Jerold V. Fennell, Omaha, NE, argued, for Appellant.
Michael G. Heavican, Assistant U.S. Attorney, Omaha, NE, argued for Appellee.
Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES, District Judge.
The Honorable John B. Jones, United States District Judge for the District of South Dakota, sitting by designation.
Darius Moss was convicted by a jury of conspiracy to possess with intent to distribute crack cocaine and of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1), 846 (1994), after which the District Court sentenced Moss to 360 months of imprisonment. Moss appeals his conviction and his sentence, and we affirm.
The Honorable William G. Cambridge, Chief United States District Judge for the District of Nebraska.
Moss first argues that the District Court erred in admitting into evidence under Federal Rule of Evidence 801(d)(2)(E) the testimony of co-conspirator Maurice Starks that described the out-of-court declarations of another alleged co-conspirator. See United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978) (laying out procedure for the admission of co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E)). Starks testified during Moss's trial as to statements made by "Boot," another alleged confederate, concerning the drug conspiracy. Moss contends that the government failed to establish that "Boot" was a co-conspirator or that his declarations furthered the conspiracy.
An out-of-court statement of a co-conspirator is admissible under Federal Rule of Evidence 801(d)(2)(E) if the trial court is convinced by a preponderance of the evidence that the challenged statement was made during the course and in furtherance of a conspiracy to which the declarant and the defendant were parties. See Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). A statement made in furtherance of a conspiracy "must somehow advance the objectives of the conspiracy, not merely inform the listener of the declarant's activities." United States v. DeLuna, 763 F.2d 897, 909 (8th Cir.) (quoting United States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984)) (alteration omitted), cert. denied, 474 U.S. 980 (1985). We review for clear error a district court's decision to admit co-conspirator testimony under Rule 801(d)(2)(E). See United States v. Edwards, 994 F.2d 417, 421 (8th Cir. 1993), cert. denied, 510 U.S. 1048 (1994).
Starks testified that he gave money to "Boot" on a number of occasions to purchase crack cocaine in three and four gram amounts for resale, that "Boot" identified Moss as his crack cocaine source, and that Starks eventually began purchasing his crack cocaine directly from Moss for distribution. This testimony was sufficient to establish that "Boot" was a member of the conspiracy who arranged drug purchases for Moss and who furthered the goals of the conspiracy by introducing potential distributors to Moss as a source of crack cocaine. Consequently, this testimony was properly admitted by the District Court under Rule 801(d)(2)(E). See, e.g., United States v. Guerra, 113 F.3d 809, 814 (8th Cir. 1997) ("Statements of a coconspirator identifying a fellow coconspirator as his source of controlled substances is in furtherance of the conspiracy and therefore admissible.").
Moss next asserts that the District Court erred in calculating the quantity of drugs attributable to him for sentencing purposes. At trial, Robert Howell testified that he purchased crack cocaine from Moss on a specific occasion and, during the course of this particular transaction, observed a total of nine ounces of crack cocaine. At the sentencing hearing, Moss attacked Howell's credibility by presenting the testimony of Roberta, Tonya, and Christine Douglas, residents of the home in which Howell testified that Moss displayed the nine ounces of crack cocaine, each of whom testified that Howell was never in their home and, therefore, could not have seen Moss with nine ounces of crack cocaine in their residence. Moss contends that the District Court erred in relying on Howell's uncorroborated testimony and in discounting the Douglases' contradictory testimony regarding the nine ounces of crack cocaine attributed to Moss.
We review a district court's drug quantity calculations for clear error. See United States v. Scott, 91 F.3d 1058, 1062 (8th Cir. 1996). "Defendants who challenge the sentencing court's determination of drug quantity face an uphill battle on appeal because we will reverse a determination of drug quantity only if the entire record definitely and firmly convinces us that a mistake has been made." United States v. Sales, 25 F.3d 709, 711 (8th Cir. 1994). Moreover, the credibility of witnesses is for the district court to determine, see United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995), and its findings as to credibility are "virtually unreviewable on appeal," United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993) (quoting United States v. Candie, 974 F.2d 61, 64 (8th Cir. 1992)).
After a careful review of the record, we are satisfied that the District Court did not err, much less clearly err, in attributing to Moss the nine ounces of crack cocaine testified to by Howell. The District Court, faced with the conflicting testimony of Howell and the Douglases, did not expressly make a credibility finding, but it is apparent that the court chose to credit Howell's testimony regarding the nine ounces of crack cocaine. Because "we do not `pass upon the credibility of witnesses or the weight to be given their testimony,'" United States v. Marshall, 92 F.3d 758, 760 (8th Cir. 1996) (quoting United States v. Witschner, 624 F.2d 840, 843 (8th Cir.), cert. denied, 449 U.S. 994 (1980)), we decline to reverse the District Court's drug quantity determination.
In a related argument, Moss contends that the District Court failed to follow Federal Rule of Criminal Procedure 32(c)(1), which directs sentencing courts to make specific findings resolving each controverted matter in a presentence report. Moss argues that, because the District Court neglected to make an express finding reconciling the conflicting testimony of Howell and the Douglases regarding the nine ounces of crack cocaine attributed to Moss for sentencing purposes, his sentence cannot stand. As noted above, it is apparent the District Court credited the testimony of Howell over that of the Douglases in finding Moss responsible for the nine ounces of crack cocaine. Though an express credibility finding would have been preferable, in these circumstances the District Court's assessment of witness credibility is evident. We therefore find no violation of Rule 32(c)(1).
Finally, Moss argues that the District Court erred in imposing a two-level enhancement for obstruction of justice. At the sentencing hearing, two United States Marshals testified that, during a trial recess while only the two marshals, a deputy, and witness Howell were in the courtroom, Moss knocked on the courtroom door to get Howell's attention and made a "cutthroat" gesture in Howell's direction by drawing his hand across his throat. Although Howell's testimony continued after this incident, the marshals testified that Howell was noticeably disturbed by the occurrence. Moss argues that his conduct does not amount to "threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so" as required for an obstruction of justice enhancement under the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 3C1.1, comment. (n. 3(a)) (1995).
We review a district court's factual findings relative to sentencing enhancements for clear error, see United States v. Cabbell, 35 F.3d 1255, 1261 (8th Cir. 1994), and conclude that the District Court did not clearly err in enhancing Moss's offense level by two levels for obstruction of justice. The District Court interpreted Moss's "cutthroat" gesture as an attempt to influence or intimidate Howell, and we find no fault with this interpretation. Although Howell continued to testify after the incident, an attempt to intimidate or threaten a witness, even if unsuccessful, is sufficient to sustain a two-level enhancement for obstruction of justice. See U.S. Sentencing Guidelines § 3C1.1.
Moss has submitted a pro se brief and a "Pro Se Traverse" raising additional arguments. We have considered these arguments and find them to be without merit.
Moss's conviction and sentence are affirmed.


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21. Plessy v. Ferguson (1886), chapter: four pages:111-112 in American Government Powers and Purpose by Theodore J. Lowi and others. Famous case, Plessy v. Ferguson is known for the line “Separate but Equal” which the court decided that the act of 1875 for civil rights was unconstitutional. On the bases of, the protection of African American from discrimination in private businesses. Then, Fourteenth Amendment in place the court of Louisiana pointed out that it only protects discrimination with public officials and governments. In Louisiana there was still segregation with race on transportation and public places. The significance that courts of Louisiana thought that equal protection laws were not infringe as long as both race was treated fairly. This were the separate but equal rule came into effect. The supreme court had challenge after this rule came into effected on racial discrimination. Later, after this Brown v. Board of Education case used this framework to build their case.
10. Brown v. Board of Education (1952) chapter: four pages:113-116 in American Government Powers and Purpose by Theodore J. Lowi and others. Brown v. Board of Education where they were able to ratified the Separate but equal cause that was in Plessy v. Ferguson. This case is about father Oliver Brown took his daughter to all white school to enroll her into third grade. After the school refused the acceptation of Linda Brown. Her father, Oliver Brown, took this case to National Association for the Advancement of Colored People (NAACP). The significance for this case is that in altered the framework the U.S. Constitution. First, states cannot have power to use race on basis od discrimination in the law. Second, that national government have power to get involve to put restrictions on state and local governments with dealing on reasons discrimination on grounds school boards, work place, and private areas that will promote discrimination.
23. Miranda v Arizona (1966) chapter: 4 pages: 92 in American Government Powers and Purpose by Theodore J. Lowi and others. In the Supreme Court ruled that if someone is getting arrested they constitutional right to be knowledge that they have legal rights. That the person getting arrest has the right to remain silence and have right to counsel which made the Miranda rule. The significance of these case is that before this rule no one knew they had legal rights they were just put in jail and waited for trial date. Now people know they have legal rights to protect themselves under the court of law.
4. De Facto & De Jure Segregation: Chapter:4 Page: 114 and 115 in American Government Power and Purpose by Theodore J. Lowi. De Facto segregation is in the meaning in racial segregation not straight forward conclusion of law or government in the policy making. However, it is image on inhabited patterns, like revenues and other community aspects. Conversely, De Jure Segregation is dealing with all results of the law and policy making. De Facto and De Jure Segregation was abolished in school districts both in north and the south however Brown v. Board of Education did not touch discrimination in workforce, public settings, courts, voting rights and other social and economic activities in the community. The significance of this is even after years of craziness the Brown v. Board of Education that congress had enormous southern rebelling had harmful public opinion on national level.
18. Roe v. Wade (1973): Chapter 12 Page: 416 and 417 in American Government Power and purpose by Theodore J. Lowi and others. Roe v. Wade year after Griswold v. Connecticut. Roe v. Wade is about abortion and how the conserves want to ban volunteer organizations on abortion. Courts ruled that abortions are under the right of privacy under the U.S. Constitution. They wanted to stop government funding on voluntary abortions. Significance, about this case that that in 1989 Webster v. Reproductive Health Services, which gave states the ability to put restrictions on abortion. In united states constitution courts decide it was under privacy law but now states have the right to put restrictions on abortion. It is not that private anymore to have penumbral the right to privacy in your own personal life like abortion.
12. Baron v Baltimore (1833): Chapter: 4 Page 87 and 88 in the American Government Power and Purpose by Theodore J. Lowi and others. This case was famous because bought the settlement whether the Bill of Rights legal limitations on state governments. The state was paving the streets, they had to disposed the gravel and sand. City of Baltimore decide to dump it in this local whaft and it was damage after city did that. This whaft was owned by John Barron. Mr. Barron believed that the city denied him Fifth Amendment right and that they were unconstitutional for depriving him his property without his consented. The ruling that each state in United states has their own constitution. Mr. Barron is dual citizen. Which means that you are national citizen and citizen for the state they reside in. This states that the Bill of Rights did not protect citizens on state or local level. Significance of this case is that it two centuries later to pass that Bill of Rights will come right to all citizens state and local governments have to follow. This is important because it did not take until after the Civil War in 1865 to make change on Constitution Rights and liberties.
23. Voting Rights Act of 1965: Chapter: 4, Pages: 110 and 111 in the American Government Power and Purpose by Thedore J. Lowi and others. This act of 1965 gave the right to African American and minorities that were men freedom to vote. Fifteenth Amendment that gives African American males the right to vote after the rebuilding of the South after the Civil War. However, the troops left the states and local government fringe their right to vote. Consequently, this gave African American’s not to have say in government and it weaken the political party. In 1944, for example, Supreme Court finally step in with the case Smith v. Allwright that it gave federal government the power of the state and local governments not to interrupt elections this protected African American people by enforce the right to vote. The significances to this is African American citizens are still struggling with their voting rights and how to keep their right as citizen alive.
21. Going Public: Chapter: 6, Page: 192 and 193 in the American Government Powers and Purpose by Theodore J. Lowi and others. Going Public is procedure that the modern and past presidents use to popular mobilize. This dates back to when President Theodore Roosevelt and Woodrow Wilson. This method that presidents use came defense in political world. Before popular mobilize, it was unsuitable for president to engage in personal campaigning and support political programs. For example, Andrew Johnson was the first president that broke that unwritten rule about being president in series of speeches about Reconstruction program. This is significant about Going Public helps the presidents build their claim on political popular mobilization procedure.
Civil liberties and civil rights are throughout the U.S. Constitution. Civil liberties and civil right are both a born right freedom of being U.S. Citizen. Civil liberties protected the U.S people from unacceptable government and agencies violations. Civil liberties are known as restrain on government activities that are unconstitutional. While, civil rights are more towards obligations that the government and agencies have to protect the citizens from any wrong doing in the government. In the U.S. Constitution, civil liberties are compared with negative consequences on the freedom. Furthermore, civil rights are opposite of civil liberties with positive outlook on the freedom of citizen in the United States.
In the U.S. Constitutional basis for civil liberties and civil rights are listed in the Amendments of the constitution. Civil liberties are government shall not infringe. Compare to, civil rights are the government shall do this for the citizens. These are separated into two different categories for restraints on government. First, is substantive and second, is procedural. Substantive examples are the First and Second Amendment when it states the government shall not. Procedural examples are the Fourth, Fifth, Sixth, and Seventh Amendments it mentions that government citizen shall be able to do such thing. The Amendments in the U.S. Constitution have chains on the government how the delegate their power.
“…No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any States deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” (Chapter: 14 and Page 89).
This clearly states that no government, governmental agencies, and states are not allowed to intrude on citizens’ rights and protections of being natural born citizen of the United State. Every citizen that was born in the U.S. has life, liberty, or property rights, no state is can come in take that for the people without due process law that is in the Fifth Amendment. Correspondingly, the government is not permitted to reject jurisdiction under the citizen’s equal protection under the court of law. The Fourteenth Amendment lays out the what the government shall not in the first section of the amendment and makes it very clearly what the government cannot do.
Nationalization (incorporation) is also known for “Incorporation of the Bill of Right”, help us understand civil liberties with moments in United State history there have been where citizen’s rights have been violated. For instance, Barron v. Baltimore (1833), where the U.S. Supreme Court recognized “dual citizenship” concept that entails that citizens can be American in the national government and also a citizen of one of the states they reside in. With this notion in the play of the U.S. Constitution dual citizenship did not allow states or local governments to recognize the Bill of Rights for the citizens of that state. In case with dual citizenship, did not work out it gave states too much power over national government. Now in 2018, this is civil liberty violation in the U.S. Constitution. In in most recent cases, in United States is Griswold v. Connecticut (1965), the Griswold’s were married couple that were not trying to have baby in 1965 in Connecticut that was illegal for that to happen. The U.S. Supreme Court made decision on the Bill of Rights confined the “penumbral” which means where the right of privacy in the citizen’s household to proustite activities that are birth control, abortion, the rights of homosexuals, and citizens have the right for physician- assisted the death process. In the case dealing with penumbral gave citizens that right to women, men, and homosexual the right to have these activities in their private lives.
Civil liberties and civil rights are imbedded into the United States Constitution. It has some negative and positive outcome and have change throughout American history. They both keep the government and states in check on what is constitutional and unconstitutional. Civil liberties and civil rights gave American citizens privacy laws, citizenship laws, and amendments. The Fourteenth Amendment dealing with civil liberties and due process law that involved that government shall not overstep it boundary in citizen’s life, liberty, and property. Civil liberties and civil rights have been throughout American in cases, laws, and protest it has made America what it is today.
Government has changed over time and space. When the framers made this country, it is not what we see today as modern-day America Government. The biggest shift in American history is the decline in Congressionally-centered government to Presidentially centered government. Congressionally centered government was about congress had complete power American government in law making process. It was during the Woodrow Wilson era in nineteenth century with his ideas and the intentions of the framers. This Congressional government had three central parts of government. That is the separation power. When it switched to more towards Presidentially centered government, which this brought the New Deal period gave executive branch more power and removal of the Congressional centered government. This new power of government took new spin on the congress that framers did not intend.
The New Deal Era during the Roosevelt administration known for the “first hundred days.” (chap.6 page:187). In this during the New Deal period were politicians adopted that congress needs to change the scope and appeal of the new national government. The old fashion way was that the president is obligated to execute the laws in a fair matter. Now, after Roosevelt being president. The presidency main responsibility is to make sure that the laws are shape before implementing the laws. This gave president leg up than Congress in the power separation into the three branches.
The expansion of the role in national government has some positive and negative consequences that were made after the New Deal. Positive aspects in the new administration brought was Social Security Act it improved the economic statues in America. In this time, it also brought some part of country out of poverty Other positive perspective that happen was Works Process Administration was able to bring citizens back to work after the Great Depression. It also gave name the America’s Federal Government it was one biggest employer at this time. This brought long the American Dream aspect that nation talks about. Yes, the expansion had some positive notions to address by building up the American economy and giving back social setting into America.
Nevertheless, there were some negative aspects on the expansions of the new president-central government. “Delegation of power” is the main effect the New Deal. (chap.6 and page: 188). It provoked actions from constitutional that the Supreme court approve that the president will receive more power by passing the New Deal. (chap.6 and Page: 188).The three separation branches of government, that have to equal power in the national government. This New Deal changes that completely does not divide the power throughout the government. It gives president power over the “Independent Agencies and Government Corporation, Cabinet, White House staff, and Executive Office of the President.” (chap.6 and Page: 189). This is not beneficial giving the president power over the resources that run the country.
The past history of America presidency has some negative aspects that need addressing. The president did take a lot of power away from the congressional centralized government. Government America need to recognize what the framers intended for this country. Yes, I know we are in modern times, we need to keep up with economic, social setting, and technology than what the framers thought was going to happen. We need to fix the separations of power and the three branches of main government and grow power back into each of the three branches government. These are the negative portions that effected modern day presidency. These concerns that president is receiving to much power and the congress is trying to get their power back. It is concerning on how that one bad president can turn into a dictator like some other countries like Iran and Russia now they are under dictatorship. United States was under dictatorship for long time from Great Britain. The framers did not want to be under the dictatorship. They made constitution and founding’s to not fall into dictatorship. That is main concern I have on not having separation of powers on the government.
The presidency area of government has change and Modern presidency is different that it is now than farmers thought the country would be like. It is hard to figure out what the framers intent for the constitution. In time and space government has changed. Congress needed to change the scope and appeal of the new national government. There were some positive and negative aspect to the New Deal and the congressional -centered government moving towards presidency -centered government. The new government that the New Deal created is the one we know today. Probably in my life time there will be new idea of how the government will operate.

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Pope Francis, Statutes, Dicastery for Laity, Family and Life, 4 June 2016.
The Dicastery for the Laity, Family, and Life is competent in matters that pertain to the Apostolic See regarding the promotion of life, the apostolate of the lay faithful, the pastoral care of the family and its mission according to God’s plan and for the safeguard and support of human life.
§1. The Dicastery shall be presided over by a Prefect, who in turn is assisted by a Secretary, who may be a layperson, as well as by three lay Undersecretaries. It is to be staffed by an appropriate number of officials, clerics and lay people, chosen, in so far as possible, from different regions of the world, according to the Norms of the Roman Curia currently in force.
§2. The Dicastery is divided into three sections: one for the lay faithful, one for family, and one for life, each of which is to be presided over by an Under-Secretary.
§1. The Dicastery has its own members, among whom there are lay faithful, men and women, celibates and married couples, coming from different areas of expertise and from different parts of the world in such a way as to reflect the Church’s universal character.
§2. The Dicastery arranges for its own Consultors.
§3. In all of its work, the Dicastery respects the Norms established for the Roman Curia.
The Dicastery promotes and organizes international conferences and other initiatives, whether they pertain to the apostolate of the laity, to the institution of marriage, and to the reality of the family and life in the ecclesial sphere, or pertain to the human and social state of the laity, of the institution of the family, and of human life in society at large.
This Section has the duty to discern, encourage and promote the vocation and mission of the lay faithful in the Church and in the world, whether married or single, besides the members of associations, movements, and communities. Furthermore, this Section promotes studies that contribute to a deepening of the doctrinal understanding of the themes and issues regarding the lay faithful.
§1. This Section helps the lay faithful to become more aware of their shared responsibility, by virtue of their Baptism, for the life and mission of the Church, in accord with the various charisms received for the common task of building up the Church, with particular attention to the unique mission of the lay faithful to illuminate and perfect the order of temporal affairs (cf. Lumen Gentium, n. 31).
§2. In the spirit of the Pastoral Constitution Gaudium et Spes, n. 1, which invites the Church to make “the joy and hope, the grief and anguish of the men of our time” Her own, this Section promotes all those initiatives which concern the laity’s task of evangelizing in the different areas of the temporal world, with due respect for the competency of the respective organs of the Roman Curia in these same matters.
§3. Furthermore, this Section promotes the participation of the lay faithful in catechetical instruction, in the Church’s liturgical and sacramental life, in missionary activity, in works of mercy, charity, and in human and social advancement. It supports and encourages all this through an active and responsible presence in consultative bodies of governance present in the Church at both her universal and particular levels.
§4. This Section evaluates the initiatives of Episcopal Conferences that apply to the Holy See, according to the needs of the particular Churches, to set up new ecclesiastical ministries and offices.
§1. This Section establishes the right to aggregate of the faithful and lay movements with an international character, approves them or recognizes their Statutes, with due regard for the competence of the Secretariat of State; it likewise treats possible administrative recourse pertaining to the scope of the Dicastery’s competence.
§2. In regard to Third Secular Orders and associations of consecrated life, the Section only handles matters that pertain to their apostolic work.
§1. This Section in light of the Papal Magisterium promotes the pastoral care of the family; it oversees its dignity and good rooted in the sacrament of marriage; it supports the rights and responsibilities of the family in the Church and in civil society, so that the institution of the family can better carry out its proper function in both the ecclesial and social setting.
§2. This Section discerns the signs of the times and considers the best way the family can face with confidence and Gospel wisdom the challenges that confront it, and to apply, at this moment in history and in today’s society, God’s plan for marriage and the family.
§3. It follows the work of the institutions, associations, movements, and other national and international Catholic organizations whose mission it is to serve the good of the family.
§1. It attends to a deepening of the teaching on the family and its dissemination through appropriate catechesis; in particular it promotes the study of the spirituality of marriage and family and their implications for formation.
§2. It offers guidelines for formation programmes designed to prepare engaged couples for marriage and assists newly married couples.
§3. It also offers guidelines for pastoral programmes that support the family in the faith-formation of young people and for their preparation for ecclesial and civil life, with special concern for the poor and the marginalized.
§4. It helps families to be open to the adoption and foster-care of children, to the care of the elderly, in cooperation with the civil institutions so that they support these methods.
This Section is directly linked to the Pontifical Institute of John Paul II for Studies on Marriage and the Family, both to the central headquarters and the affiliated institutions, to ensure a common syllabus in the study of marriage, family and life.
§1. This Section supports and coordinates initiatives that foster responsible procreation, as well as the protection of human life from conception until natural death, keeping in mind the needs of the person in the various phases of human development.
§2. This Section promotes and encourages organizations and associations that help women and families to accept and protect the gift of life, especially during difficult pregnancies, and to prevent recourse to abortion. It also supports programmes and initiatives aimed to help women who have had an abortion.
This Section will study and promote, on the basis of Catholic moral teaching and the Church’s Magisterium, formation in the most important biomedical and legal questions regarding human life and the emerging ideologies regarding human life and the reality of the human being.
The Pontifical Academy for Life is connected with this Dicastery, which, by virtue of the issues and themes mentioned in Article 11, will avail itself of that section’s competence.
The present Statutes are approved ad experimentum. I hereby decree that they be promulgated through their publication in L’Osservatore Romano and subsequently published in the Acta Apostolicae Sedis, coming into force on 1 September 2016. From that date forward, the respective function of the Pontifical Council for the Laity and the Pontifical Council for the Family will cease, as those dicasteries will be suppressed with the abrogation of Articles nn. 131-134 and nn. 139-141 of the Apostolic Constitution, Pastor Bonus.

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In a recent Arizona meth crime decision, the court considered whether using or possessing several deadly weapons while perpetrating a drug felony should be considered just one offense under Arizona Revised Statutes (“A.R.S.”) section 13-3102(A)(8) and whether a defendant convicted of transporting methamphetamine for sale under A.R.S. § 13-3407(A)(7) should be able to get an early release.
The case arose when a highway patrol officer saw the defendant driving by with his windows down and then slowed while passing him. The policeman followed him and stopped him for hitting the brakes for no reason and twice swerving over the fog line.
The defendant and his passenger provided inconsistent statements, so the policeman asked for a drug canine unit. The dog alerted. The police found handguns, four pounds of meth, half a pound of heroin, and another case that held a bit of heroin and a used syringe. The defendant admitted he’d used heroin and gave a urine sample. A drug test showed metabolites of marijuana, methamphetamine, and heroin.
In a recent Arizona drug crime decision, a woman appealed her conviction for possession of dangerous drugs. The case arose in 2014, when a Tempe officer initiated a traffic stop of a car driven by the defendant. He’d seen a traffic violation. While stopping her, he saw her moving inside the car, leaning forward, and then moving in her seat. Her arm went behind her back such that he became suspicious there was a weapon or contraband in the car.
The officer completed a check of records. He came back to speak to the defendant and her passenger. The defendant explained that she’d been moving in order to find her keys so that the officer wouldn’t think the car was stolen. She explained her ignition was messed up, and the key had broken inside it. The officer asked for police assistance after determining he would ask the defendant and her passenger to leave the vehicle in order to perform a canine sniff or consensual search. He saw the defendant pick something up and move it while waiting for backup.
Another officer came. The first officer approached the car again, and this time he saw that the defendant had her purse on her lap and a multi-tool. He also noticed she had cut her thumb. She explained she had the multi-tool because she wanted to ensure she could start her car.
In a recent Arizona drug crime decision, the defendant was convicted of transporting a dangerous drug for sale, possessing a dangerous drug, possessing a dangerous drug for sale, possessing drug paraphernalia, and possessing a deadly weapon while committing a felony drug offense. He was sentenced to presumptive, minimum, and concurrent prison terms. The longest of these was five years.
On appeal, he argued that the trial court incorrectly denied his motion to suppress, his convictions for transporting and possessing dangerous drugs violated the double jeopardy rule, and the court had miscalculated his entitlement to pre-sentence incarceration credit.
The case arose when a DEA agent got involved in a group surveillance of a stash house in a Tucson neighborhood that had a reputation for drug trafficking. The police saw two cars with out-of-state license plates involved in suspicious behavior at a convenience store. People with those license plates didn’t come there frequently. There was a lot of back and forth activity between the vehicles, and they left at the same time, which is a common sign of prohibited drug activity.
Recently, an Arizona appellate court considered an Arizona drug crime conviction for possession of narcotics for sale and possession of dangerous drugs for sale. The convictions were for class 2 felonies under A.R.S. §§ 13-3407 and 13-3408. The defendant argued that the fines imposed were unconstitutionally applied to him and that it was improper for the trial court not to consider his financial status when fining him.
The case arose when cops seized about 10 pounds of methamphetamine and under one pound of cocaine from the defendant’s home in Phoenix. The prosecution introduced evidence at trial to show that the value of the drugs seized was $8,000-10,000 for the cocaine and $30,000 for the meth. The defendant didn’t object to the prosecution’s evidence and didn’t offer any other evidence about the seized drugs’ worth. He was found guilty.
Under A.R.S. § 13-3407(H), the minimum he could be fined for possession of dangerous drugs was the greater of $1,000 or three times the value of the dangerous drugs as decided by the court. The judge had no discretion to suspend the fines. Under A.R.S. § 13-3408(F), the minimum he could be fined for narcotic drug possession was the greater of $2,000 or three times the value of the narcotics involved. The cap on fines was $150,000.
In a recent Arizona appellate case, a defendant appealed from his conviction and sentences for possession of dangerous drugs and possession of drug paraphernalia. He was arrested in 2014 after being found in possession of meth in a plastic bag. The police had responded to a call about a suspicious man going into yards and knocking on doors. The man was reported to be Hispanic and in his 30s.
The defendant matched the description of a 911 call and was located a short distance away behind a retaining wall on private property. He identified himself, and the officer asked if he had anything he wasn’t supposed to have, like drugs or guns. He answered yes and was ordered to stop and place his hands on his head. He took his hand out of his pocket. The officer saw a plastic baggie sticking out. When he took it out, he saw it held a substance that looked like meth.
The meth was in the baggie, which was also in another baggie. He was arrested and searched, and the officers found a plastic baggie that held syringes. He claimed this was for insulin for a medical condition, which he stated wasn’t diabetes. He was indicted for possessing a dangerous drug (a violation of A.R.S. § 13-3407(A)(1), (B)) and for possession of drug paraphernalia (a violation of A.R.S. § 13-3415(A), (F)(2)).
In a recent appellate case based on an Arizona drug crime prosecution, an Arizona Court of Appeals considered a conviction for possession of a dangerous drug. A police officer had been conducting surveillance on a residence when a blue car approached. The car’s passenger entered the home and then went back to the car two times. Each time, he was carrying something in his hands. Another officer followed him after he left the home, and he stopped the car for a traffic violation.
The officer got identification from the driver of the car and a passenger. He checked for warrants, and there were none. Other officers came to the scene, and one of the officer’s drug detection dogs conducted a sniff of the outside of the car.
The officers asked the driver and the passenger to get out of the car. The officer asked the passenger if he had weapons. When the officer conducted a pat-down of the passenger’s waist to make sure he didn’t have weapons, the passenger ran away. He took off his jacket and dropped it while running. The officer followed and arrested him.
In a recent Arizona appellate case, the defendant appealed his conviction for the sale of methamphetamine, a class 2 felony under A.R.S. section 13-3407(A)(2), as well as possession of drug paraphernalia, a class 6 felony, and endangerment, a class 6 felony.
He argued that there was not enough evidence to convict him on the meth sale charge. Specifically, the police hadn’t found meth on him or inside his car, and his fingerprints weren’t found on plastic bags containing meth. The prosecution hadn’t presented any evidence showing that he possessed meth for sale. Ordinarily, this is evidence like cash, a scale, or a ledger.
The appellate court disagreed, explaining that the prosecution had presented quite a bit of evidence that he did possess meth and drug paraphernalia. The defendant had not stopped during a traffic stop, causing detectives to pursue him until he crashed. After crashing, he got out of the car and fled from the officers. One chased by foot, and the other chased by car. They witnessed him throw an object away like a baseball.
Can a Conviction That is Set Aside Be Used to Revoke an AMMA Caregiver Card?
In a recent appellate decision, an Arizona man appealed from a lower court’s ruling affirming DHS’ order that revoked his caregiver registration card under the Arizona Medical Marijuana Act, A.R.S. §§ 36-2801 through 2810 (“AMMA“). The reason for the revocation was that the man had committed an excluded felony offense back in 2005 and was not eligible to be a designated caregiver under the statute.
The case arose in 2005 when the man pled guilty to possessing cocaine for sale, which was a class 2 felony. His sentence was suspended, he was fined, and he was put on probation for five years. He completed probation and paid the fine, and he was discharged from probation in 2008.
However, after that, he tried to have his 2005 conviction set aside under A.R.S. § 13-907. These motions were denied, and he tried again in 2012. but the superior court denied the motions. He tried again in February 2012. In two months, the court granted the application and formally set aside the judgment. The order also restored his civil rights except the right to possess or carry a firearm.


In the state of California, it is illegal to possess marijuana in most instances. If you have been arrested due to possession of marijuana, it is important for you to get proper legal advice. You can contact Williams & Javellana, LLP for more information about your case and how we can defend you properly. We are familiar with marijuana possession cases and we do what is necessary to defend your case aggressively, both in and out of the court of law. Here are some things that you should know about the possession of marijuana which may have resulted in your arrest.
If you were arrested due to holding a small amount of marijuana that was for personal use, you may be guilty of an infraction or misdemeanor. Health and Safety Code §11357 (b) states that if you possess less than 28.5 grams (ounce) of marijuana you can be charged with an infraction. However, if you have more than an ounce of marijuana you can be charged with a misdemeanor under Health and Safety Code § 11357 (c). If the amount is less than an ounce, the penalty tends to be fairly light. For this type of a charge, it is likely that you will only receive a fine of up to $100. If, on the other hand, if you were in possession of more than one ounce of marijuana for personal use, you may end up spending as much as six months in the county jail and could get a fine of up to $500. It is important to understand, even if the penalty is light, it will still result in a criminal record which may affect you in many ways, including your ability to get a job.
If you were in possession of marijuana in California and were cultivating it, you may be guilty of a felony under Health and Safety Code § 11358. This is according to California law, which states that any individual who cultivates, plants, harvests, processes and dried marijuana will be punished with imprisonment in the county prison for up to 3 years. Many people believe that if they have a medical marijuana recommendation (215 script) that they can have or possess as many plants as they want. This is not true. Under The Compassionate Use Act of 1996, a person can have as much marijuana that is reasonably necessary for their medical condition.
It is also a felony to possess marijuana with the intent to sell it under Health and Safety Code §11359. This is true, even if no transaction was observed. The prosecutors may charge you with intent to distribute, based on circumstantial evidence which can include large quantities of marijuana, cash, and possession of scales, packaged marijuana, and packaging materials.
There are also many other types of cases that involve marijuana such as driving under the influence of marijuana (California Vehicle Code § 23152 (a) or driving with marijuana in your vehicle (California Vehicle Code § 23222(b). Regardless of your case, it is important for you to have legal counsel to determine the best outcome. When you contact Williams & Javellana, LLP for more information about your case of possession of marijuana, we will defend you aggressively. We do what is necessary to ensure that your case goes smoothly and if at all possible, that it does not affect your permanent record.


35 U.S.C. 102 Conditions for patentability; novelty.
(3) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.
Pre-AIA 35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.
(1) Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the claimed invention was made, owned by the same person or subject to an obligation of assignment to the same person.
(C) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.
(3) For purposes of paragraph (2), the term "joint research agreement" means a written contract, grant, or cooperative agreement entered into by two or more persons or entities for the performance of experimental, developmental, or research work in the field of the claimed invention.
37 C.F.R. 1.78 Claiming benefit of earlier filing date and cross-references to other applications.
(g) Applications or patents under reexamination naming different inventors and containing patentably indistinct claims. If an application or a patent under reexamination and at least one other application naming different inventors are owned by the same person and contain patentably indistinct claims, and there is no statement of record indicating that the claimed inventions were commonly owned or subject to an obligation of assignment to the same person on the effective filing date (as defined in § 1.109 ), or on the date of the invention, as applicable, of the later claimed invention, the Office may require the applicant or assignee to state whether the claimed inventions were commonly owned or subject to an obligation of assignment to the same person on such date, and if not, indicate which named inventor is the prior inventor, as applicable. Even if the claimed inventions were commonly owned, or subject to an obligation of assignment to the same person on the effective filing date (as defined in § 1.109 ), or on the date of the invention, as applicable, of the later claimed invention, the patentably indistinct claims may be rejected under the doctrine of double patenting in view of such commonly owned or assigned applications or patents under reexamination.
Claims in commonly owned applications of different inventive entities may be rejected on the ground of double patenting. This is in accordance with existing case law and prevents an organization from obtaining two or more patents with different expiration dates covering nearly identical subject matter. See In re Zickendraht, 319 F.2d 225, 138 USPQ 22 (CCPA 1963) (the doctrine is well established that claims in different applications need be more than merely different in form or content and that patentable distinction must exist to entitle applicants to a second patent); see also In re Christensen, 330 F.2d 652, 141 USPQ 295 (CCPA 1964).
Claims may also be rejected on the grounds of nonstatutory double patenting in certain non-commonly owned applications that claim inventions resulting from activities undertaken within the scope of a joint research agreement as defined in 35 U.S.C. 102(c) or pre-AIA 35 U.S.C. 103(c)(2). This prevents the parties to the joint research agreement from obtaining two or more patents with different expiration dates covering nearly identical subject matter.
Nonstatutory double patenting rejections can be overcome in certain circumstances by disclaiming, pursuant to the provisions of 37 CFR 1.321(c), the terminal portion of the term of the later patent and including in the disclaimer a provision that the patent shall be enforceable only for and during the period the patent is commonly owned with the application or patent which formed the basis for the rejection, thereby eliminating the problem of extending patent life. Nonstatutory double patenting rejections can also be overcome in cases subject to a joint research agreement, under certain circumstances, by disclaiming the terminal portion of the term of the later patent and including in the disclaimer the provisions of 37 CFR 1.321(d).
See MPEP § 717.02 et seq. for information pertaining to establishment of common ownership and the existence of a joint research agreement pursuant to 35 U.S.C. 102(c), as well as examination practice relating to 35 U.S.C. 102(b)(2)(C). See MPEP § 706.02(l) - § 706.02(l)(3) for information pertaining to establishment of common ownership and the existence of a joint research agreement pursuant to pre-AIA 35 U.S.C. 103(c), as well as examination practice relating to pre-AIA 35 U.S.C. 103(c).
Applications or patents are "commonly owned" pursuant to 35 U.S.C. 102(b)(2)(C) or pre-AIA 35 U.S.C. 103(c)(1) if they were wholly or entirely owned by the same person(s), or organization(s)/business entity(ies), at the time the claimed invention was filed or made, respectively. If the person(s) or organization(s) owned less than 100 percent of the subject matter which would otherwise be prior art to the claimed invention, or less than 100 percent of the claimed invention, then common ownership would not exist. Common ownership requires that the person(s) or organization(s)/business entity(ies) own 100 percent of the subject matter and 100 percent of the claimed invention. See MPEP § 717.02(a), subsection I, and MPEP § 706.02(l)(2) for a detailed definition of common ownership. 35 U.S.C. 102(b)(2)(C) provides that disclosures shall not be prior art under 35 U.S.C. 102(a)(2) if the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person. If the prior art exception under 35 U.S.C. 102(b)(2)(C) is properly invoked, the commonly owned or joint research agreement reference is not available as prior art under 35 U.S.C. 102(a)(2) for both anticipation and obviousness rejections. See MPEP § 717.02(a) for more information on invoking this prior art exception and MPEP § 717.02(b) for more information on evaluating when the exception applies and is properly invoked.
(C) the inventions were, at the time the later invention was made, owned by the same person or subject to an obligation of assignment to the same person.
The Cooperative Research and Technology Enhancement Act of 2004 (CREATE Act) (Public Law 108-453; 118 Stat. 3596 (2004)), which amended pre-AIA 35 U.S.C. 103(c), was enacted on December 10, 2004. The CREATE Act permits an applicant or patentee, who is a party to a joint research agreement, to disqualify prior art that is applied in a rejection under pre-AIA 35 U.S.C. 103(a) and that is otherwise available as prior art only under pre-AIA 35 U.S.C. 102(e), (f) or (g). Congress recognized that this amendment to pre-AIA 35 U.S.C. 103(c) would result in situations in which there would be double patenting between patents or applications not owned by the same party. See H.R. Rep. No. 108-425, at 5-6 (2003).
Pursuant to the CREATE Act, non-commonly owned applications or patents that are subject to a joint research agreement may be treated as if they are "commonly owned," i.e., owned or subject to assignment by the same person, for the purposes of determining obviousness if certain conditions are met. See pre-AIA 35 U.S.C. 103(c)(2). The term "joint research agreement" means a written contract, grant, or cooperative agreement entered into by two or more persons or entities for the performance of experimental, developmental, or research work in the field of the claimed invention. See pre-AIA 35 U.S.C. 103(c)(3). See also MPEP § 706.02(l)(2).
(D) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.
B. The CREATE Act provisions (pre-AIA 35 U.S.C. 103(c) ) only applied to obviousness rejections and not to anticipation rejections.
The examiner should make both a double patenting rejection based on common ownership and a rejection based on prior art when the facts support both rejections. Until applicant has established that a reference is disqualified as prior art under the joint research agreement defined in 35 U.S.C. 102(c) and pre-AIA 35 U.S.C. 103(c)(2) and (3), the examiner should NOT apply a double patenting rejection based on a joint research agreement. See MPEP §§ 706.07(a), 717.02(c), and 804, subsection VI., for information regarding when an Office action that includes a new subsequent double patenting rejection based upon a reference subject to a joint research agreement defined in 35 U.S.C. 102(c) and pre-AIA 35 U.S.C. 103(c)(2) and (3) may be made final.
A determination of priority is not required when two inventions are commonly owned as set forth in 35 U.S.C. 102(b)(2)(C) or pre-AIA 35 U.S.C. 103(c)(1).
Pursuant to 37 CFR 1.78(g), where an application or a patent under reexamination and at least one other application by different inventive entities are owned by the same party and contain conflicting claims, the examiner may require the assignee to state whether the claimed inventions come within the provisions of 35 U.S.C. 102(b)(2)(C) (i.e., indicate whether common ownership or an obligation of assignment to the same person existed on the effective filing date) or pre-AIA 35 U.S.C. 103(c) (i.e., indicate whether common ownership or an obligation of assignment to the same person existed at the time the later invention was made). For example, if the assignee states that the provisions of pre-AIA 35 U.S.C. 103(c) do not apply to the conflicting claimed inventions, the assignee is required to indicate which named inventor is the prior inventor. Form paragraphs 8.27.aia, 8.27.fti, 8.28.aia, 8.28.fti, 8.28.01.aia and 8.28.01.fti may be used to require the applicant to identify the prior inventor under 37 CFR 1.78(g) or to take certain actions. In order to avoid abandonment, the assignee must comply with the requirements under 37 CFR 1.78(g) unless the conflicting claims are eliminated in all but one application. If, however, the two inventions come within the provisions of 35 U.S.C. 102(b)(2)(C) or pre-AIA 35 U.S.C. 103(c), it is not necessary to determine priority of invention since the earlier invention is disqualified as prior art against the later invention and since double patenting rejections can be used to ensure that the patent terms expire together. Accordingly, a response to a requirement under 37 CFR 1.78(g) which states that the inventions of different inventive entities come within the provisions of 35 U.S.C. 102(b)(2)(C) or pre-AIA 35 U.S.C. 103(c) is complete.
Before making a requirement to identify the prior inventor in an application subject to pre-AIA 35 U.S.C. 102(f) or (g), and threatening to hold the application abandoned if the statement is not made by the assignee, the examiner must make sure that claims in the application under examination or patent under reexamination and the claims in the other application(s) are conflicting as defined in MPEP § 804. See In re Rekers, 203 USPQ 1034 (Comm’r Pat. 1979).
In some situations the prosecution file histories may reflect which invention is the prior invention, e.g., by reciting that one invention is an improvement of the other invention. See Margolis v. Banner, 599 F.2d 435, 202 USPQ 365 (CCPA 1979) (Court refused to uphold a holding of abandonment for failure to name the prior inventor since the record showed what was invented by the different inventive entities and who was the prior inventor.).
An application in which a requirement to name the prior inventor has been made will not be held abandoned where a timely response indicates that the other application is abandoned or will be permitted to become abandoned and will not be filed as a continuing application. Such a response will be considered sufficient since it renders the requirement to identify the prior inventor moot because the existence of conflicting claims is eliminated. Also, any conflict between two or more pending applications can be avoided by abandoning the applications and filing a continuation-in-part application merging the conflicting inventions into a single application.
Form paragraphs 8.27.aia, 8.27.fti, 8.28.aia, 8.28.fti, 8.28.01.aia, and 8.28.01.fti may be used to require the applicant to resolve issues that may arise in applications that have different inventors but a common assignee and claim the same or patentably indistinct inventions.
Claim  directed to the same invention as that of claim  of commonly assigned . Under 35 U.S.C. 101, more than one patent may not be issued on the same invention.
The USPTO may not institute a derivation proceeding in the absence of a timely filed petition. The U.S. Patent and Trademark Office normally will not institute a derivation proceeding between applications or a patent and an application having common ownership (see 37 CFR 42.411 ). The applicant should amend or cancel claims such that the reference and the instant application no longer contain claims directed to the same invention.
1. Form paragraph 7.03.aia must be included in any Office action that contains this paragraph.
2. In bracket 3, insert the U.S. patent number or the copending application number.
3. The claims listed in brackets 1 and 2 must be for the same invention. If one invention would have been obvious in view of the other, do not use this form paragraph; see form paragraph 8.28.aia.
4. A provisional or actual statutory double patenting rejection should also be made using form paragraph 8.31 or 8.32.
5. If the commonly assigned application or patent has an earlier effective filing date in accordance with 35 U.S.C. 100(i), a rejection under 35 U.S.C. 102(a)(2) may also be made using form paragraph 7.15.01.aia or 7.15.02.aia.
Claim  directed to the same invention as that of claim  of commonly assigned . The issue of priority under pre-AIA 35 U.S.C. 102(g) and possibly pre-AIA 35 U.S.C. 102(f) of this single invention must be resolved.
The U.S. Patent and Trademark Office normally will not institute an interference between applications or a patent and an application having common ownership (see MPEP Chapter 2300). Either the applicant must amend or cancel claims such that the reference and the instant application no longer contain claims directed to the same invention, or the assignee must state which entity is the prior inventor of the commonly claimed subject matter. A terminal disclaimer has no effect in this situation since the basis for refusing more than one patent is priority of invention under pre-AIA 35 U.S.C. 102(f) or (g) and not an extension of monopoly.
Failure to comply with this requirement will result in a holding of abandonment of this application.
1. Form paragraph 7.03.fti must be included in any Office action that contains this paragraph.
3. The claims listed in brackets 1 and 2 must be for the same invention. If one invention would have been obvious in view of the other, do not use this form paragraph; see form paragraph 8.28.fti.
5. If the commonly assigned application or patent has an earlier U.S. filing date, a rejection under pre-AIA 35 U.S.C. 102(e) may also be made using form paragraph 7.15.01.fti or 7.15.02.fti.
Claim  directed to an invention not patentably distinct from claim  of commonly assigned . Specifically, .
1. This form paragraph should be used when the application being examined is commonly assigned with an application or patent that includes claims patentably indistinct from those in the present application, but it has not been established that they were commonly owned or deemed to have been commonly owned as of the effective filing date under 35 U.S.C. 100(i) of the claimed invention. See 35 U.S.C. 102(b)(2)(C) and 35 U.S.C. 102(c).
2. A rejection under 35 U.S.C. 102(a)(2) /103 using form paragraph 7.21.aia, 7.21.01.aia or 7.21.02.aia also should be made, as appropriate.
3. In bracket 3, insert the number of the patent or application that includes claims patentably indistinct from those in the present application.
4. A nonstatutory double patenting rejection should also be included in the action using one of form paragraphs 8.34 to 8.37.
5. In bracket 4, explain why the claims in the present application and the reference patent or application are patentably indistinct.
6. Form paragraph 8.28.01.aia MUST follow this paragraph.
1. This form paragraph should be used when the application being examined is commonly assigned with an application or patent that includes claims patentably indistinct from those in the present application, but there is no indication that they were commonly assigned at the time the invention was made.
2. A rejection under pre-AIA 35 U.S.C. 102(e) /103(a) using form paragraph 7.21.fti, 7.21.01.fti or 7.21.02.fti also should be made, as appropriate. Rejections under pre-AIA 35 U.S.C. 102(e) /103(a) should not be made or maintained if the patent is disqualified under pre-AIA 35 U.S.C. 103(c) as prior art in a pre-AIA 35 U.S.C. 103(a) rejection.
3. In bracket 3, insert the number of the reference patent or application.
6. Form paragraph 8.28.01.fti MUST follow this paragraph.
The U.S. Patent and Trademark Office may not institute a derivation proceeding in the absence of a timely filed petition. The USPTO normally will not institute a derivation proceeding between applications or a patent and an application having common ownership (see 37 CFR 42.411 ). Commonly assigned , discussed above, would be prior art to the noted claims under 35 U.S.C. 102(a)(2) if the patentably indistinct inventions were not commonly owned or deemed to be commonly owned as of the effective filing date under 35 U.S.C. 100(i) of the claimed invention.
In order for the examiner to resolve this issue the applicant or patent owner can provide a statement under 35 U.S.C. 102(b)(2)(C) and 37 CFR 1.104(c)(4)(i) to the effect that the subject matter and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person. Alternatively, the applicant or patent owner can provide a statement under 35 U.S.C. 102(c) and 37 CFR 1.104(c)(4)(ii) to the effect that the subject matter was developed and the claimed invention was made by or on behalf of one or more parties to a joint research agreement that was in effect on or before the effective filing date of the claimed invention, and the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; the application must also be amended to disclose the names of the parties to the joint research agreement.
A showing that the inventions were commonly owned or deemed to be commonly owned as of the effective filing date under 35 U.S.C. 100(i) of the claimed invention will preclude a rejection under 35 U.S.C. 102 or 103 based upon the commonly assigned case. Alternatively, applicant may take action to amend or cancel claims such that the applications, or the patent and the application, no longer contain claims directed to patentably indistinct inventions.
This form paragraph should follow form paragraph 8.28.aia and should only be used ONCE in an Office action.
The U.S. Patent and Trademark Office normally will not institute an interference between applications or a patent and an application of common ownership (see MPEP Chapter 2300). Commonly assigned , discussed above, may form the basis for a rejection of the noted claims under pre-AIA 35 U.S.C. 102 or 103(a) if the commonly assigned case qualifies as prior art under pre-AIA 35 U.S.C. 102(e), (f) or (g) and the patentably indistinct inventions were not commonly owned at the time the claimed invention in this application was made. In order for the examiner to resolve this issue the assignee can, under pre-AIA 35 U.S.C. 103(c) and 37 CFR 1.78(g), either show that the patentably indistinct inventions were commonly owned at the time the claimed invention in this application was made, or name the prior inventor of the subject matter at issue.
A showing that the inventions were commonly owned at the time the claimed invention in this application was made will preclude a rejection under pre-AIA 35 U.S.C. 103(a) based upon the commonly assigned application that qualifies as a reference under pre-AIA 35 U.S.C. 102(e), (f) or (g). Alternatively, applicant may take action to amend or cancel claims such that the applications, or the patent and the application, no longer contain claims directed to patentably indistinct inventions.
This form paragraph should follow form paragraph 8.28.fti and should only be used ONCE in an Office action.
If the provisions of 35 U.S.C. 102(b)(2)(C) or pre-AIA 35 U.S.C. 103(c)(1) apply to the commonly owned conflicting inventions of different inventive entities or if the provisions of 35 U.S.C. 102(c) or pre-AIA 35 U.S.C. 103(c)(2) apply to non-commonly owned inventions subject to a joint research agreement and thereby obviate the rejection(s), double patenting rejection(s) should be made (or maintained) as appropriate. If, however, it is determined that the provisions of 35 U.S.C. 102(b)(2)(C) or pre-AIA 35 U.S.C. 103(c) do NOT apply because the inventions were not commonly owned or subject to an obligation of assignment to the same person at the time the later invention was filed or made, or because the claimed invention did NOT result from activities undertaken within the scope of a joint research agreement as required by 35 U.S.C. 102(c) or pre-AIA 35 U.S.C. 103(c)(2) and (3), and there is evidence of record to indicate that a patent or application is prior art against the application being examined, the examiner should make (A) any appropriate double patenting rejection(s), and (B) the appropriate prior art rejection(s) under 35 U.S.C. 102 and/or 35 U.S.C. 103 in the application being examined. See the charts in MPEP § 804. Rejections under 35 U.S.C. 102 or 35 U.S.C. 103 cannot be obviated solely by filing a terminal disclaimer.
Claim(s)  is/are rejected under 35 U.S.C. 102  as being  by .
1. This form paragraph should only be used in an application filed on or after March 16, 2013, where the claims are being examined under 35 U.S.C. 102 /103 as amended by the Leahy-Smith America Invents Act. This form paragraph must be preceded by form paragraph 7.03.aia.
2. In bracket 1, insert the claim numbers which are under rejection.
3. In bracket 2, insert either "(a)(1)" or "(a)(2)" or both. If paragraph (a)(2) of 35 U.S.C. 102 is applicable, use form paragraph 7.15.01.aia, 7.15.02.aia or 7.15.03.aia where applicable.
4. In bracket 3, insert either --clearly anticipated-- or --anticipated-- with an explanation at the end of the paragraph.
5. In bracket 4, insert the prior art relied upon.
6. This rejection must be preceded either by form paragraph 7.07.aia and form paragraphs 7.08.aia, and 7.12.aia as appropriate, or by form paragraph 7.103.
7. For applications claiming priority to, or the benefit of, an application filed before March 16, 2013, this form paragraph must be preceded by form paragraph 7.06.
Claim(s)  is/are rejected under pre-AIA 35 U.S.C. 102  as being  by .
1. In bracket 2, insert the appropriate paragraph letter or letters of pre-AIA 35 U.S.C. 102 in parentheses. If paragraph (e) of pre-AIA 35 U.S.C. 102 is applicable, use form paragraph 7.15.01.fti, 7.15.02.fti or 7.15.03.fti.
2. In bracket 3, insert either --clearly anticipated-- or --anticipated-- with an explanation at the end of the paragraph.
3. In bracket 4, insert the prior art relied upon.
4. This rejection must be preceded either by form paragraph 7.07.fti and form paragraphs 7.08.fti, 7.09.fti, and 7.14.fti as appropriate, or by form paragraph 7.103.
5. If pre-AIA 35 U.S.C. 102(e) is also being applied, this form paragraph must be followed by either form paragraph 7.15.01.fti, 7.15.02.fti or 7.15.03.fti.
6. For applications with an actual filing date on or after March 16, 2013, that claim priority to, or the benefit of, an application filed before March 16, 2013, this form paragraph must be preceded by form paragraph 7.06.
1. This paragraph must be preceded either by paragraphs 7.07.fti and 7.13.fti or by paragraph 7.103.
2. In bracket 2, insert an explanation of the supporting evidence establishing that applicant was not the inventor. See MPEP § 2137.
Claim  is/are rejected under 35 U.S.C. 103 as being unpatentable over .
2. This form paragraph must be preceded by either form paragraph 7.20.aia or form paragraph 7.103.
3. An explanation of the rejection must follow this form paragraph. See MPEP § 2144.
4. If this rejection is a provisional 35 U.S.C. 103 rejection based upon a copending application that would constitute prior art under 35 U.S.C. 102(a)(2) if patented or published, use form paragraph 7.21.01.aia instead of this paragraph.
5. In bracket 1, insert the claim numbers which are under rejection.
6. In bracket 2, insert the prior art relied upon.
Claim  is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over .
1. This paragraph must be preceded by either form paragraph 7.20.fti or form paragraph 7.103.
2. An explanation of the rejection must follow this form paragraph. See MPEP § 2144.
3. If the rejection relies upon prior art under pre-AIA 35 U.S.C. 102(e), use pre-AIA 35 U.S.C. 102(e) as amended by the American Inventors Protection Act to determine the reference’s prior art date, unless the reference is a U.S. patent issued directly, or indirectly, from an international application which has an international filing date prior to November 29, 2000. In other words, use pre-AIPA 35 U.S.C. 102(e) only if the reference is a U.S. patent issued directly or indirectly from either a national stage of an international application (application under 35 U.S.C. 371 ) which has an international filing date prior to November 29, 2000 or a continuing application claiming benefit under 35 U.S.C. 120, 121 or 365(c) to an international application having an international filing date prior to November 29, 2000. See the Examiner Notes for form paragraphs 7.12.fti and 7.12.01.fti to assist in the determination of the reference’s 35 U.S.C. 102(e) date.
4. If the applicability of this rejection (e.g., the availability of the prior art as a reference under pre-AIA 35 U.S.C. 102(a) or pre-AIA 35 U.S.C. 102(b) ) prevents the reference from being disqualified under pre-AIA 35 U.S.C. 103(c), form paragraph 7.20.01.fti must follow this form paragraph.
5. If this rejection is a provisional pre-AIA 35 U.S.C. 103(a) rejection based upon a copending application that would comprise prior art under pre-AIA 35 U.S.C. 102(e) if patented or published, use form paragraph 7.21.01.fti instead of this paragraph.
6. In bracket 1, insert the claim numbers which are under rejection.
7. In bracket 2, insert the prior art relied upon.
Further, if the conflicting applications have different effective U.S. filing dates, the examiner should consider making a provisional rejection in the later filed application, based on the earlier filed application, under 35 U.S.C. 102(a)(2), using form paragraph 7.15.01.aia, under 35 U.S.C. 103 using form paragraph 7.21.01.aia, or under pre-AIA 35 U.S.C. 102(e) or 102(e) /103(a), using form paragraph 7.15.01.fti or 7.21.01.fti. Rejections under 35 U.S.C. 102 or 103 cannot be obviated solely by the filing of a terminal disclaimer.
Claim(s)  is/are provisionally rejected under 35 U.S.C. 102(a)(2) as being anticipated by copending Application No.  which has a common  with the instant application.
Based upon the earlier effective filing date of the copending application, it would constitute prior art under 35 U.S.C. 102(a)(2), if published under 35 U.S.C. 122(b) or patented under 35 U.S.C. 151. This provisional rejection under 35 U.S.C. 102(a)(2) is based upon a presumption of future publication or patenting of the copending application. .
This provisional rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the copending application was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the copending application and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
This rejection may not be overcome by the filing of a terminal disclaimer. See In re Bartfeld, 925 F.2d 1450, 17 USPQ2d 1885 (Fed. Cir. 1991).
2. This form paragraph is used to provisionally reject over a copending application with an earlier effective filing date that discloses the claimed invention and has not been published under 35 U.S.C. 122. The copending application must have either a common assignee, common applicant (35 U.S.C. 118 ) or at least one common joint inventor.
c. a WIPO publication of an international application (PCT) or international design application that designates the United States where the WIPO publication has an effectively filed date earlier than the effective filing date of the application.
If any of the three types of prior art documents under 35 U.S.C. 102(a)(2) issued or was published before the effective filing date of the application under examination, then the prior art document is also applicable under 35 U.S.C. 102(a)(1).
4. If the claims would have been obvious over the invention disclosed in the other copending application, use form paragraph 7.21.01.aia.
5. In bracket 1, insert claim number(s) under rejection.
6. In bracket 2, insert the application number.
7. In bracket 3, insert --assignee--, --applicant--, or --joint inventor--.
8. In bracket 4, provide an appropriate explanation of the examiner’s position on anticipation.
9. Under 35 U.S.C. 101, two patents are not permitted to issue on identical subject matter. Any claims in the instant application directed to the same invention claimed in the reference should be provisionally rejected using form paragraphs 8.30 and 8.32. Additionally, the applicant should be required to amend or cancel claims such that the applied reference and the instant application no longer contain claims directed to the same invention using form paragraph 8.27.aia.
10. Any claims in the instant application that are directed to subject matter that is not patentably distinct from an invention claimed in the reference should be rejected (or provisionally rejected if the reference has not yet issued as a patent) on the grounds of nonstatutory double patenting using form paragraph 8.33 and at least one of form paragraphs 8.34 - 8.39.
11. For applications claiming priority to, or the benefit of, an application filed before March 16, 2013, this form paragraph must be preceded by form paragraph 7.06.
This provisional rejection might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the copending application was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the copending application and the claimed invention either were owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. See generally MPEP § 717.02.
2. This paragraph is used to provisionally reject claims not patentably distinct from the disclosure in a copending application having an earlier effectively filed date and also having either a common assignee, a common applicant (35 U.S.C. 118 ), or at least one common joint inventor.
3. If the claimed invention is fully disclosed in the copending application, use form paragraph 7.15.01.aia.
4. In bracket 1, insert the claim number(s) which is/are under rejection.
5. In bracket 2, insert the application number.
6. In bracket 3, insert --assignee--, --applicant--, or --joint inventor--.
7. In bracket 4, insert an explanation of obviousness. See MPEP § 2144.
8. If the claimed invention is not patentably distinct from the invention claimed in the copending application, a provisional nonstatutory double patenting rejection should additionally be made using form paragraphs 8.33 and 8.37.
Claim(s)  is/are provisionally rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by copending Application No.  which has a common  with the instant application.
Based upon the earlier effective U.S. filing date of the copending application, it would constitute prior art under pre-AIA 35 U.S.C. 102(e), if published under 35 U.S.C. 122(b) or patented. This provisional rejection under pre-AIA 35 U.S.C. 102(e) is based upon a presumption of future publication or patenting of the copending application. .
This provisional rejection under pre-AIA 35 U.S.C. 102(e) might be overcome either by a showing under 37 CFR 1.132 that any invention disclosed but not claimed in the copending application was derived from the inventor of this application and is thus not the invention "by another," or by an appropriate showing under 37 CFR 1.131(a).
1. This form paragraph is used to provisionally reject over a copending application with an earlier filing date that discloses the claimed invention which has not been published under 35 U.S.C. 122. The copending application must have either a common assignee, a common applicant (35 U.S.C. 118 ), or at least one common joint inventor.
2. Use pre-AIA 35 U.S.C. 102(e) as amended by the American Inventors Protection Act (AIPA) and the Intellectual Property and High Technology Technical Amendments Act of 2002 (form paragraph 7.12.fti) to determine the copending application’s prior art date, unless the copending application is based directly, or indirectly, from an international application which has an international filing date prior to November 29, 2000. If the copending application is either a national stage of an international application (application under 35 U.S.C. 371 ) which has an international filing date prior to November 29, 2000, or a continuing application claiming benefit under 35 U.S.C. 120, 121, 365(c), or 386(c) to an international application having an international filing date prior to November 29, 2000, use pre-AIPA 35 U.S.C. 102(e) (form paragraph 7.12.01.fti). See the Examiner Notes for form paragraphs 7.12.fti and 7.12.01.fti to assist in the determination of the reference’s 35 U.S.C. 102(e) date.
3. If the claims would have been obvious over the invention disclosed in the other copending application, use form paragraph 7.21.01.fti.
4. In bracket 3, insert --assignee--, --applicant--, or --joint inventor--.
5. In bracket 4, an appropriate explanation may be provided in support of the examiner’s position on anticipation, if necessary.
6. Under 35 U.S.C. 101, two patents are not permitted to issue on identical subject matter. Any claims in the instant application directed to the same invention claimed in the reference should be provisionally rejected using form paragraphs 8.30 and 8.32. Additionally, the applicant should be required to amend or cancel claims such that the applied reference and the instant application no longer contain claims directed to the same invention using form paragraph 8.27.fti.
7. Any claims in the instant application that are directed to subject matter that is not patentably distinct from an invention claimed in the reference should be rejected (or provisionally rejected if the reference has not yet issued as a patent) on the grounds of nonstatutory double patenting using form paragraph 8.33 and at least one of form paragraphs 8.34 - 8.39.
8. If evidence is additionally of record to show that either invention is prior art to the other under pre-AIA 35 U.S.C. 102(f) or (g), a rejection using form paragraphs 7.13.fti and/or 7.14.fti should also be made.
9. For applications with an actual filing date on or after March 16, 2013 that claim priority to, or the benefit of, an application filed before March 16, 2013, this form paragraph must be preceded by form paragraph 7.06.
This provisional rejection might be overcome either by a showing under 37 CFR 1.132 that any invention disclosed but not claimed in the copending application was derived from the inventor or joint inventors (i.e., the inventive entity) of this application and is thus not the invention "by another," or by a showing of a date of invention for the instant application prior to the effective U.S. filing date of the copending application under 37 CFR 1.131(a). This rejection might also be overcome by showing that the copending application is disqualified under pre-AIA 35 U.S.C. 103(c) as prior art in a rejection under pre-AIA 35 U.S.C. 103(a). See MPEP § 706.02(l)(1) and § 706.02(l)(2).
1. This paragraph is used to provisionally reject claims not patentably distinct from the disclosure in a copending application having an earlier U.S. filing date and also having either a common assignee, a common applicant (35 U.S.C. 118 ), or at least one common joint inventor. This form paragraph should not be used when the copending application is disqualified under pre-AIA 35 U.S.C. 103(c) as prior art in a pre-AIA 35 U.S.C. 103(a) rejection. See MPEP § 706.02(l)(3).
2. Use pre-AIA 35 U.S.C. 102(e) as amended by the American Inventors Protection Act (AIPA) to determine the copending application's prior art date, unless the copending application is based directly, or indirectly, from an international application which has an international filing date prior to November 29, 2000. If the copending application is either a national stage of an international application (application under 35 U.S.C. 371 ) which has an international filing date prior to November 29, 2000, or a continuing application claiming benefit under 35 U.S.C. 120, 121, 365(c), or 386(c) to an international application having an international filing date prior to November 29, 2000, use pre-AIPA 35 U.S.C. 102(e) to determine the copending application’s prior art date. See the Examiner Notes for form paragraphs 7.12.fti and 7.12.01.fti to assist in the determination of the reference’s pre-AIA and pre-AIPA 35 U.S.C. 102(e) dates, respectively.
3. If the claimed invention is fully disclosed in the copending application, use paragraph 7.15.01.fti.
8. If the claimed invention is not patentably distinct from the invention claimed in the copending application, a provisional obviousness double patenting rejection should additionally be made using form paragraphs 8.33 and 8.37.
b. the copending application has not been disqualified as prior art in a pre-AIA 35 U.S.C. 103(a) rejection pursuant to pre-AIA 35 U.S.C. 103(c).
Claim(s)  is/are rejected under 35 U.S.C. 102(a)(2) as being  by .
The applied reference has a common  with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
2. This form paragraph is used to reject claims under 35 U.S.C. 102(a)(2) over a U.S. patent, U.S. patent application publication, or WIPO publication with an earlier effectively filed date. These references must have either a common assignee, a common applicant (35 U.S.C. 118 ), or at least one common joint inventor.
c. a WIPO publication of an international application (PCT) or international design application that designates the United States where the WIPO publication has an effectively filed date earlier than the effective filing date of the claimed invention.
If any of the three types of prior art documents under 35 U.S.C. 102(a)(2) was published before the effective filing date of the claimed invention under examination, then the prior art document is also applicable under 35 U.S.C. 102(a)(1).
4. In bracket 1, insert the claim numbers which are under rejection.
5. In bracket 2, insert either --clearly anticipated-- or --anticipated-- with an explanation at the end of the paragraph.
6. In bracket 3, insert the prior art relied upon.
7. In bracket 4, insert --assignee--, --applicant--, or --joint inventor--.
8. This form paragraph must be preceded by form paragraph 7.12.aia.
9. Under 35 U.S.C. 101, two patents are not permitted to issue on identical subject matter. Any claims in the instant application directed to the same invention claimed in the reference should be rejected (or provisionally rejected if the reference has not yet issued as a patent) on the grounds of statutory double patenting using form paragraphs 8.30 - 8.32. Additionally, the applicant should be required to amend or cancel claims such that the reference and the instant application no longer contain claims directed to the same invention using form paragraph 8.27.aia.
Claim(s)  is/are rejected under pre-AIA 35 U.S.C. 102(e) as being anticipated by .
The applied reference has a common  with the instant application. Based upon the earlier effective U.S. filing date of the reference, it constitutes prior art under pre-AIA 35 U.S.C. 102(e). This rejection under pre-AIA 35 U.S.C. 102(e) might be overcome either by a showing under 37 CFR 1.132 that any invention disclosed but not claimed in the reference was derived from the inventor or joint inventors (i.e., the inventive entity) of this application and is thus not the invention "by another," or if the same invention is not being claimed, by an appropriate showing under 37 CFR 1.131(a).
1. This form paragraph is used to reject over a patent or patent application publication with an earlier effective filing date. The patent or patent application publication must have either a common assignee, a common applicant (35 U.S.C. 118 ), or a common joint inventor.
c. a U.S. patent issued from, or a WIPO publication of, an international design application that designates the United States.
See the Examiner Notes for form paragraph 7.12.fti to assist in the determination of the pre-AIA 35 U.S.C. 102(e) date of the reference.
3. Pre-AIPA 35 U.S.C. 102(e) (form paragraph 7.12.01.fti) must be applied if the reference is a U.S. patent issued directly, or indirectly, from an international application filed prior to November 29, 2000. See the Examiner Notes for form paragraph 7.12.01.fti to assist in the determination of the pre-AIPA 35 U.S.C. 102(e) date of the reference.
4. In determining the pre-AIA 35 U.S.C. 102(e) date, consider benefit claims to earlier-filed U.S. provisional applications under 35 U.S.C. 119(e), and to earlier-filed U.S. nonprovisional applications and international applications under 35 U.S.C. 120, 121, 365(c), or 386(c) if the subject matter used to make the rejection is appropriately supported in the relied upon earlier-filed application’s disclosure (and any intermediate application(s)). A benefit claim to a U.S. patent of an earlier-filed international application, which has an international filing date prior to November 29, 2000, may only result in an effective U.S. filing date as of the date the requirements of 35 U.S.C. 371(c)(1), (2) and (4) were fulfilled. Do NOT consider any benefit claims to U.S. applications which are filed before an international application that has an international filing date prior to November 29, 2000. Do NOT consider foreign priority claims under 35 U.S.C. 119(a) - (d), 365(a) or (b), or 386(a) or (b).
In addition, if the reference is a U.S. patent, the patent is only entitled to the benefit of the filing date of a provisional application if at least one of the claims in the patent is supported by the written description of the provisional application in compliance with 35 U.S.C. 112(a). See Dynamic Drinkware, LLC, v. National Graphics, Inc., 800 F.3d 1375, 116 USPQ2d 1045 (Fed. Cir. 2015). U.S. application publications and international publications do not necessarily contain patentable, or any, claims, and are thus not subject to this additional requirement, unless the subject matter being relied upon in making the rejection is only disclosed in the claims of the publication.
5. If the reference is a publication of an international application (PCT), including voluntary U.S. publication under 35 U.S.C. 122 of the national stage or a WIPO PCT publication, that has an international filing date prior to November 29, 2000, did not designate the United States or was not published in English by WIPO, do not use this form paragraph. Such a reference is not a prior art reference under pre-AIA 35 U.S.C. 102(e). The reference may be applied under pre-AIA 35 U.S.C. 102(a) or (b) as of its publication date. See form paragraphs 7.08.fti and 7.09.fti.
7. This form paragraph must be preceded by either of form paragraphs 7.12.fti or 7.12.01.fti.
8. Patent application publications may only be used if this form paragraph was preceded by form paragraph 7.12.fti.
9. For applications with an actual filing date on or after March 16, 2013, that claim priority to, or the benefit of, an application filed before March 16, 2013, this form paragraph must be preceded by form paragraph 7.06.
10. Under 35 U.S.C. 101, two patents are not permitted to issue on identical subject matter. Any claims in the instant application directed to the same invention claimed in the reference should be rejected (or provisionally rejected if the reference has not yet issued as a patent) using form paragraphs 8.30 - 8.32. Additionally, the applicant should be required to resolve any issue of priority under pre-AIA 35 U.S.C. 102(g) and possibly pre-AIA 35 U.S.C. 102(f) using form paragraph 8.27.fti. See MPEP § 804, subsection II.A.
11. Any claims in the instant application that are directed to subject matter that is not patentably distinct from an invention claimed in the reference should be rejected (or provisionally rejected if the reference has not yet issued as a patent) on the grounds of nonstatutory double patenting using form paragraph 8.33 and at least one of form paragraphs 8.34 - 8.39.
Claim  is/are rejected under 35 U.S.C. 103 as being obvious over .
This rejection under 35 U.S.C. 103 might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B); or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement. See generally MPEP § 717.02.
2. This paragraph is used to reject over a reference (patent or published application) with an earlier effectively filed date that discloses the claimed invention, and that ONLY qualifies as prior art under 35 U.S.C. 102(a)(2). If the reference qualifies as prior art under 35 U.S.C. 102(a)(1), then this form paragraph should not be used (form paragraph 7.21.aia should be used instead). The reference must have either a common assignee, a common applicant (35 U.S.C. 118 ), or at least one common joint inventor. This form paragraph should not be used in applications when the reference is not prior art in view of the 35 U.S.C. 102(b)(2)(C) exception.
3. In bracket 3, insert --assignee--, --applicant--, or --joint inventor--.
4. In bracket 4, insert an explanation of obviousness. See MPEP § 2144.
Claim  is/are rejected under 35 U.S.C. 103 as being unpatentable over  as applied to claim  above, and further in view of .
2. This form paragraph must be preceded by form paragraph 7.21.aia.
Claim  is/are rejected under pre-AIA 35 U.S.C. 103(a) as being obvious over .
1. This paragraph is used to reject over a reference (patent or published application) with an earlier filing date that discloses the claimed invention, and that only qualifies as prior art under pre-AIA 35 U.S.C. 102(e). If the reference qualifies as prior art under pre-AIA 35 U.S.C. 102(a) or (b), then this form paragraph should not be used (form paragraph 7.21.fti should be used instead). The reference must have either a common assignee, a common applicant (35 U.S.C. 118 ), or at least one common joint inventor. This form paragraph should not be used in applications when the reference is disqualified under pre-AIA 35 U.S.C. 103(c) as prior art in a pre-AIA 35 U.S.C. 103(a) rejection. See MPEP § 706.02(l)(3).
3. Pre-AIPA 35 U.S.C. 102(e) must be applied if the reference is a U.S. patent issued directly, or indirectly, from an international application filed prior to November 29, 2000. See the Examiner Notes for form paragraph 7.12.01.fti to assist in the determination of the pre-AIPA 35 U.S.C. 102(e) date of the reference.
5. In bracket 2, insert the prior art reference(s) relied upon for the obviousness rejection.


The Secretary shall reserve 1 percent of the amount appropriated under section 5116i 1 of this title for a fiscal year to make allotments to Indian tribes and tribal organizations and migrant programs.
70 percent of such amount appropriated shall be allotted among the States by allotting to each State an amount that bears the same proportion to such amount appropriated as the number of children under the age of 18 residing in the State bears to the total number of children under the age of 18 residing in all States (except that no State shall receive less than $175,000 under this subparagraph).
30 percent of such amount appropriated shall be allotted among the States by allotting to each State an amount that bears the same proportion to such amount appropriated as the amount of private, State or other non-Federal funds leveraged and directed through the currently designated State lead entity in the preceding fiscal year bears to the aggregate of the amounts leveraged by all States from private, State, or other non-Federal sources and directed through the current lead entity of such States in the preceding fiscal year.
The Secretary shall provide allotments under paragraph (1) to the State lead entity.
(2) shall be provided by the Secretary to the State on an annual basis, as described in subsection (b).
Section 5116i of this title, referred to in subsecs. (a) and (b)(1), was in the original "section 210", and was translated as meaning section 209 of Pub. L. 93–247 to reflect the probable intent of Congress and the redesignation of section 210 as 209 by Pub. L. 111–320, title I, §141, Dec. 20, 2010, 124 Stat. 3482 .
A prior section 5116b, Pub. L. 93–247, title II, §203, formerly Pub. L. 98–473, title IV, §404, Oct. 12, 1984, 98 Stat. 2197 ; renumbered §203 of Pub. L. 93–247, and amended Pub. L. 101–126, §§2(a), 3(a)(3), (c)(1), 4(c), 5, Oct. 25, 1989, 103 Stat. 764 , 766-768; Pub. L. 102–295, title I, §122, May 28, 1992, 106 Stat. 198 , authorized Secretary to make grants and authorized appropriations to carry out this subchapter, prior to the general amendment of this subchapter by Pub. L. 103–252, §401(a).
2010-Subsec. (b)(1). Pub. L. 111–320 inserted subpar. headings.
2003-Subsec. (b)(1)(B). Pub. L. 108–36, §123(1), substituted "as the amount of private, State or other non-Federal funds leveraged and directed through the currently designated" for "as the amount leveraged by the State from private, State, or other non-Federal sources and directed through the", "State lead entity" for "State lead agency", and "the current lead entity" for "the lead agency".
Subsec. (c)(2). Pub. L. 108–36, §123(2), substituted "subsection (b)" for "subsection (a)".