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Cathy “Cat” Bennett began assisting lawyers with jury selection in 1972. The way Cat fell into this field is a story in and of itself. In 1972, she was working at a legal aid office writing a training manual. One day, several of the attorneys were complaining that the judge was not listening to their arguments. Cat volunteered to go to court with the attorneys to see if she could help. Cat was able to determine when the judge was responding to and rejecting arguments. She began telling the attorneys to either continue the argument, if she felt the judge was listening, or to change the topic, when she believed the judge was rejecting what the lawyers were saying. As a result of Cat’s assistance, the legal aid attorneys began winning a remarkable number of their hearings and bench trials. The word began to spread within the legal aid office of Cat’s remarkable ability to read the judge and accurately predict the most favorable arguments.
One day, one of the attorneys approached Cat and said, “I’ve heard about the success you’ve been having with the judges. I’ve got a jury trial coming up. Do you think you could do the same thing with the jury?” Cat responded that she didn’t know, but she would give it a try. Employing the same techniques, Cat began to identify the jurors who were most favorable and least favorable to her clients’ cases. From these humble beginnings, began the remarkable journey of Cathy E. Bennett & Associates.
Robert Hirschhorn of Cathy E. Bennett & Associates, Inc., is an attorney and a nationally recognized expert in jury and trial consultation. He is a co-author of Blue’s Guide to Jury Selection, which is currently available from Thompson-West Publishing. A jury consultant since 1985, Robert has selected juries that have returned more than $35 Billion in verdicts. Those cases include: Johnson & Johnson Talc ($5 Billion); VirnetX v. Apple ($502.6 Million); Hopper v. JP Morgan Chase ($8 Billion); Pinnacle Hip Implant Litigation ($1.041 Billion and $505 Million); Lexar v. Toshiba (breach of fiduciary duty; $461 Million) and Ernst v. Merck (1st Vioxx litigation; $253 Million). He has also assisted lawyers in many high-profile criminal cases including State of Florida v. William Kennedy Smith (sexual assault charges, not guilty verdict), State of Texas v. U.S. Senator Kay Bailey Hutchison (ethics charges, not-guilty verdict), and State of Texas v. Robert Durst (acquitted of murder charges). Mr. Hirschhorn has appeared on Good Morning America, MSNBC, Court TV, CNN, HLN, Dateline NBC, 48 Hours, Nightline, and many national radio programs. He lectures nationwide to lawyers and judges on the art of jury selection.
Jennifer Lapinski has been a jury and trial consultant since 1999, and has closely worked with attorneys on over 300 criminal and civil cases in both state and federal jurisdictions across the country. In addition to jury selection, Ms. Lapinski prepares juror questionnaires and voir dire questions, prepares juror profiles and conducts witness preparation. In over 250 cases, Ms. Lapinski has conducted Focus Groups, Mock Trials, Voir Dire Workshops, Opening Statement Workshops, Shadow Juries and Post-Verdict Interviews. Additionally, for the past several years Ms. Lapinski has assisted Robert Hirschhorn with the Focus Group portion of the State Bar of Texas’ Choosing and Courting a Jury program. Ms. Lapinski is also the chair of the Center for American and International Law’s Jury Selection & Communicating With Jurors – A Program for the Defense, and is a contributing author to the upcoming AAJ Trial Guides The Anatomy of a Personal Injury Lawsuit (Fourth Edition).

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The legal basis for the processing of data transmitted during sending an e-mail is Art. 6 para. 1 lit. f DSGVO. If the e-mail contact aims at the conclusion of a contract, then additional legal basis for the processing is Art. 6 exp. 1 lit. b DSGVO.
If registration serves the fulfilment of a contract to which the user is a party or the implementation of pre-contractual measures, the additional legal basis for the processing of the data is Art. 6 para. 1 lit. b DSGVO..
A registration of the user is necessary for the provision of certain contents and services on our website. The unique identification of the user is required to distinguish among different personal and public Shikenso Calendar. The E-mail address is required to notify the user before an upcoming event starts, if he has chosen the notification option.
A registration of the user is also necessary for the fulfilment of a contract with the user or for the implementation of pre-contractual measures.
The IP address is necessarily needed to provide location specific content to the user. The date and time of registration is used to measure the number of daily and monthly registrations. The username is combined with the public calendar profile and thus is a unique identifier for that profile. The E-mail address is needed for the notification service and for the login into shikenso.
The data will be deleted as soon as they are no longer necessary to achieve the purpose for which they were collected. This is the case for the data collected during the registration process if the registration on our website is cancelled or changed. In addition, this is the case for data collected during the registration process to fulfill a contract or to carry out pre-contractual measures if the data is no longer required for the execution of the contract. Even after conclusion of the contract, it may still be necessary to store personal data of the contractual partner to fulfil contractual or legal obligations.
If you send us your application documents electronically or by letter post, we will process your personal data as part of the selection process. In addition to your master data (e.g. name, address, contact and birth data), this also includes special categories of personal data (e.g. a photo showing ethnic origin, information about severely disabled persons, etc.).
This data is processed to correspond with you and to carry out the selection procedure.
The data will be processed upon receipt of the application documents and will be processed in accordance with Art. 6 para. 1 sentence 1 lit. b), Art. 9 para. 1 sentence 1 lit. b), Art. 88 DSGVO in conjunction with Art. 88 DSGVO. 26 BDSG Basic Data Protection Ordinance (DSGVO) for the purposes mentioned above for the appropriate processing of the application procedure.
Your personal information and application documents will be automatically deleted six months after notification of the rejection decision, unless you have consented to further storage in accordance with Art. 6 para. 1 sentence 1 lit. a) Art. 9 para. 2 lit. a) DSGVO or oppose deletion of other legitimate interests and thus processing in accordance with Art. 6 para. 1 sentence 1 lit. f), Art. 9 para. 1 lit. f) DSGVO is permissible. Such an interest exists in particular with a burden of proof with the assertion of requirements after the general equal treatment law (AGG).
The tracking measures listed below and used by us are carried out based on Art. 6 para. 1 sentence 1 f DSGVO. With the tracking measures used, we want to ensure that our website is designed to meet requirements and is continually optimized. On the other hand, we use the tracking measures to statistically record the use of our website and to evaluate it for the purpose of optimizing our offer. These interests are to be regarded as legitimate within the meaning of the aforementioned provision.
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You also have the right to complain to a data protection supervisory authority about our processing of your personal data in accordance with Art. 77 DSGVO. As a rule, you can contact the supervisory authority at your usual place of residence or workplace or at our company headquarters. The Hessian Data Protection Officer, Gustav-Stresemann-Ring 1, 65189 Wiesbaden, is the responsible supervisory authority at our company headquarters.
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If your personal data are processed based on legitimate interests pursuant to Art. 6 para. 1 sentence 1 lit. f) DSGVO, you have the right to object to the processing of your personal data pursuant to Art. 21 DSGVO, provided that there are reasons for this arising from your particular situation or the objection to direct advertising.
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All personal data stored in the course of contacting us will be deleted in this case - subject to any storage obligations or legal bases.

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We demonstrate by means of numerical simulations of the generalized Nonlinear Schrödinger Equation that the variation of the diameter of a tapered fiber along the fiber axis can be used as a new degree of freedom to tailor the spectrum generated by ultrashort laser pulses. We show that, apart from the cross-section geometry of the fiber and the materials used for the core, cladding, and surrounding medium, the diameter profile along the fiber axis crucially influences the soliton dynamics, the temporal and spectral evolution as well as the generation of a supercontinuum. As an example, we have investigated a few centimeters long conical waists, which reveal large differences of the output spectra depending on the incoupling direction. For a decreasing fiber diameter, we find that, keeping the pulse energy constant, a lower input peak power may generate a broader supercontinuum. We attribute this result to the dynamics of higher-order solitons. A comparison of the simulated spectra to experimentally measured ones shows excellent agreement.
S. Coen, A. H. L. Chau, R. Leonhardt, J. D. Harvey, J. C. Knight, W. J. Wadsworth, and P. St. J. Russell, “Supercontinuum generation via stimulated Raman scattering and parametric four-wave-mixing in photonic crystal fibers,” J. Opt. Soc. Am. B 19, 753–764 (2002).
J. Teipel, K. Franke, D. Türke, F. Warken, D. Meiser, M. Leuschner, and H. Giessen, “Characteristics of supercontinuum generation in tapered fibers using femtosecond laser pulses,” Appl. Phys. B 77, 245–251 (2003).
G. Genty, M. Lehtonen, M. Kaivola, and H. Ludvigsen, “Enhanced bandwidth of supercontinuum generated in microstructured fibers,” Opt. Express 12, 3471–3480 (2004).
J. N. Kutz, C. Lynga, and B. J. Eggleton, “Enhanced supercontinuum generation through dispersion-management,” Opt. Express 13, 3989–3998 (2005).
F. Hoos, S. Pricking, and H. Giessen, “Compact portable 20 MHz solid-state femtosecond whitelight-laser,” Opt. Express 14, 10913–10920 (2006).
D.-I. Yeom, J. A. Bolger, G. D. Marshall, D. R. Austin, B. T. Kuhlmey, M. J. Withford, C. Martijn de Sterke, and B. J. Eggleton, “Tunable spectral enhancement of fiber supercontinuum,” Opt. Lett. 32, 1644–1646 (2007).
G. Genty, P. Kinsler, B. Kibler, and J. M. Dudley, “Nonlinear envelope equation modeling of sub-cycle dynamics and harmonic generation in nonlinear waveguides,” Opt. Express 15, 5382–5387 (2007).
D. Mogilevtsev, T. A. Birks, and P. St. J. Russell, “Group-velocity dispersion in photonic crystal fibers,” Opt. Lett. 23, 1662–1664 (1998).
G. P. Agrawal, Nonlinear fiber optics (Academic Press, San Diego, 1995).
L. F. Mollenauer, R. H. Stolen, and J. P. Gordon, “Experimental Observation of Picosecond Pulse Narrowing and Solitons in Optical Fibers,” Phys. Rev. Lett. 45, 1095–1098 (1980).
G. Genty, S. Coen, and J. M. Dudley, “Fiber supercontinuum sources (Invited),” J. Opt. Soc. Am. B 24, 1771–1785 (2007).
P. St. J. Russell, “Photonic Crystal Fibers,” Science 17, 358–362 (2003).
S. Pricking and H. Giessen, “Tapering fibers with complex shape,” Opt. Express 18, 3426–3437 (2010).
R. Zhang, X. Zhang, D. Meiser, and H. Giessen, “Mode and group velocity dispersion evolution in the tapered region of a single-mode tapered fiber,” Opt. Express 12, 5840–5849 (2004).
S. V. Chernikov, E. M. Dianov, D. J. Richardson, and D. N. Payne, “Soliton pulse compression in dispersion-decreasing fiber,” Opt. Lett. 18, 476–478 (1993).
F. Lu, Y. Deng, and W. H. Knox, “Generation of broadband femtosecond visible pulses in dispersion-micromanaged holey fibers,” Opt. Lett. 30, 1566–1568 (2005).
A. Kudlinski, A. K. George, J. C. Knight, J. C. Travers, A. B. Rulkov, S. V. Popov, and J. R. Taylor “Zero-dispersion wavelength decreasing photonic crystal fibers for ultraviolet-extended supercontinuum generation,” Opt. Express 14, 5715–5722 (2006).
J. C. Travers, J. M. Stone, A. B. Rulkov, B. A. Cumberland, A. K. George, S. V. Popov, J. C. Knight, and J. R. Taylor “Optical pulse compression in dispersion decreasing photonic crystal fiber,” Opt. Express 15, 13203–13211 (2007).
A. Kudlinski and A. Mussot, “Visible cw-pumped supercontinuum,” Opt. Lett. 33, 2407–2409 (2008).
J. C. Travers, S. V. Popov, and J. R. Taylor, “Extended blue supercontinuum generation in cascaded holey fibers,” Opt. Lett. 30, 3132–3134 (2005).
E. C. Mӓgi, P. Steinvurzel, and B. J. Eggleton, “Tapered photonic crystal fibers,” Opt. Express 12, 776–784 (2004).
W. J. Wadsworth, A. Witkowska, S. G. Leon-Saval, and T. A. Birks, “Hole inflation and tapering of stock photonic crystal fibres,” Opt. Express 13, 6541–6549 (2005).
C.-M. Chen and P. L. Kelley, “Nonlinear pulse compression in optical fibers: Scaling laws and numerical analysis,” J. Opt. Soc. Am. B 19, 1961–1967 (2002).
N. Akhmediev and M. Karlsson, “Cherenkov radiation emitted by solitons in optical fibers,” Phys. Rev. A 51, 2602–2607 (1995).
A. V. Yulin, D. V. Skryabin, and P. St. J. Russell, “Four-wave mixing of linear waves and solitons in fibers with higher-order dispersion,” Opt. Lett. 29, 2411–2413 (2004).
J. R. Taylor, Optical solitons: Theory and Experiment (Cambridge University Press, Cambridge, 2005).
A. V. Gorbach and D. V. Skryabin, “Light trapping in gravity-like potentials and expansion of supercontinuum spectra in photonic-crystal fibres,” Nat. Photonics 1, 653–657 (2007).
S. Linden, H. Giessen, and J. Kuhl, “XFROG - A New Method for Amplitude and Phase Characterization of Weak Ultrashort Pulses,” Phys. Status Solidi B 206, 119–124 (1999).
A. Konyukhov, L. Melnikov, and Y. Mazhirina, “Dispersive wave generation in microstructured fiber with periodically modulated diameter,” Proc. SPIE 6165, 616508 (2006).
Fig. 1. We investigate the propagation of ultrafast laser pulses in different non-homogeneous fiber waists. Our simulations are able to deliver the temporal and spectral evolution of the pulses along the fiber axis as well as XFROG traces  at desired propagation distances.
Fig. 2. (a) Propagation distance of maximal solitonic pulse compression z MPC relative to the soliton period zs in dependence of the soliton number. The dashed line shows the normalized fission length, calculated by the theoretical approximation L fis/zs = √2(πN)−1. (b) Nonlinear parameter γ in dependence of diameter and wavelength. The inset shows γ for a constant λ = 773 nm.
Fig. 3. (a), (c), (e): Increasing cone from 0.9 µm to 2.7 µm over a distance of 60 mm. (b), (d), (f): Decreasing cone from 2.7 µm to 0.9 µm over a distance of 60 mm. (a), (b): Resulting output spectra (logarithmic scale). (c), (d): Position of the maximal pulse compression z MPC and the corresponding fiber diameter in dependence of the input peak power P 0. (e), (f): Dispersion parameter D and nonlinear parameter γ at the longitudinal position of maximum pulse compression z MPC. The input pulse energy is kept constant at 1 nJ, the central wavelength is 773 nm, the chirp parameter C equals 0.
Fig. 4. (a) Temporal (logarithmic scale) and (b) spectral (logarithmic scale) evolution of a femtosecond pulse in a increasing waist (the same as in Fig. 3). The pulse energy is 1 nJ, P 0 = 5 kW, T 0 = 100 fs and λ 0 = 773 nm. (c) Output XFROG trace . (d) Group velocity relative to c in dependence of diameter and wavelength. The solid line shows the path of the dominant soliton, the dashed line the group-velocity-matched path on the short wavelength side. (e) Group velocity dispersion in dependence of diameter and wavelength. (f) Phasematching condition for the NSR. The wavelength of the decaying soliton is 773 nm.
Fig. 5. (a) Temporal (linear scale) and (b) spectral (logarithmic scale) evolution of a femtosecond pulse in a decreasing waist (the same as in Fig. 3). The pulse energy is 1 nJ, P 0 = 5 kW, T 0 = 100 fs and λ 0 = 773 nm. (c) Output XFROG trace . (d) Group velocity relative to c in dependence of diameter and wavelength. The solid line shows the path of the dominant soliton, the dashed line the group-velocity-matched path on the short wavelength side, here nearly matched to the wavelength of the NSR. Note the reversed diameter axis to match the fiber profile.
Fig. 6. Temporal (left) and spectral (middle) evolution of a second-order soliton in a fiber with a step-like diameter profile (d 1 = 2 µm, d 2 = 3 µm). Right: Simulated XFROG trace of the output pulse. The letters in the circles denote the pulse features belonging together: (a) NSR of the first decay, (b) fundamental soliton, later turning into a dispersive wave, (c) dominant soliton, changing its order as described in the text, (d) NSR of the second decay, (e) fundamental soliton generated by the second decay. All in a logarithmic scale.
Fig. 7. Normalized output spectra: (a) Sinusoidal waist, d min = 1.3 µm, d max = 2.7 µm, period 3.3 mm, 24 periods; P in = 375 mW, P out = 205 mW. (b) Increasing diameter profile from 1.7 µm to 3.0 µm over 20 mm, P in = 380 mW, P out = 250 mW. (c) Same as (b) but as decreasing profile; P in = 395 mW, P out = 220 mW. (d) Increasing diameter profile from 0.9 µm to 2.3 µm over 25 mm, P in = 216 mW, P out = 100 mW. (e) Same as (d) but as decreasing profile; P in = 191 mW, P out = 103 mW.
(1) ∂ A ( z , T ) ∂ z = D ̂ A ( z , T ) + i γ ( 1 + i ω 0 ∂ ∂ T ) ( A ( z , T ) ∫ − ∞ + ∞ R ( t ′ ) ∣ A ( z , T − t ′ ) ∣ 2 d t ′ ) .

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IN RE: Scott Lee EGEBJERG May 29, 2009 No. 08-55301.
TIBBETTS v. KULONGOSKI May 29, 2009 No. 07-36067.
UNITED STATES v. LOMELI MENCES May 28, 2009 No. 07-50452.
UNITED STATES v. MEDINA VILLA May 28, 2009 No. 07-50396.
NATIONAL ASSOCIATION OF OPTOMETRISTS OPTICIANS LENSCRAFTERS INC v. BROWN May 28, 2009 No. 07-15050.
IN RE: COMPLAINT OF JUDICIAL MISCONDUCT. May 27, 2009 Nos. 08-90066, 08-90067, 08-90068, 08-90069, 08-90070, 08-90071, 08-90072, 08-90073, 08-90074, 08-90075, 08-90076, 08-90077, 08-90078, 08-90079, 08-90080, 08-90081, 08-90179, 08-90187, 08-90188, 08-90243, 08-90244, 09-90046, 09-90047, 09-90050.
RAMOS BARRIOS v. HOLDER May 27, 2009 No. 06-74983.
XILINX INC v. COMMISSIONER OF INTERNAL REVENUE May 27, 2009 Nos. 06-74246, 06-74269.
ESCOBAR v. HOLDER May 27, 2009 Nos. 07-72843, 08-71777.
ROBLETO PASTORA v. HOLDER May 27, 2009 Nos. 07-71492, 07-72091.
UNITED STATES v. JUVENILE FEMALE May 27, 2009 No. 07–50549.
UNITED STATES v. MENDOZA ZARAGOZA May 27, 2009 No. 08-30130.
ROBLETO PASTORA v. HOLDER May 27, 2009 Nos. 07-71492, 07-72091.
KNAPPENBERGER v. CITY OF PHOENIX May 26, 2009 No. 07-15774.
UNITED STATES v. JEFFERSON May 26, 2009 No. 08-30067.
BROWNING v. UNITED STATES May 22, 2009 No. 07-35557.
UNITED STATES v. PRICE May 21, 2009 Nos. 05-30323, 06-30157.
EVANSTON INSURANCE COMPANY v. OEA INC May 21, 2009 No. 07-15316.
Clayton R. POORE; Dorothy Ann Teske; Sharon Riggs; Dennis Hawke; Merrie Lou Hawke; John Anderson; Barbara Anderson; Robert Elledge; Mary Elledge; Robert Poschwatta, Marie Poschwatta; James Gundiff; Marie Gundiff; Jerry May 21, 2009 No. 05-36060.
UNITED STATES v. HERON SALINAS May 20, 2009 No. 08-50276.
UNITED STATES v. MANESS May 19, 2009 Nos. 06-30607, 07-30035.
BARRER v. CHASE BANK USA May 19, 2009 No. 07-35414.
TUCSON HERPETOLOGICAL SOCIETY v. SALAZAR May 18, 2009 No. 07-16641.
NICHOLS v. DANCER May 18, 2009 No. 07-15654.
BYRD v. MARICOPA COUNTY SHERIFF DEPARTMENT May 18, 2009 No. 07-16640.
UNITED STATES v. TUYET THI BACH NGUYEN May 15, 2009 No. 07-30197.
BYRD v. LEWIS May 15, 2009 No. 06-15977.
UNITED STATES v. RAYGOSA ESPARZA May 15, 2009 No. 07-50573.
ELLIOTT v. WHITE MOUNTAIN APACHE TRIBAL COURT May 14, 2009 No. 07-15041.
UNITED STATES MEYER v. HORIZON HEALTH CORPORATION May 14, 2009 No. 06-17084.
MORRISON v. COMMISSIONER OF INTERNAL REVENUE May 13, 2009 No. 06-75332.
CATZ v. CHALKER May 13, 2009 No. 08-16468.
BREZILIEN v. HOLDER May 12, 2009 No. 06-73693.
KEARNEY v. FOLEY LARDNER LLP May 12, 2009 No. 07-55566.
NEGRETE v. HOLDER May 12, 2009 No. 08-18843.
KEARNEY v. FOLEY LARDNER LLP May 12, 2009 No. 07-55566.
OJO v. FARMERS GROUP INC May 12, 2009 No. 06-55522.
UNITED STATES v. ALDERMAN May 12, 2009 No. 07-30186.
Lilian S. ILETO, an individual and mother to Joseph S. Ileto, deceased; Joshua Stepakoff, a minor, by his parents Loren Lieb and Alan B. Stepakoff; Mindy Gale Finkelstein, a minor, by her parents David and Donna Finkelstein; Benjamin Kadish, a mi May 11, 2009 Nos. 06-56872, 07-15403, 07-15404.
MAZDA MOTORS OF AMERICA INC v. COUGAR ACE May 8, 2009 No. 07-35787.
HATFIELD v. HALIFAX PLC HBOS PLC May 8, 2009 No. 07-55790.
BARNES v. YAHOO INC May 7, 2009 No. 05-36189.
UNITED STATES v. OSAZUWA May 7, 2009 No. 08-50244.
SISKIYOU REGIONAL EDUCATION PROJECT v. UNITED STATES FOREST SERVICE May 7, 2009 Nos. 06-35332, 06-35373, 06-35381.
MILLENDER v. COUNTY OF LOS ANGELES May 6, 2009 No. 07-55518.
UNITED STATES v. IRIBE May 6, 2009 No. 07-50432.
IN RE: CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE May 6, 2009 No. 07-56720.
ESTE v. BAYER CORPORATION 50 May 5, 2009 No. 07-56577.
KING v. RYAN May 5, 2009 No. 06-55858.
LABOR COMMUNITY STRATEGY CENTER v. LOS AN May 5, 2009 No. 06-56866.
LORBER INDUSTRIES OF CALIFORNIA v. Lorber Industries of California; Official Committee of Unsecured Creditors, Appellees. In re Lorber Industries of California, Debtor, Lorber Industrie May 4, 2009 Nos. 07-56227, 07-56309.
UNITED STATES v. KAPP May 4, 2009 No. 07-56408.
DOYLE v. CITY OF MEDFORD May 4, 2009 No. 07-35753.
BOVA v. CITY OF MEDFORD May 4, 2009 No. 08-35091.
IN RE: Pateel BOYAJIAN May 1, 2009 Nos. 07-55713, 07-55716.
ALASKA v. EEOC May 1, 2009 No. 07-70174.
DYER v. CENEX HARVEST STATES COOPERATIVE May 1, 2009 No. 07-73549.

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JAMES B. RENDLE CO. vs. CONLEY & DAGGETT, INC.
Present: FIELD, C.J., QUA, DOLAN, & COX, JJ.
In an action by a contractor upon an account annexed, the plaintiff, upon proof of the performance of work for the defendant under a contract providing for payment at a fixed hourly rate, was not limited, either on the evidence or "upon the pleadings," to recovery "for only the fair market value" of the work.
CONTRACT. Writ in the District Court of Southern Essex dated July 24, 1941.
The action was heard by Kiely, J.
R. E. Johnston, for the defendant.
M. R. Flynn & J. F. Maher, for the plaintiff, submitted a brief.
FIELD, C.J. This action of contract on an account annexed for work and materials was brought in a District Court. The account included items for "Crane" for enumerated hours on various dates at $12 an hour, items for labor of men, and some miscellaneous items. The trial judge denied several requests for rulings made by the defendant, made specific findings of fact and found for the plaintiff. He made a report stating that the "defendant claiming to be aggrieved by the denial of its requests for rulings and the refusal of the court to rule as requested, and by the court's findings, I hereby report the same to the Appellate Division for determination." The report was dismissed by the Appellate Division and the defendant appealed to this court. A finding of fact is not a proper subject of a report. Reid v. Doherty, 273 Mass. 388, 389-390. Lender v. London, 286 Mass. 45, 47. Stowell v. H. P. Hood & Sons, Inc. 288 Mass. 555. Sreda v. Kessel, 310 Mass. 588, 589. The findings of fact cannot be reversed on this appeal. McKenna v. Andreassi, 292 Mass. 213, 215.
All six of the defendant's requests for rulings were denied, of which two (requests numbered 5 and 6) were waived. Requested ruling numbered 1 was as follows: "That upon all the evidence in this case the plaintiff is entitled to recover for only the fair market value for the use of the crane and the work and labor of the operator and oiler of the crane." Requested ruling numbered 2 was the same except for the addition at the end thereof of the words "and only for when the crane was in operation in digging." Requested ruling numbered 3 was the same as requested ruling numbered 1, and requested ruling numbered 4 was the same as requested ruling numbered 2, except that in each instance the words "upon the pleadings" were substituted for the words "upon all the evidence." There was no error in the denial of these requests.
The evidence was conflicting and need not be recited in detail. There was evidence, however, that the defendant employed the plaintiff to dig or redig an "excavation" using a crane, that the parties agreed that "the total charge . . . for digging would be at the rate of $12.00 per hour," that is, evidence that there was a contract for a fixed price per hour, and there was evidence that "all of the work and materials claimed by the plaintiff in this action were performed and used." On the other hand, it does not appear that there was any agreement as to the length of time in which the work was to be performed or as to the total amount of the charge to be made therefor. And there was evidence tending to show that the plaintiff spent an unnecessarily long time in doing the work.
numbered 1 and numbered 2 called for such rulings and these rulings could not rightly have been given.
The defendant relies primarily upon a statement in Beverly Hospital v. Early, 292 Mass. 201, 203, an action on an account annexed, that "the issue is, What is the service worth? The quality as well as the quantity of the service is open as a part of the plaintiff's case." This statement of the issue is not applicable where, as could have been found here, there was a contract for a fixed price. It was carefully pointed out in that case that the "bill of exceptions discloses no contract for a fixed price." Page 202. See page 204. See also Sayles v. Quinn, 196 Mass. 492. It is unnecessary to consider to what extent the statement is applicable to elements of the plaintiff's case other than the fixed price per hour, such, for example, as the length of time for which recovery could be had at such fixed price. But it cannot be applied to preclude the plaintiff from recovery upon the basis of a fixed price per hour if a contract for such a fixed price is shown, and the requested rulings, if given, would have had that effect.
Requests for rulings numbered 3 and 4 were rightly denied for like reasons. There is nothing in the nature of an action on an account annexed to preclude recovery in such an action for work performed under a contract for a fixed price. Egan v. Massachusetts Bonding & Ins. Co. 266 Mass. 270, 273, and cases cited. No question other than the propriety of the denial of the requests for rulings is presented by the report.

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In his affirmation In support of Petitioner’s petition, Petitioner’s counsel points out that 28 RCNY §3-18 establishes the procedure to terminate a tenant’s lease rights. Petitioner’s counsel further argues that lease termination procedures differ from family rights succession procedures because, In a lease termination proceeding, there must be a showing of the tenant’s fault and HPD has the burden of proof while, in a family succession rights proceeding, the tenant has the burden of proof and fault Is not an issue.
The HPD has answered the petition alleging that Petitioner has no valid claim for family succession rights or any other valid lease rights to the Apartment HPD further alleges, without elaboration, that “28 RCNY §3-02 governs petitioner’s application for succession rights and §3-18 Is not applicable.” (HPD’s Answer, Paragraph 150). Additionally, HPD argues that the instant CPLR Article 78 proceeding is untimely because HPD mailed a copy of Its decision In the family succession rights proceeding to Petitioner on October 15,2004 and he did not commence the Instant proceeding until May 10,2005.
On the return date of the petition, Kent Village appeared and orally argued against the petition but has failed to submit an answer to the petition and must, therefore, be deemed in default.
In reply to HPD’s answer, Petitioner’s attorney argues HPD has failed to address the Issue of whether a family succession rights proceeding was appropriate under the circumstances of the instant case, Petitioner’s attorney contends that a proceeding asserting family succession rights occurs before a lease Is Issued In the name of a prospective tenant and that there Is no legal authority for HPD to affirmatively Institute and prosecute such proceedings In order to conduct an after-the fact review of the propriety of the Issuance of an outstanding lease. Instead, he argues that, according to the Rules of the City of New York, the proper procedure to challenge a tenant’s rights pursuant to an outstanding lease Is a lease termination proceeding pursuant to 28 RCNY §3-18. Finally, Petitioner’s attorney argues that the Instant Article 78 proceeding Is timely because It was filed within four months from the date that Petitioner alleges he first received notice of HPD’s final administrative determination against him and, In spite of HDP’s allegation that It mailed a copy of the determination to Petitioner substantially earlier, there has been no evidence to contradict Petitioner’s allegation as to when and how he received notice of the determination.
There is no dispute between the parties as to the underlying facts Involved In the Instant matter.
At about the time they were married, Petitioner and his wife were issued a lease for and moved Into a one-bedroom apartment In the publicly subsidized housing complex managed by Kent Village. HPD has not challenged the propriety of the Issuance of that lease. As the Petitioner began having children, they applied for and were added to the Internal waiting list for a two-bedroom apartment in the complex. In or around 1996, the Petitioner were approved for an internal transfer to a two-bedroom apartment in the complex. At the same time, another family In the complex applied for an Internal transfer from a three-bedroom apartment to a two-bedroom apartment Petitioner alleges that at the direction and with the knowledge and consent of Kent Village, his family and the other family switched apartments. Although there is no evidence to Indicate who orchestrated the apartment swap, Kent Village began Issuing leases to the Apartment In the name of Petitioner as Co-tenant with the head of the family that had previously lived In the Apartment Petitioner was aware that this was transpiring because Petitioner signed, Inter alia, leases which also Included the signature of the head of the other family and listed both family heads as Co-Tenants, Since Kent Village prepared the leases and other paperwork, Kent Village was also aware that this was transpiring.
In or around 1998, HPD conducted an application audit and a re-certification audit of Kent Village’s property management records. In an application audit, HPD reviews the paperwork that relates to applications for occupancy, transfer or successor tenancy. In a re-certification audit, HPD reviews the paperwork that relates to current occupants’ annual re-certifications of family composition and financial resources In’ connection with the occupant’s continued eligibility for housing subsidies. During the course of its audits, HPD discovered numerous discrepancies In Kent Village’s records. Among the discrepancies was the fact that the records for the Apartment (Including the 1997 and 1998 lease renewals, family income certifications and family composition certifications as shown in Exhibits P and Q to HPD’s answer herein) Indicated a change in the head of the household (from the name of the head of the family previously occupying the Apartment to that Individual and Petitioner) yet no application for the change had been submitted to HPD (as required by regulations). Furthermore, the record before the court indicates that there were no documents In Kent Village’s file to Justify the change as a transfer based upon any waiting list or as a family member’s succession to the lease rights of a prior lessee of the Apartment.
By letter dated June 23,1998, HPD advised Kent Village that the results of HPD’s audit of Kent Village’s records Indicated; “…that the housing company has permitted inappropriate succession practices for a number of years.” and requested that Kent Village submit certain specific documents to HPD concerning certain apartments Identified In HPD’s audits including the Apartment involved in this matter.
In response to HPD’s request and apparently without any application or request by Petitioner, Kent Village’s managing agent sent Petitioner a form letter dated June 29,1998 advising Petitioner that he was; â “…currently occupying an apartment In violation of the Rules And Regulations Governing City-Aided Limited Profit Housing Companies.” and that Petitioner’s file contained Insufficient Information for Kent Village; “…to approve your tenancy and forward its approval to the Department of Housing Preservation and Development for their approval In compliance with Section 3-02(p)(8) of the rules and regulations.” Although the form letter advises Petitioner that he may appeal the “determination” to HPD within thirty calendar days of Its receipt, the letter contains no Information that would provide any notice of the substance of the alleged violation of the applicable rules and regulations nor any explanation of what rule Furchter had purportedly violated or any opportunity or time period to cure the alleged violation.
By letter dated July 2,1998, Kent Village’s managing agent notified HPD that; “[a]t that present time, all known apartments that may be In violation of the succession rules have been notified by the housing company as per my letter to you dated 6/29/98.” HPD was listed as receiving a copy of Kent Village’s June 29, 1998 letter to Petitioner. However, the record contains no letter dated June 29,1998 addressed directly to HPD.
HPD has offered an affidavit of Its hearing officer and another employee who allege that they mailed the above decision to Petitioner on October 15,2004 together with 26 other decisions they mailed out on that date. However, Petitioner alleges that he did not receive the decision or any notice thereof until he received a notice of the termination of his tenancy dated February 18,2005 which had a copy of the decision attached to It. Thus, HPD has offered no evidence contradicting Petitioner’s statement concerning the date of his receipt of the decision.
First, addressing the issue of the statute of limitations, it Is well settled (and HPD Itself concedes) that its determination did not become binding upon Petitioner until it had an impact upon him and the; “…petitioner was negatively Impacted when he received respondent’s decision,…”. Thus, the Issue becomes the timing of Petitioner’s receipt of the determination not the date of Its mailing.
Where, as here, the proof exhibits an office practice and procedure followed by the insurers in the regular course of their business, which shows that the notices of cancellation have been duly addressed and mailed, a presumption arises that those notices have been received by the insureds. Denial of receipt by the Insureds, standing alone, Is insufficient to rebut the presumption. In addition to a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed. We would hasten to add, however, that In order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a notice of cancellation Is always properly addressed and malled.
The proof submitted to this court by HPD In the instant matter Is not sufficient to establish the presumption set forth In Nassau. The affidavits of Ms Lippa and Ms. Falcon do not demonstrate an office practice established and followed by HPD In the regular course of Its business. Instead, they discuss what two Individuals did on one specific day in response to a perceived need to mall out 27 decisions on that day, The affidavits offer no basis for the court to conclude that the conduct of those two Individuals conformed to any established procedure whatsoever.
Based upon the foregoing, the only evidence presented to the court to establish when Petitioner received the determination Is Furchter’s acknowledgment that he received It on February 18,2005. “The burden rests on the party seeking to assert the statute of limitations as a defense to establish that its decision provided notice more than four months before the proceeding was commenced. Since HPD has failed to meet its burden, the instant Article 78 proceeding must be considered timely.
The entire process for obtaining family succession rights as set forth in 28 RCNY§3-02 is prospective and initiated by a tenant/cooperator’s family member at the time that the tenant/cooperator either leaves the. apartment or dies. The process contemplates that the family member may continue to use and occupy the apartment which Is the subject of the request while the request Is pending (provided that they continue to pay the appropriate charges). There Is no provision, however, for the issuance of a new lease naming the requesting family member as the tenant/cooperator until the application process (including any appeal provided for In the event the request Is denied) becomes final, The burdens of prosecuting the proceeding and presenting proof are upon the family member claiming the rights. The regulations contain no provisions for HPD or the housing company to Institute or prosecute proceedings concerning family succession rights pursuant to 28 RCNY §3-02(p).
In contrast, once a lease has been Issued, 28 RCNY §3-18 contains regulations setting forth appropriate procedures for lease terminations or non-renewals. The rules, Inter alia, provide for the housing company to commence the proceeding and contain provisions for an administrative hearing from which there is no further administrative appeal. Instead, the rules specifically state that the administrative determination Is subject to direct review In a CPLR Article 78 proceeding. Furthermore, 28 RCNY §3-18(f) states;”… It Is the express intention of HPD that no other section of these rules Is applicable.” Therefore, the proper proceeding to deal with the circumstances of the Instant matter, le; an allegedly Improper occupancy based upon an existing but allegedly Invalid lease, Is the commencement of lease termination or non-renewal proceedings pursuant to 28 RCNY §3-18.
In the Instant matter, HPD has attempted to create a proceeding not established by Its rules to address Petitioner’s alleged violations of the Mitchell-Lama rules. HPD may be correct In its premise that Petitioner’s occupancy of the Apartment Is In violation of the rules and his lease void because he has not compiled with appropriate transfer procedures and Is not entitled to family succession rights. Moreover, Petitioner may, by virtue of his actions, have subjected himself and his family to such sanctions as liability for the full market value of the occupancy of the Apartment (28 RCNY§3-18[h]) and removal of his name from any waiting list he may have properly been on (28 RCNY § 3-02 [h] ). However, none of that Justifies HPD inappropriate use of a family succession rights proceeding to remove Petitioner from the Apartment. The rules of an administrative agency, duly promulgated are binding upon the agency as well as any other person who might be affected. Since the process undertaken by HPD In the Instant matter is In violation of HPD own rules, the determination reached by HPD herein must be set aside.
Accordingly, it is ordered that the Instant petition pursuant to Article 78 of the CPLR Is granted to the limited extent that determination of HPD dated October 14,2002 In the instant matter Is hereby annulled and the matter Is remanded to HPD for further proceedings pursuant to the rules and regulations applicable to the termination’ and non-renewal of publicly subsidized housing leases.
If you think your legal right has been violated, contact Stephen Bilkis and Associates for help. Their experienced lawyers can help you find the right legal solution to your problem involving family related matters. They have offices to serve you throughout the New York area, Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County.

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Is the USPTO a "Rubber Stamp"? Errr, Not Quite . . .
Mark Lemley (Stanford) and Bhaven Sampat (Columbia) have released a draft copy of a recent study entitled "Is the Patent Office a Rubber Stamp?" The research was partly inspired by earlier studies (Quillen & Webster, 2002) that claimed that as many as 97% of all applications are eventually granted as patents. While these numbers have since been refuted, criticism of the PTO's perceived laxness during examination abounds, despite the (surprising?) fact that no one actually knows what percentage of patent applications actually issue as patents.
However, because of recent changes in the law regarding publication and PTO administrative procedure, Lemley and Sampat were able, for the first time, to track what happens to the vast majority of patent applications during prosecution. Significantly, they also had access for the first time to patent applications that are abandoned without a continuation.
We find that the PTO rejects a surprisingly high percentage of patents. While more than two-thirds of all applications result in at least one patent, a significant number of applications are rejected and then finally abandoned by the applicant. We also find that the likelihood of obtaining a patent varies significantly by industry in surprising ways. For example, patents are much more likely to be granted in the chemical and pharmaceutical industries than in software and computer fields, despite the fact that most of the complaints about bad patents show up in the IT industries.
[D]espite a variety of reforms that might be thought to reduce the use and abuse of continuation applications, we find a high use of continuation applications of various types. The extent and nature of the use casts significant light on the purposes of continuation applications, suggesting that different industries use continuations for different purposes. Even given the existence of a new and quicker procedure for continuing to fight with the examiner, many applicants persist in using the older continuation procedure in order to delay issuance of their patents or because they are seeking to construct a multi-patent fence.
Currently, the PTO claims the allowance rate historically has been about 66%, which dropped to 54% recently. However, this number doesn't account for continuations. Under Lemley's and Sampat's analysis, parent and child applications were separately analyzed, and it was found that, when continuation applications are taken into account, the PTO has a grant "range" between 68.4% and 78.1%.
Not surprisingly, the first reaction a patent examiner has to an application is a non-final rejection - 86.5% of the PTO’s first office actions are non-final rejections. Only a tiny percentage (0.04%) began with final rejections, and 13.5% granted patents on the first office action without any argument or negotiation.
After a final rejection, patents are much more likely to be rejected if the applicant won’t amend (13.6% abandoned if the applicant amended versus 50.0% abandoned if they didn’t amend). Nevertheless, more than half of applications that received a final rejection have ultimately resulted in a patent, and another 20% are still pending.
Regarding software patents, about 13 percent of the applications in the study's sample were considered "software." The odds that a software patent is finally abandoned are virtually the same as those for a non-software patent – 23.7% of software patents, and 24.7% of non-software patents. But strikingly, grant rates in software are lower than overall grant rates: 51 percent versus 69 percent.
While few should be surprised at the existence of industry-specific differences in patent grants, many people should be surprised – as indeed we are – at which industries have the highest grant rates. The received wisdom is that the problem of bad patents "rubber-stamped" by the PTO is largely confined to the IT industries. In fact, however, what we find is rather more complex. IT is hardly monolithic, and indeed includes the art units with both the highest and the lowest grant rates. The industry in which the grant rate is lowest is the computer industry, the very one in which many people would have said bad patents were most common. Similarly, the PTO rejects the highest share of applications in the field of business methods, from which a disproportionate number of complaints about the patent system arise.
While the study is in draft form, you can bet that this will be an oft-cited paper in the ongoing patent/PTO reform debate.
To view the study, click here (link).
(3) Restrictions on "new" arguments made in the appeal - "each rejection for which review is sought shall be separately argued under a separate heading,"
(5) Sanctions - a sanction may be imposed against an appellant for misconduct, including: failure to comply with an order entered in the appeal or an applicable rule, advancing or maintaining a "misleading or frivolous request for relief or argument and engaging in dilatory tactics."
The Board is currently experiencing a large increase in the number of ex parte appeals. In FY 2006, the Board received 3,349 ex parte appeals. In FY 2007, the Board expects to receive more than 4,000 ex parte appeals. In FY 2008, the Board expects to receive over 5,000 ex parte appeals. These rules are proposed to change procedures in such a way as to allow the Board to continue to resolve ex parte appeals in a timely manner.
The schedule for commenting has been set until September 28, 2007. No public hearings will be held. Comments may submitted by letter, fax or e-mailed at BPAI.Rules@uspto.gov.
In the remanded case, the district court considered MercExchange's motion for a permanent injunction, and eBay's motion for a stay, pending the outcome of the reexamination.
[T]he court has considered the timing of eBay’s request for reexamination; namely, that reexamination was sought by eBay after the jury reached a verdict on the ’265 patent in favor of MercExchange. Thus, even in light of the non-final PTO actions indicating that all claims of the ’265 patent are invalid as obvious, the court is not inclined to stay the post-trial proceedings as doing so would create the incentive for adjudicated infringers to seek to circumvent an otherwise enforceable jury verdict by utilizing an alternate forum.
[U]nlike the advanced stage of the litigation involving the ’265 patent, the ’051 patent never reached the jury as prior to the 2003 infringement trial on the ’265 and ’176 patents, the court granted summary judgment in favor of eBay on the ’051 patent, finding such patent unenforceable for failing to provide an adequate written description. This court’s grant of summary judgment was thereafter reversed by the Federal Circuit, but as five years have passed since discovery was conducted on such dispute, it does not appear that the parties are presently prepared for trial. Likewise, the fact that a large portion of the trial evidence will involve experts further indicates that both plaintiff and defendants will need to expend significant additional time and resources to prepare for trial.
the inventor of the patents a former patent attorney, indicates that MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market-share, reputation, goodwill, or name recognition, as MercExchange appears to possess none of these.
Again, since MercExchange was "only in it for the money," so to speak, the court found this factor weighed against Mercexchange.
Although the court recognizes that MercExchange has every right to utilize its patents in such manner, such behavior suggests that an injunction against eBay may also be used to obtain similar ends. Utilization of a ruling in equity as a bargaining chip suggests both that such party never deserved a ruling in equity and that money is all that such party truly seeks, rendering monetary damages an adequate remedy in the first instance.
Recognizing that forced royalties are an "imperfect solution," the court found that royalties were nevertheless the best option. Noting that this factor "favors neither party," the court stated that too much uncertainty lingered over the validity of the patents, especially in light of KSR. If the patents are found to be ultimately invalid, the "equitable calculus" would change.
On this prong, the court noted that it "weighs slightly against entry of an injunction." Being careful not to issue any categorical rules, the court considered the type of patent involved, the impact on the market, the impact on the patent system, and any other factor that may impact the public at large.
speculation regarding the final outcome of such reexamination, it would be futile to attempt to craft forward looking equitable relief without considering foreseeable future events.
Altitude Capital invested such funds to purchase an interest in MercExchange’s litigation recovery. Specifically, $4 million of such investment was distributed to MercExchange’s three members, and a large portion of the remainder was used to fund litigation or set aside as a reserve to pay MercExchange’s two employees salaries of $240,000 a year; little appears to have been devoted to developing the patents. Although the court accepts MercExchange’s sensible explanation that such investment, although substantial, was insufficient to enter the market as a freestanding competitor to eBay, it nevertheless appears to represent a bypassed opportunity to attempt to develop MercExchange’s patents.
The Partnership for Public Service and American University’s Institute for the Study of Public Policy Implementation has released the "Best Places to Work" rankings based on data received from the Office of Personnel Management’s (OPM) biannual Federal Human Capital Survey. The 2007 rankings reflect the data from OPM employee surveys taken during summer 2006.
How did the USPTO rank? Not so hot. Overall, it ranked in at no. 172 out of 222 agencies. In other words, 77 percent of federal agencies ranked higher than the USPTO on indices such as pay and benefits and matching employee skills to agency mission.
In the Pay and Benefits category, the PTO came in at 187 of the total 222 agencies scored. However, the employee dissatisfaction reflected in this ranking came from data collected before the special rate pay increase in December 2006.
Another sore spot is the disappointing ranking in the Work/Life Balance index, where PTO fell near the bottom (at 169 out of 222). This category “measures the extent to which employees consider their workloads reasonable and feasible, and managers support a balance between work and life.” Employees may be receiving pay and benefits that meet their career targets, but they may believe they’re working too many hours of required unpaid overtime in exchange.
Interestingly, and perhaps paradoxically, employees ranked the PTO's Strategic Management, highly, at 58. This category "measures the extent to which employees believe that management ensures they have the necessary skills and abilities to do their jobs, is successful at hiring new employees with the necessary skills to help the organization, and works to achieve the organizational goals with targeted personnel strategies and performance management."
POPA has noted that the demographics of OPM’s 2006 Human Capital Survey don’t tell the true story of PTO employee opinion. According to POPA, "of the 1,105 USPTO respondents to OPM’s survey, 50 percent were managers/supervisors. In reality, of the nearly 8,000 employees in 2006, perhaps 1,000 fell in that category."
"At a conference in New York yesterday, a speaker from the USPTO said the new patent rules on continuation applications and numbers of claims are expected to be published in August and in effect in October. IPO believes the rules are likely to be less severe than those that were published for comment in 2006."
"On July 9, 2007, OMB concluded its review of the Continuations and Claims rule changes. The final rules will be made public when they are published in the Federal Register, which is expected to be later this summer. The rules will become effective at least 60 days after publication in the Federal Register, and no earlier than October 1, 2007"
The abstracts of the rules currently available on the Federal Regulatory Information Web site (link1) (link2) reflects the abstracts of the Continuations and Claims notices of proposed rule-making that were published in January, 2006."
An internal USPTO team is currently working on details of implementing the rule changes. Examiners and managers will be given information and training on the new rules once they are published in the Federal Register. Additionally, management is currently discussing with POPA the appropriate process for negotiating any impacts the rules package may have.
As the Patent Reform Act moves its way through Congress, many companies (especially pharmaceutical companies) have turned to the foreign press to get a pulse on "outsider" views of the Act. While many of the foreign press reports provide relatively straightforward reporting on the Act's progress, a few reports have started to surface, where representatives of foreign companies have opined on ways they can benefit from the reform measures.
One particular article from The Economic Times of India raised alarm in the pharma industry, and even prompted Congressmen Michael Michaud (D-ME) and Donald Manzullo (R-IL) to send a "Dear Colleague" letter to fellow members, stressing that "[f]oreign competitors welcome the proposed change in U.S. patent law."
Traditionally, the Indian pharmaceutical industry has been characterized by a core competency in generics manufacturing and relatively immature capabilities in R&D. However, according to a recent report by ABM's Pharmaceutical Processing, this outlook has evolved substantially since the 1990s and Indian companies have been making investments towards expanding drug discovery and development capabilities. Also, the acceptance of patent laws and the rise of contract manufacturing have led to the diversification of revenue streams, enabling Indian pharma companies to experience high market growth.
- In 2005, the Indian pharmaceutical industry was valued at $4,660m, representing an increase of 8.3% over previous year of sales.
- $4,304m. A surge in growth is expected to take place between 2006 and 2008, attributable to the opportunities presented by contract research and manufacturing sourcing (CRAMS).
• See Michaud/Manzullo letter here (link).
- Special thanks to David Vandagriff for bringing this article to the 271 Blog's attention.
Companies Astra and Lejus Medical AB had a dispute over the ownership of a Lejus patent (the '318 Patent), which was originally developed by ex-Astra employees. When the ownership dispute was settled, Lejus agreed to divide claims to "metropol succinate" and to a "pharmaceutical composition" having metropol succinate as an active substance, and assigned those claims to Astra. Curiously, inventorship issues were never resolved.
Lejas subsequently filed a CIP off of the disputed patent (the '167 Patent), and followed with another continuation (the '154 Patent). The applications were then assigned back to Astra. Astra did not mention the inventorship dispute to the USPTO.
Astra filed suit on the two patents, and the defendants argued that the original Lejus patent ('318) created obviousness-type double patenting against the subsequent patents. Also, the defendant's argued that Astra's failure to disclose the inventorship dispute was inequitable conduct. The district court granted SJ in favor of the defendants on both counts. Due to the inventorship/ownership issues, Astra was unable to file a terminal disclaimer on the subsequent patents.
On appeal, Astra only challenged the invalidity of the '154 patent. The district court found the ’154 Patent to be a genus of the species claimed by the ’318 Patent. Since the species claimed by the ’318 Patent issued prior to the genus claimed by the ’154 Patent, the district court concluded that the ’154 Patent was "void for double patenting because it is not patentably distinct f[ro]m" Claim 8 of the ’318 Patent.
[I]n this case, Claim 1 of the ’154 Patent claiming a compound (A1) is an obvious variation of Claim 8 of the ’318 Patent claiming a composition comprised of one compound of an enumerated list (A1, A2, A3, etc.), an inner layer (B), and an outer layer (C). Specifically, it would have been an obvious variation of Claim 8 of the ’318 Patent to omit the inner layer (B) and the outer layer (C).
Moreover, the omission of the known elements from the composition in this case is "the product not of innovation but of ordinary skill and common sense." KSR Int’l Co. v. Teleflex Inc., 550 U.S. ----, 127 S. Ct. 1727, 1742 (2007).
Regarding the inequitable conduct, the CAFC reversed the finding of enforceability, stating that disputed material facts precluded summary judgment.
Allowance of claim 1 of the ’154 patent to metoprolol succinate will not result in the improper extension of the patent for the invention claimed in the ’318 patent. That is because in this case, each patent is capable of being practiced by itself, without infringing the other. The public can practice the invention in claim 8 of the ’318 patent when it expires by using any of the ten active ingredients recited in the claim other than metoprolol succinate. While some may find it desirable to use metoprolol succinate as the active ingredient in claim 8 of the ’318 patent, and those individuals will be unable to do so until the ’154 patent expires, that does not result in the "extension" of claim 8 in the ’318 patent, or in any recognized form of double patenting.
Benitec sued Nucleonics on a patent related to RNA-based disease therapy. During litigation, Benitec's efforts hit two snags: (1) Nucleonics obtained testimony that supported allegations of inventorship fraud, and (2) the Supreme Court decided Merck v. Integra Lifesciences, which expanded the pharmaceutical research exception of 37 U.S.C. § 271(e)(1).
Regarding the alleged inventorship fraud, Nucleonics counterclaimed for a declaratory judgment seeking invalidity and unenforceability of Benitec's patent.
Realizing the Merck decision limited the chances of success, Benitec successfully argued to dismiss the complaint without prejudice. As a result, the district court also dismissed Nucleonic's counterclaims, which spared Benitec the trouble of defending the validity of the patent.
Benitec provided a covenant not to sue Nucleonics on the patent. However, Nucleonics was also interested in expanding its business efforts beyond human health to animal husbandry and veterinary products (which are not covered under the safe harbor provision of § 271(e)(1) ). Thus, Nucleonics appealed the dismissal to the CAFC.
Under Medimmune (which was decided after oral arguments in this case), a party seeking to base jurisdiction on the Declaratory Judgment Act bears the burden of proving that the facts alleged, "‘under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'"
While Medimmune addressed DJ jurisdiction directly, this case was different in that the DJ jurisdiction arose in a counterclaim setting. Since Nucleonics was already charged with infringement, there was a clear case or controversy adequate to support jurisdiction at that time.
The parties have now both taken the position that Nucleonics’s present activities related to the human medical application of RNAi are, in light of § 271 and the Supreme Court’s decision in Merck, not infringing and cannot become infringing until after Nucleonics files a new drug application ("NDA") with the U.S. Food and Drug Administration ("FDA"). Nucleonics took this position, which the dissent does not mention, even before the decision in Merck. Benitec acknowledged lack of infringement later when it moved to dismiss its infringement claims. Nucleonics does not even anticipate filing an NDA before "at least 2010-2012, if ever." Therefore, Nucleonics’s activities of developing and submitting information to the FDA related to human application of RNAi does not present a case or controversy of sufficient immediacy and reality to warrant declaratory judgment jurisdiction over the enforceability of the ’099 patent. The fact that Nucleonics may file an NDA in a few years does not provide the immediacy and reality required for a declaratory judgment.
With regard to Nucleonic's expansion into animal testing, again, the CAFC found that DJ jurisdiction was not warranted, since there was little evidence that showed (a) what exactly Nucleonics was doing, and (b) that Nucleonics was capable of infringing Benitec's patent.
We recognize that Nucleonics would like to remove any concerns it or its potential investors might have over possible infringement of the Benitec patent. We do not express an opinion on whether Nucleonics’s animal work could ever be the subject of an infringement suit. We merely hold that Nucleonics did not carry its burden of showing an existing justiciable controversy . . . We also recognize that Nucleonics wishes to receive the benefit of a ruling on the validity and scope of Benitec’s patent now, while Nucleonics undertakes any nascent animal work. There is currently, however, no "substantial controversy, between [Benitec and Nucleonics], of sufficient immediacy and reality to warrant the issusance of a declaratory judgment." MedImmune, 127 S. Ct. at 771. And there may never be.
In my view, the patentee here has not come close to meeting its burden to show that there will be no future controversy. Even if we were to assume that there is no longer any possible controversy concerning Nucleonics’s research on human drugs, there is a possibility that Nucleonics may in the future make human drugs that Benitec would challenge as infringing . . . While I agree with the majority that the future controversy would not satisfy the sufficient immediacy and reality test for the filing of a new suit today, Benitec has made no effort to demonstrate that the controversy between the parties will not recur . . . Here Benitec’s success in defeating declaratory jurisdiction will have the effect of inhibiting Nucleonics’s ability to raise funds and conduct research and development. Nucleonics has stated that the threat of litigation has "hampered its efforts to obtain funding and to continue its business activities." . . . Benitec has not satisfied its burden to eliminate any future controversy concerning infringement of the ’099 patent.
Today the full House Judiciary Committee voted to advance the Patent Reform Act of 2007 to a full vote. The full committee follows a Judiciary Subcommittee on Courts, the Internet and Intellectual Property mark-up that was recently released. The Senate Judiciary Committee is scheduled to continue its debate tomorrow (Thursday).
Rep. Howard Berman released a statement saying "the time to reform the system is way past due . . . I hope to take this bill to the full House for a vote before we break for August recess."
Prior user rights is a defense to infringement if the accused infringer was commercially using the invention 1 yr. before the patent application is filed. Currently, the defense may be asserted only by the person who performed the acts that constitute the defense. This change broadens standing to include affiliates of that person.
Under existing law, the significant patent and trademark fees are set by statue. Thus, it takes an act of Congress to change such fees, which causes delay and complicates this process. In order to keep up with the hundreds of thousands of patent and trademark applications filed each year, the PTO needs to be able to set its own fees. This change gives the Director authority to do so, with several conditions that provide notice and input from Congress, the PTO's advisory committees and the public.
Currently, the law requires that patented “articles” must be “marked” in order to give constructive notice to the public so as not to infringe. Failure to mark prohibits the patentee from obtaining back damages prior to giving “actual” notice to the infringer (e.g., by way of letter or the filing of a complaint). However, some patents (e.g., method patents and in particular business method patents) have no such marking requirements. They can receive 6 years of back damages in every case. This bill reduces that number to 2 years from actual notice.
In addition to patents and printed publications, prior art includes all information that was available to the “public” before the application was filed. Current law uses the phrase “public use or on sale” to categorize this type of information. As a result, there has been much litigation, and thus uncertainty, over whether, e.g., secret collaboration agreements between companies constitutes prior art under this definition. The amendment would add “otherwise available to the public” to make clear that secret collaborative agreements, which are not available to the public, are not prior art.
And of course, everyone's favorite provision - "Applicant Quality Submissions"
The Director shall, by regulation, require that applicants submit a search report and other information and analysis relevant to patentability. An application shall be regarded as abandoned if the applicant fails to submit the required search report, information, and analysis in the manner and within the time period prescribed by the Director. Applicants from micro-entities, as defined in section 124 of this title, shall not be subject to the requirements of any regulations promulgated pursuant to this section.
From the Patently-O comment board: "I say file in the PCT, designate the US as the searching authority, nationalize back into the US and submit of the ISR and IPER. Let the USPTO try to argue that their own search isn't good enough."
NYU asserted two patents against Autodesk, which traced back to a parent application (the '799 Application). During prosecution of the parent application, the file was in the process of being transferred from one law firm to another. A Final Office Action was issued by the PTO, and no response was received by the 6 month date. When the PTO called the new firm, the responsible attorney (who left the new firm weeks later) confirmed abandonment, and the confirmation was recorded by the examiner.
Some six months later, a petition to revive was filed, where the petition only stated that "Applicant's failure to file a response was unintentional." The petition was subsequently granted by the PTO, without further comment.
Examiner Burwell’s note directly contradicts NYU’s statement. The note suggests that as of December 5, 1997, if not earlier, [the prosecuting attorney] and NYU were on notice that the PTO had deemed the ‘799 application abandoned and that some action would be necessary to revive the application. In light of that notice, without more, no reasonable factfinder could find that NYU’s decision not to take action –- and instead to “delay” seeking revival –- for the entire period between July 14, 1997 and November 4, 1998 was “unintentional” under 37 C.F.R. § 1.137(b)(3).
Here, the PTO’s decision more than meets these criteria for arbitrary and capricious action. The PTO “entirely failed to consider” Examiner Burwell’s note in the PTO’s own records, which was an “important aspect of the problem” because it directly contradicted NYU’s claim of unintentional delay. Further, the PTO’s “explanation for its decision” –- that it was relying on NYU’s statement in the petition to revive –- “runs counter” to NYU’s confirmed abandonment, evidenced by Examiner Burwell’s note, and does not remotely constitute the “satisfactory explanation” that State Farm requires.
Accordingly, the PTO’s decision to revive the ‘799 application was arbitrary and capricious and is hereby “h[e]ld unlawful and set aside.” 5 U.S.C. § 706(2)(A). Further, because neither the ‘053 patent nor the ‘132 patent should have issued . . . NYU’s Complaint alleging infringement of these patents must be dismissed.
In the typical APA review case, the lack of support for the agency’s decision always leads to a remand, not a final decision by in the District Court. “If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded to him for further consideration.” Camp v. Pitts, 411 U.S. 138 (1973) and Vt. Yankee, 435 U.S. at 549. Where the agency’s lack of a sufficient explanation overwhelms the district court’s review, then remand is typical under the APA. “If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Florida P. & L. Co. v. Lorion, 470 U.S. 729, 744 (1985).
While the software community has decried independent programmers that sue large companies on their patents, it appears that this practice has spread to other technological areas as well. Recently, a trend has emerged where doctors are obtaining their own patents, and then asserting them against medical device companies in court. While such litigation has been around for a while, some are speculating that the practice is on the rise.
The most notable example is the case of Medtronic v. Michelson, where doctor Gary Michelson (via his licensing firm, Karlin Technology Inc.) received a $1.35 billion dollar settlement over his patented implants and spinal surgery techniques. Recently, the CAFC upheld an infringed patent on a surgical method for removing a claw from a domesticated cat (Young v. Lumenis).
And doctors suing other doctors was not unheard of, either. In the 1995 case of Pallin v. Singer, eye surgeon Dr. Samuel Pallin sued several of his peers for the infringement of a medical procedure patent covering a new cataract surgery technique. During this litigation, the American Medical Association House of Delegates voted to condemn the patenting of medical and surgical procedures, and prompted Congress to attempt to outlaw the practice. While legislation was enacted to prohibit method infringement lawsuits against doctors, medical device makers can be liable for inducing infringement of a method by a doctor.
Legal and academic organizations such as the American Association of Orthopedic Surgeons estimate that 100 medical process patents are issued each month, which is double the amount in the 1980s. When the USPTO was contacted by the National Law Journal, a spokesman commented that "because we are seeing an increase in medical/surgical method applications," more hires are being sought.
Yesterday, the Senate was hoping to complete the panel's markup of the The Patent Reform Act (S. 1145), but managed to work only two amendments after adopting a manager's amendment that eliminated the provision that would have given the Patent and Trademark Office substantive rule-making authority.
The committee rejected, 7-11, an amendment that would provide the CAFC with greater discretion in considering interlocutory appeals.
However, panel members adopted, 12-6, an amendment that would further limit venue (oddly enough, John Cornyn of Texas, usually one of strongest critics of forum shopping in lawsuits, opposed the amendment).
(6) provides a safe harbor for individual inventor plaintiffs who qualify as a micro-entity by allowing venue where the individual resides.
View/download the venue mark-up here (link).
Is the Win Rate for Plaintiffs Slipping at the E.D. Texas?
Sam Williams, A Haven for Patent Pirates,Technology Review - "patent plaintiffs whose cases go to trial in Marshall win 88 percent of the time . . . compared with 68 percent nationwide. "
Julie Creswell, So Small a Town, So Many Patent Suits - The New York Times - "patent holders win 78 percent of the time, compared with an average of 59 percent nationwide."
Susan Decker, Texas district is heaven for patent holders under siege, The Seattle Times - "inventors and other patent owners have won jury verdicts 90 percent of the time since 1994."
As anyone that actually works in the patent docket can tell you around here, that just isn't true. Defendants have won half of the patent cases tried in the Eastern District this year, and the plaintiff's win rate in 2006 and 2007 combined is still only 66%. [Many patent cases] often show defense wins on summary judgment or other rulings.
[The listing] isn't exhaustive, and isn't meant to indicate any predisposition by any of the judges or the district as a whole . . . It's just meant to give readers the ammunition to explain to their elected officials, and to anyone else that is interested, that defendants can and do win here, and that the outcomes have a lot more to do with the facts of the case and the quality of the lawyering than they do any perceived tendencies by the judges or juries.
methods, or a specialist in ear treatments such as an otologist, otolaryngologist, or otorhinolaryngologist who also has training in pharmaceutical formulations."
"would have a medical degree, experience treating patients with ear infections, and knowledge of the pharmacology and use of antibiotics. This person would be . . . a pediatrician or general practitioner—those doctors who are often the ‘first line of defense’ in treating ear infections and who, by virtue of their medical training, possess basic pharmacological knowledge."
When considering the prior art, the district court concluded that the teachings fell outside the skill in the art of an otologist with only basic pharmacological knowledge, and held the patent nonobvious. The CAFC disagreed.
The inventors of the ’741 patent were specialists in drug and ear treatments—not general practitioners or pediatricians. At the time of the invention, Inventor Sato was a university professor specializing in otorhinolaryngology; Inventor Handa was a clinical development department manager at Daiichi, where he was involved with new drug development and clinical trials; and Inventor Kitahara was a research scientist at Daiichi engaged in the research and development of antibiotics. Additionally, others working in the same field as the inventors of the ’741 patent were of the same skill level.
[M]ost of the written description details the inventors’ testing ofloxacin on guinea pigs and their findings that ototoxicity did not result from the use of their compound. Such animal testing is traditionally outside the realm of a general practitioner or pediatrician. Finally, while a general practitioner or pediatrician could (and would) prescribe the invention of the ’741 patent to treat ear infections, he would not have the training or knowledge to develop the claimed compound absent some specialty training such as that possessed by the ’741 patent’s inventors.
[T]he district court’s error in determining the level of ordinary skill in the art of the ’741 patent tainted its obviousness analysis. In view of the correct level of skill in the art and the evidence of record, we conclude that as a matter of law the ’741 patent is invalid as obvious.
Effective on July 28,2007, the Japan Patent Office (JPO) will become the second foreign intellectual property office participating with the USPTO in a priority document exchange agreement (participating foreign intellectual property office) . . . Thus, the USPTO will have the ability to begin electronically retrieving JPO priority documents from the JPO through the Priority Document Exchange (PDX) system. Similarly, the JPO will also gain the ability to electronically retrieve US priority documents from the USPTO through the PDX system.
For US applications filed under 35 U.S.C. 111(a) on or after July 28,2007, the USPTO will automatically attempt to electronically retrieve a copy of any JPO priority document without the need for the applicant to file a request to retrieve in a separate document (e.g., form PTO/SB/38) if the US application claims foreign priority to the JPO application and identifies the JPO application in the oath or declaration under 37 CFR 1.63(c) or in an application data sheet under 37 CFR 1.76.
View the notice here (link).
After yesterday's report on the OMB's approval of the PTO rule changes, more information is slowly leaking out on the changes (see Patently-O post here).
According to the most recent information, two sets of rules have been approved. The rules are rumored to be "softened" versions of the original proposals. According to the IPO, "The rules have not yet been made public, but are understood to contain compromise limitations on continuations and claims that are less severe than those originally published and opposed by IPO and other groups in 2006. "
The new rules are expected to be published in the next month or two, and be effective around October (give-or-take a month).
The Office of Information and Regulatory Affairs (OIRA) has completed its review of the proposed PTO rule changes. Despite a litany of alleged improprieties regarding the manner in which the proposed changes were introduced, the OIRA has concluded that they are "consistent with change."
Unfortunately, this is difficult to assess from data reported by OIRA. All rules changed and then approved by OIRA are labeled “consistent with change.” A change for clarity, such as the insertion of a comma, is reported in the same manner as a change in substance that affects the very nature of the regulation. This label needs more specificity to distinguish the various types of changes OIRA makes.
Under Executive Order 12866, issued by President Clinton and still observed by the Bush administration, agencies are to document changes made to their rules while under review at OIRA. Yet this documentation is inconsistent and frequently inadequate. In a 1998 report, the General Accounting Office found complete documentation of OIRA changes for only 26 percent of the 122 regulatory actions it reviewed, covering EPA, the Dept. of Transportation (DOT), Housing & Urban Development (HUD), and DOL.
To view the brief conclusions of the regulatory review, click here and here.
(a) Congressional oversight. Several senators and congressmen have said "Get back to me when the executve branch is done. I understand the problem, and if it still exists at the end of executive branch review, let me know, and we'll see." So I need to hear from you to add weight to our request. The more districts/states we can show to be affected, the more offices we can approach.
(b) Administrative Procedure Act judicial review. We got another reply to another FOIA request yesterday, July 9 (coincidence?) - which confirms that the PTO did absolutely NO analysis of any significant issue, and is still hiding documents. (There are several documents that we know to exist, which PTO is still hiding.) We expect that this will not go over well with a court.
PharmaStem sued Viacell and 5 other defendants over broad patents related to stem cell medical treatment for persons having compromised blood and immune systems. After a 3 week jury trial, the jury returned a verdict in favor of PharmaStem, finding that the patents were not obvious and infringed. After the defendants filed JMOL motions to overturn the verdicts, the district court reversed the finding of infringement, but maintained that the patents were not invalid. Prior to, and during, the litigation, PharmaStem's patents survived 3 reexamination requests.
In a controversial split opinion, the CAFC upheld the JMOL on infringement and sua sponte held that the patents were invalid for obviousness.
One of the sticking points in the litigation was language in the claims that required that the recited composition contained stem cells "in an amount sufficient to effect hematopoietic reconstitution of a human adult."
Each of the defendants are in the business of servicing families with newborn infants in which blood from the infant's umbilical cord is collected and cryopreserved for possible later use. The problem was that PharmaStem could not show enough evidence that the defendants' cord blood contained a "sufficient" supply of stem cells to effect successful reconstitution of an adult. An expert provided testimony based on the defendants' marketing materials, but did not consider any data regarding the composition of the cord blood units. Accordingly, the expert's testimony was excluded.
While cord blood is certainly a product, the transaction between the defendants and their clients is plainly not the sale of "a material or apparatus for use in practicing a patented process," as is required by section 271(c) with respect to method patents. The evidence at trial showed that the cord blood remained the property of the families throughout the period in which the defendants stored it. The defendants were never owners of the blood, but instead were merely bailees; they were not free to dispose of the blood as they chose, but were contractually obligated to preserve it pending the families’ need for it at some point in the future. On those occasions when the cord blood was needed, the defendants provided the blood to transplanters in satisfaction of their contractual obligation to ship the families’ cord blood samples to a transplanter upon direction. Neither that transaction nor any earlier transaction between the families and the defendants constituted a "sale" of the cord blood.
The idea of using cryopreserved cord blood to effect hematopoietic reconstitution was not new at the time the inventors filed the applications that matured into the ’681 and ’553 patents . . . Accordingly, this is not a case in which there is any serious question whether there was a suggestion or motivation to devise the patented composition or process.
The more difficult question is whether the prior art would have given rise to a reasonable expectation of success in creating the process claimed in the ’553 patent and the composition claimed in the ’681 patent. In addressing that question, the parties focus on whether the inventors had a reasonable expectation that cord blood could be successfully used in transplants for hematopoietic reconstitution.
The problem with Dr. Bernstein’s testimony about the prior art references is that it cannot be reconciled with statements made by the inventors in the joint specification and with the prior art references themselves . . . [In the patentee's specification], the inventors acknowledged that it was previously known that the properties of cord blood are quite different from those of adult blood and that hematopoietic stem cells had been found in cord blood in much greater concentrations than in adult blood.
reflecting a careless use of the term "hematopoietic stem cell."
Accordingly, PharmaStem’s argument that stem cells had not been proved to exist in cord blood prior to the experiments described in the patents is contrary to the representation in the specification that the prior art disclosed stem cells in cord blood. Admissions in the specification regarding the prior art are binding on the patentee for purposes of a later inquiry into obviousness . . . Nor is there any unfairness in holding the inventors to the consequences of their admissions, as their characterization of the prior art as showing the presence of stem cells in cord blood is hardly unreasonable.
While the inventors may have proved conclusively what was strongly suspected before—that umbilical cord blood is capable of hematopoietic reconstitution—and while their work may have significantly advanced the state of the science of hematopoietic transplantations by eliminating any doubt as to the presence of stem cells in cord blood, the mouse experiments and the conclusions drawn from them were not inventive in nature. Instead, the inventors merely used routine research methods to prove what was already believed to be the case. Scientific confirmation of what was already believed to be true may be a valuable contribution, but it does not give rise to a patentable invention . . . Good science and useful contributions do not necessarily result in patentability.
PharmaStem also put forward secondary considerations in support of non-obviousness, but the CAFC was not receptive, stating that "there was no indication that the praise for the inventors’ work was based on any inventive contribution they made, as opposed to their proof, through laboratory work, that fetal blood contains large numbers of stem cells. As noted, the former is a basis for patentability; the latter is not. "
With regard to the reexamination, the CAFC viewed the analysis in the reexamination certificate as "flawed," based on similar reasons used to reverse the jury verdict.
The discoveries of these inventors were met with universal acclaim and widespread utilization, including the founding of many commercial enterprises, all of which are reported to have licensed the patents except for these defendants. Unimpressed by these considerations, my colleagues on this panel now reconstruct these inventions by selection and inference, with perfect hindsight of the discoveries.
The panel majority scours the prior art for clues that could fit the eventual achievement, and then rules that the achievement was obvious, no matter that it eluded the others whose work is now compiled by this court so as to invalidate these patents.
My colleagues ignore not only the scientific experts who testified at the trial, but also the PTO examiners who conducted the three reexaminations . . . My colleagues do not explain where the PTO went wrong; instead, they rearrange the past, criticize the acclaim heaped on these inventors, and propose that if the people in this field knew what this court knows, they would not have been so impressed.
The question is whether the jury's verdict is sustainable on the evidence presented, not whether we could have or would have gone the other way on the evidence presented.
It is often far easier to recognize the problem than to find and demonstrate the solution. The patent law recognizes that advances of great power may be based as much on persistent and skilled investigation as on the flash of creative genius, for both serve to transcend that which was previously achieved . . . Scientific methodology usually starts with a hypothesis based on what is already known; the record shows that several scientists mentioned the idea of rebuilding destroyed blood cells. However, none achieved this long-sought goal, and the record shows the extreme skepticism concerning even the possibility of this achievement.
The district court ruled that PharmaStem had not proved infringement because PharmaStem did not separately analyze the stem cell content of each sample of cord blood . . . Every defendant testified that the blood it collected and stored was analyzed for cell content at the time of collection. The jury was not instructed that such evidence was inadequate and inadmissible -- as the district court ruled post-trial. On the evidence presented, this is not a sound basis for rejecting the jury's verdict. The tardy rejection of the testimony of PharmaStem's expert witness, Dr. Hendrix, is an inappropriate application of Daubert and its succeeding cases, on which the panel majority relies, for there was no criticism of the expert's scientific credentials or her analysis of the prior art and the state of the science.
The principles of patent infringement are not negated when the steps of a method claim are performed by more than one entity. There was no instruction as to legal impossibility of liability as to the '553 patent, and no objection was raised to the verdict questions. We are not told whether the legal theory of sale or rent was aired at the trial, but it is apparent that the jury was fully apprised of the nature of the accused activities, as reflected in the jury questions . . . It is irrelevant whether any steps of a method claim can be viewed as a "service;" infringement requires only that the steps be performed.
Several trends, visible over the last ten years that add to the court’s workload have continued. Filings of patent infringement appeals, for example, have steadily increased. Even more significantly, patent cases have become more complex and hence time-consuming. Meanwhile, MSPB cases, which tend to be much simpler, and were previously the largest portion of pending cases, no longer are. At the end of May, our pendencies were: veterans: 420; patent infringement: 343; and personnel 241. Total filings have been rising steadily, if modestly. Thus, our docket continues to grow, with an increasing proportion of difficult cases.
We have been hearing more appeals, more rapidly, by scheduling more panels each month. From September through June, a different visiting district judge has sat with the court each month. Two will sit during July, August, and September. In fact, visiting judges have been scheduled through the summer of 2008.
Appeals Filed, by Category, FY 2006 (link) - patent (29%) and trademark (2%) cases make up 31% of the CAFC's workload.
Adjudications by Merits Panels, by Category, FY 2006 (link) - Patent (33%) and Trademark (1%) cases make up 34% of adjudications.
Appeals Filed and Terminated, by Category, FY 2006 (link) - 453 patent appeals were filed from the district courts, with 259 being adjudicated on the merits (57%); 42 patent appeals were filed from the USPTO, with 17% being adjudicated on the merits (40%).
Appeals Terminated on the Merits, FY 2006 (link) - of the district court cases (which include some non-patent cases), 60% were affirmed on the merits (167 of 278), 20% were affirmed-in-part (56 of 278), and 13% were reversed (36 of 278).
Historical Patent Filings 1997-2007 (link) - in 1997, 330 patent infringement appeals were filed. In 2006, the number of patent infringement appeals reached 453 (tying the number of cases heard in 2002). In 2007, 429 patent infringement appeals are projected.
Historical Caseload 1983-2006 (link) - in 2006, almost 1800 appeals were filed. While there is an upward trend in the caseload, the largest caseload continues to be 1985, where over 2400 appeals were filed.


text:
a part of the dwelling unit.
physical impairment, or loss of companionship and society.
Added by Acts 1989, 71st Leg., ch. 1072, § 1, eff. Sept. 1, 1989.
Acts 2003, 78th Leg., ch. 458, § 2.01, eff. Sept. 1, 2003.
a claim against a contractor.
or a common law cause of action, this chapter prevails.
(1)  "Goods" does not include a residence.
(2)  "Personal injury" does not include mental anguish.
(3)  a violation of Chapter 162.
Acts 2003, 78th Leg., ch. 458, § 2.02, eff. Sept. 1, 2003.
employee, or subcontractor of the contractor.
damages or other relief arising from a construction defect.
Acts 2003, 78th Leg., ch. 458, § 2.03, eff. Sept. 1, 2003.
for reasonable and necessary attorney's fees and court costs.
Added by Acts 1999, 76th Leg., ch. 189, § 4, eff. Sept. 1, 1999.
subsection in a claim subject to Subtitle D, Title 16.
by sending the offer to the claimant or the claimant's attorney.
claimant, the claimant must submit a request under Section 428.001.
compliance with Subsections (a) and (b).
the offer was rejected or considered rejected.
Subsection (e) shall not apply.
(6)  reasonable and necessary attorney's fees.
extend any time period described in this chapter.
received by the claimant is considered rejected.
final offer of settlement made under this section.
repair and to have it inspected.
limited statutory warranty and building and performance standards.
a monetary settlement offer or an offer to purchase the residence.
provided for in this section shall not apply.
2003, 78th Leg., ch. 458, § 2.04, eff. Sept. 1, 2003.
of a mediator, the court shall appoint the mediator.
mediation and contribute equally to the cost of the mediation.
not conflict with this section.
Added by Acts 1999, 76th Leg., ch. 189, § 6, eff. Sept. 1, 1999.
who sold the residence to the homeowner purchase it.
of a dispute under Subtitle D, Title 16, if applicable.
convincing evidence to the contrary.
the damages were proximately caused by the construction defect.
Added by Acts 1993, 73rd Leg., ch. 797, § 6, eff. Aug. 30, 1993.
defect as provided by Section 27.004 of the Texas Property Code."
Added by Acts 1999, 76th Leg., ch. 189, § 8, eff. Sept. 1, 2000.

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Polonsky A.B., Mel’nikova E.B., Serebrennikov A.N., Tokarev Yu.N. Regional peculiarities of the bioluminescent lighting and chlorophyll a concentration in the Black Sea phytoplankton. // Optika Atmosfery i Okeana. 2018. V. 31. No. 04. P. 275–281 [in Russian].
Variability of the profiles of bioluminescent lighting and chlorophyll a concentration along the coastal zone of the Crimea and its causes are analyzed using the data of two expeditions and satellite data. It is shown that the bioluminescent lighting and chlorophyll a concentration are minimal in a vicinity of the deep-sea cyclonic eddy, where the upwelling occurred and the upper mixed layer depth was as small as 20 m. Minima of bioluminescent lighting and chlorophyll a concentration were observed in the shallow area which is rich in biota.
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16. Oguz T. Role of physical processes controlling oxycline and suboxic layer structures in the Black Sea // Global Biogeochem. Cycles. 2002. V. 16, N 2. P. 3–13.
17. Polonsky A.В. Upwelling in the Northern Black Sea: Description, mechanisms and impact on chlorophyll a concentration // Upwelling: Mechanisms, Ecological Effects and Threats to Biodiversity / W.E. Fischer, A.B. Green (eds.). New York: Nova Science Publishers Inc., 2013. Р. 59–76.
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19. Polonskij A.B., Lovenkova E.A. Dolgovremennye tendencii v izmenchivosti harakteristik piknoklina Chernogo morja // Izv. RAN. Fiz. atmosf. i okeana. 2006. V. 42, N 3. P. 419–430.
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