees, but that Source not be sanctioned.

The logic, explained by the district court was “Given counsel’s sole responsibility, as a matter of law, for the violations of Rule 11(b)(2), and counsel’s additional responsibility for the failure to investigate under Rule 11(b)(3), I recommend that Yonay and Shuman be held responsible for any monetary sanction. I further recommend Yonay and Shuman’s law firm, Pearl Cohen Zedek Latzer LLP be held jointly and severally liable in accordance with Fed. R. Civ. P. 11(c)(1).

Hydropak successfully argued that it should receive legal fees for defending against te reconsideration motion, and the court concurred, raising the damages to $200,054.

The decision was appealed to the Court of Appeals of the Federal Circuit.

Court of Appeals of the Federal Circuit Ruling

In patent lawsuits, defending against baseless claims of infringement subjects the alleged infringer to undue costs, and this is precisely the scenario that Rule 11 contemplates.

The District Court found that Source had an obligation to demonstrate why they believed they had a reasonable chance of proving infringement, and that Source failed to show either literal infringement or infringement under the doctrine of equivalents. The issue revolved around the meaning of “slot being narrower than the diameter of the rod”. The district court dismissed Source’s construction stating, “an ‘analysis’ that adds words to the claim language [without support in the intrinsic evidence] in order to support a claim of infringement” does not follow “standard canons of claim construction.” Additionally, the surrounding claim language demonstrates that the “the slot,” “the rod, and “the portion of the container . . . folded over the rod” are distinct from each other. The claim language does not compare the size of the slot to the size of the rod together with the folded over container. Source had the ability to draft the claim that way but did not. It cannot correct that failure by adding words to otherwise unambiguous claim language. In other words, there is a limit to what one can argue a claim means.

Finally, Source argues that Hydrapak’s proposed construction “would render the entirety of claim 1 nonsensical.” This is a fascinating admission that not only does the scope of the claim as prosecuted by PCZL not include the product fabricated by Hydrapak, but that the claim is actually meaningless.

On Appeal, the Federal Circuit stated that “The district court properly determined that “claim construction is a function of the words of the claim not the ‘purpose’ of the invention,” and that Source’s construction “violates nearly every tenet of claim construction and amounts to a wholesale judicial rewriting of the claim.” Source was required to “perform an objective evaluation of the claim terms” to satisfy its obligation to conduct a reasonable pre-suit evaluation. Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1329 (Fed. Cir. 2011). By proposing a definition that ignores the canons of claim construction, Source did not meet that standard. The district court did not abuse its discretion in imposing Rule 11(b)(2) sanctions based upon Source’s frivolous claim construction arguments.

Regarding the doctrine of equivalents:

(“[N]either the attorney’s affidavit nor plaintiff’s ‘pre-suit analysis’ . . .[ever] mentioned, let alone analyzed, how Hydrapak’s product infringed Source’s patent under the doctrine of equivalents.”). Counsel was obligated to come forward with a showing of exactly why, prior to filing suit, they believed their claim of infringement under the doctrine of equivalents was reasonable. See View Eng’g, 208 F.3d at 986. Source did not comply with this requirement below. Under these circumstances, the district court did not abuse its discretion in finding a Rule 11 violation. The cost of $200,054 against Guy Yonay and against Pearl Cohen Zedek Latzer was affirmed.

Court of Appeals Federal Circuit, SOURCE VAGABOND SYSTEMS and Pearl Cohen Zedek Latzer LLP v. HYDRAPAK, INC., decided June 5, 2014

COMMENTS

I apologize to readers for being tardy in reporting this decision from June 2014. It has only recently come to my attention. Guy Yonay accused me of unfair reporting of the original decision and argued that the judge was clearly wrong, and Zev Pearl accused me of publishing lies. I think this decision, which may be found in full here appeal PCZL vindicates my reporting.

The court is correct that the attorneys are responsible for filing the frivolous law-suit. Why did this happen?

Well, the decision states that “Guy Yonay and Clyde Shuman are partners in the law firm Pearl Cohen Zedek Latzer LLP. Prior to the present action, Mr. Yonay prosecuted the ’276 patent application. In the underlying district court litigation, Mr. Yonay signed the original Complaint on behalf of Source, and Mr. Shuman signed the Amended Complaint.”

I would suggest that the first problem is that Yonay apparently prosecuted the claim before the patent office (and may have drafted the application) and then went on to litigate it. This is never good practice. Before litigating one should seek an independent opinion of the chances of prevailing. Yonay could not objectively review the claims he’d prosecuted. He appears to be confused between the purpose of the product and the claimed structure. With mechanical patents one cannot, by obtaining a patent for a specific device, prevent third parties from competing with devices having different structures that are well beyond the ambit of the claims, by arguing that they achieve the desired aim and are thus functional equivalents.

In general, it is ill-advised for the prosecutor of the patent to litigate it in court. Indeed, it is ill-advised for the prosecutor and litigator to belong to the same firm. At least on Appeal, Pearl Cohen took an external counsel, Jenks.

The managing partner of PCZL, Zev Pearl is not licensed to practice in the US. There is, however, a senior partner, Mark Cohen, who is US licensed. Both these gentlemen could and should have prevented the frivolous case being filed. Their failure to do so explains why the courts find the firm responsible and not just Yonay and Shuman.

In a newspaper article on trolls that originated in PCZL was published in the Jerusalem Post and also appears on the Pearl Cohen website, it is implied that only under new Obama legislation, can non-practicing entities be sued for costs in unsuccessful law suits. The implication is that prior to the proposed legislation trolls had nothing to lose by filing frivolous lawsuits and that practicing entities have nothing to lose as they are not trolls. This decision shows the error in this approach. Any entity, whether practicing or otherwise, must have reasonable grounds of validity and infringement to bring a case against a third-party to court. The courts have the authority to sanction the plaintiff and their legal counsel for filing frivolous cases. Pearl Cohen should have known that the interpretation they were giving to the claim was untenable. It was not infringed. The courts were therefore correct in fining PCZL.

 


Nespresso sues Espresso Club for using Clooney look-alike in advertisement

January 21, 2015

david siegal

Espresso Club aired an advertisement in December 2014 that uses a George Clooney look-alike actor called David Siegal. The actor leaves a shop selling coffee machines with a paper bag in hand.

Nespresso, who has an international campaign for their coffee capsules that features George Clooney sued to obtain a preliminary injunction against Espresso Club. The charges included well-known and egistered trademark infringement, unjust enrichment, encroachment, copyright infringement, passing off, interfering with fair trade and unreasonable behavior.

The judge, Magen Oltavia threw out the request, arguing that the chances of Nespresso eventually prevailing were slight. At worse, this was a strong hint and parody against the competitor with the intent of producing a more popular low brow competing product. There was neither copyright nor trademark infringement.

In the advertisement the graying actor wears a suit and sunglasses and makes purchases in a shop selling coffee machines, but during most of the advertisement, the words “The actor is not George Clooney” appear in the top left hand corner fo the screen.

Clooney is not a brand. Real people are not protected characters and are not copyright protected. None of Nespresso’s marks include a likeness to Clooney. The judge did not consider that the actor had even a resemblance to Clooney, a man in an white open necked shirt, suit and sunglasses would not necessarily be associated with Clooney and the words “the actor is not George Clooney” is sufficient to avoid any possibility of confusion. Clooney promotes different goods over time and the CEO of Nespresso in Israel concurred the brand is Nespresso and not Clooney.

The Judge accepted that the actor was intended to recall Clooney and was providing a broad hint parodying Nespresso’s campaign, but this was far from copyright infringement or trademark infringement. The defendant claimed to be parodying Nesspresso by offering a cheaper less elitist alternative where the machine is provided for free and one only buys the capsules. The advertising campaign was designed to promote a legitimate competing product.

The grounds of passing off and copyright infringement were also rejected. Judge Oltavia stressed that Clooney plays himself in the advertisement, not a character created by Nespresso and protectable under copyright.  Clooney would be unlikely to transfer rights in himself to Nespresso giving them lifetime +70 years rights to himself.

The advertisement was not based on a specific Nespresso advertisement. Using attractive looking people for product branding is standard practice in advertising and not the monopoly of Nespresso.

Nesspresso does not have rights in this case that override the right to free speech and creativity of Espresso Club.

Civil case: 451922-12-14 Nespresso vs. Espresso Club, before Judge Magen Oltavia, 19 Jan 2015 

COMMENTS

Selling machines cheaply or giving them away and then charging through the nose for consumerables such as ink or toner cartridges or coffee capsules is an established business model.

Courts do not necessarily enforce registered designs for the compatible cartridges as there is a retrofit clause that prevents machine manufacturers from forcing customers to purchase original replacement parts at any price. This is a matter of public policy. In general, Israel is pro-competition so this ruling is not surprising.

 


Nos

January 19, 2015

NOS

A Turkish company called GÜNEYSI IÇ VE DIS TICARET ANONIM SIRKETI filed an International Trademark Application as shown, for chemical preparations for medical purposes, chemico-pharmaceutical preparations, dietetic foods adapted for medical purposes, medical preparations for slimming purposes, food for babies, material for stopping teeth, dental wax; disinfectants; preparations for destroying noxious plants, materials for dressings, preparations for destroying vermin; fungicides, air freshening preparations, antiseptics – in class 5; Meat, fish, poultry and game; meat extracts; beans, preserved, soups, preparations for making bouillon, olives, preserved, milk and milk products, butter, edible oils and fats, preserved, frozen, dried and cooked fruits and vegetables, nuts, prepared, peanut butter, tahini (sesame seed paste), eggs and powdered eggs, non-medical foods use for supplementary purposes (including pollens, proteins, carbonate), potato chips in class 29; Coffee, cocoa, coffee substitutes, coffee or cocoa based beverages, chocolate based beverages, macaroni, ravioli, vermicelli, pastry and bakery products, desserts, honey, royal jelly, propolis (bee gum), condiments for foodstuff, yeasts, baking powder, natural substances for improving shape and color of bread and retarding its period of getting stale, all kinds of flour, semolina, corn starch, crystal sugar, cubed sugar, powdered sugar, tea, ice tea, confectionery, chocolates, biscuits, crackers; waffles, chewing gums, ice creams, edible ice, salt, grain (cereals) and products made from cereal, treacle in class 30 and Beers, preparations for making beer, mineral waters, spring waters, table water, soda waters, tonic waters, vegetable and fruit juices, their concentrations and extracts, beverages in class 32.

The mark received Israel Trademark Number 251385 and during the three-month period “Holley Performance Products, Inc” opposed the mark in Israel, and the Israel Patent Office informed the International Madrid Mechanism. Since Applicant did not respond to the Opposition, the mark has been canceled.

COMMENT

I suspect that with the mark filed for an enormous range of goods it is more than likely that the mark and Holley Performance could have hammered out a coexistence agreement.


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