669 F.2d 852 (2nd Cir. 1982).
In late 1980, Konami Industry Co., Ltd. developed a video game titled “Scramble,” to which, in early 1981, Stern Electronics, Inc., a video game equipment manufacturer, obtained the exclusive right to distribute in North and South America. Stern quickly met with success after the start of sales on March 17, 1981, selling approximately 10,000 units and generating about $20 million in revenue within two months. In April 1981, the United States Copyright Office granted a copyright to Konami for the audiovisual work “Scramble,” based on video tape recordings of the game submitted by Konami.
Stern brought suit against Omni, and the trial court granted a preliminary injunction enjoining Omni from infringing the Stern’s copyright in “Scramble” and from using the trademark “SCRAMBLE” in connection with video games. Omni appealed, arguing that the sights and sounds of a video game should not be afforded copyright protection because the work is neither “fixed in any tangible medium of expression” nor “original” within the meaning of 17 U.S.C. § 102(a) because the sequence of images and sounds vary depending on the actions taken by the player during each time the game is played.
Midway Manufacturing Co. v. Omni Video Games, Inc.
Midway, the creator of the games Pac-Man, Rally-X, and Galaxian, sued Omni for copyright infringement of these games. During the course of this suit, Midway filed a motion for an ex parte hearing seeking to impound any infringing items in Omni’s possession. A single machine, holding an allegedly infringing version of Pac-Man, was seized from Omni and impounded. However, several days later, the District Court vacated this impound order and not only returned the potentially infringing machine to Omni, but also suppressed this machine from evidence admissible at trial and ordered Midway to pay the attorney’s fees incurred by Omni as they sought return of this machine.
Midway immediately appealed to the 1st Circuit Court of Appeals, requesting reversal of the decision disallowing impoundment of the machine, suppressing it as evidence, and the award of attorney’s fees. However, Midway’s brief and oral arguments failed to address the main legal issue of this case, appellate court jurisdicion under the “collateral order” doctrine.
Under the “collateral order” doctrine, an interlocutory appeal, or an appeal to a higher court before the lower court has issued a final judgment, is rarely allowable. Such an appeal is proper only when (1) the order being appealed is a final order on an issue of law, rather than judicial discretion, (2) the issue is separable from the other issues to be presented at trial, and (3) that the appeal cannot wait until after the final judgment of the court, because irreparable harm would be probable.
Thus, the question in this case was not whether Midway’s arguments had merit, but whether Midway could appeal while its trial was still in progress. The Court of Appeals held that Midway could not appeal the orders of the District Court until after final judgment of the case.
The Court reasoned that the interlocutory appeal was improper because no irreparable damage would be done if Midway was forced to wait until after trial to appeal. At this time, Midway appeared likely to find more evidence of copyright infringement during discovery, therefore the appeal might ultimately be unnecessary. Further, even if Midway were to lose at final judgment, and Omni’s allegedly infringing machine had since disappeared, Midway could still rely on the accounts of the individuals involved in the seizure. These individual accounts, in lieu of the machine itself, would be credible evidence because they were from the neutral agents of the court who had performed the seizure. These agents had also been accompanied by a Midway engineer who could verify the technical details of the machine.
The Court further noted that under 17 U.S.C. s 503(a), the statute authorizing impoundment, a judge “may” order impoundment if he deems it reasonable. The Court interpreted this statute to establish discretionary power on the trial judge to order an impoundment, which would make an interlocutory appeal improper on this issue. Similarly, the Court reasoned that the order to suppress the machine from admissibility at trial, and the award of attorney’s fees to Omni were discretionary and reparable decisions of the District Court. Therefore, the Court denied Midway’s interlocutory appeal, and allowed the trial to resume in District Court.
Thanks to Brian Brisnehan for his assistance in the preparation of this case summary.
The 8th Circuit Court of Appeals in St. Louis will hear arguments at 9 a.m. today in this case that may decide how the Digital Millennium Copyright Act, or DMCA, applies to computer software and the important practice of reverse engineering. As you may recall, the charges center on “bnetd,” free software developed to allow individuals to run servers for hosting online versions of popular Blizzard games such as “Diablo II” and “StarCraft.” Blizzard runs its own online service, Battle.net, for those games, but many people have claimed the service is erratic, buggy, and riddled with players who cheat.
Ahn et al. v. Midway Mfg Co. et al.
I always look forward to reading a video game case that starts with “Plaintiff Philip Ahn is a fourth degree black belt in Tae Kwon Do and has practiced martial arts for approximately twenty years. Plaintiff Elizabeth Malecki holds a degree in ballet and modern dance and is a professional dancer, actress, and aerobics instructor. Plaintiff Katalin Zamiar is a first degree black belt in Karate and has twelve years of experience.” (emphasis added) This is also an interesting case in that it is one of the few that deals with preemption of state law by the federal Copyright Act of 1976 (here, state law rights of publicity get preempted).
The games at issue are Mortal Kombat (MK) and Mortal Kombat II (MKII), and the defendants are Midway (copyright owner in MK and MKII), Williams Electronics (makes the coin-operated versions of MK and MKII), Acclaim Entertainment (developed version of MK and MKII for Nintendo and Sega game consoles), Nintendo of America (game console mfr and game publisher), and Sega of America (then a game console mfr and game publisher), each of which is well known in the industry.
Each plaintiff alleges that, on separate occasions between 1992 and 1993, they were approached by Midway’s agents about the possibility of using their images, names and performances for various characters in the coin-operated arcade format of MK and MKII. Plaintiff Malecki modeled the character Sonja Blade for MK (see above screenshot). Plaintiff Ahn modeled the character Shang Tsung in the coin-operated version of MKII, while plaintiff Zamiar modeled for three characters, Kitana, Mileena, and Jade, all of whom appeared in MKII. Midway videotaped each plaintiff’s movements, digitized the images, and incorporated the digitization into the coin-operated arcade games. The games were successful, and Sega and Nintendo soon released game console versions of MK and MKII.
As is generally the case, each plaintiff signed a release form with Midway at the time of the videotaping. This agreement authorized Midway to film each plaintiff in a martial arts performance in order to use that plaintiff’s name or likeness in connection with the manufacture, design, advertising, promotion, sale, and use of the coin-operated video games. The agreement also made Midway the sole and exclusive owner of all of plaintiffs’ copyrightable expression, defining any such expression as “works for hire,” and permitted Midway, at its sole discretion, to use plaintiffs’ likeness in any copyright obtained in connection with the coin-operated arcade games.
At this juncture in the case, the remaining issues are common law right of publicity, copyright infringement, and common law quantum meruit. The court initially dealt with the common law right of publicity, finding that the right of publicity claim was preempted by federal copyright law. A state law is preempted when 1) the work in which the right is asserted is fixed in a tangible form and falls within the subject matter of copyright under § 102 of the Copyright Act, and 2) the right asserted is equivalent to any of the rights specified in § 106 of the Copyright Act. In this case, plaintiffs’ images were videotaped and, as a result, became fixed in a tangible form (because plaintiffs’ consented to the videotaping, the definition of ‘fixed’ is satisfied). Further, the choreographic works were all original works of authorship, and choreographic works fall within the subject matter of copyright. Finally, applying the § 106 test, the right of publicity is equivalent to one of the rights in § 106 because it is infringed by the act of distributing, performing or preparing derivative works. The right of publicity claim was therefore preempted.
The crux of the plaintiffs’ argument with respect to copyright infringement was that each plaintiff was a joint author of both MK and MKII, and defendants therefore owed an accounting to each plaintiff. Under 17 U.S.C. § 104, a joint work is defined as “a work prepared by two or more authors with the intention that their contribution be merged into inseparable or interdependent parts of the unitary whole.” However, There was never any intent for the plaintiffs to be joint authors, as evidenced by the “work make for hire” clause in the contract, and Midway at all times had control and final authority over what was used in MK and MKII. In addition, the court applied the copyrightable subject matter test, where in addition to the presence of intent, a collaborative contribution will not produce a joint work, and a contribution will not obtain a co-ownership interest, unless the contribution represents original expression that could stand on its own as the subject matter of copyright.
In analyzing the plaintiffs contributions, the court stated that “it is apparent to the court, in viewing videotapes of the actual games, that the superhuman gyrations and leaps high into the air of the characters, including plaintiffs’ characters, are fanciful products of the imaginations of the creators of the source codes.” Thus, while the plaintiffs contributed their images and movements to the creation of the games, it was Midway alone that translated the ideas into a fixed, tangible expression entitled to copyright protection. The court thus denied the claim of copyright infringement.
Lastly, the court swept aside the remaining quantum meruit claim, noting that in Illinois a claim for quantum meruit cannot succeed where there is a valid, enforceable agreement between the parties, which there was in this case.
Accolade, Inc. v. Distinctive Software, Inc.
Accolade was seeking a preliminary injunction again Distinctive Software, which makes this case intriguing because Distinctive is a developer for whom Accolade sometimes acts as the publisher. It’s also intriguing because, unlike early video game copyright infringement cases, it primarily dealt not with the overall look and feel of video games, but rather with the underlying source code.
Distinctive developed the game The Duel—Test Drive II for Accolade, and Distinctive later developed the game Outrun (for publisher Sega) using some of the same underlying “computer codes” as were used in The Duel. There is no dispute as to whether the look and feel of the games were similar—they’re not. The issue was whether Distinctive’s re-use of computer code in Outrun was an infringement of the Accolade’s copyright in The Duel. As part of the contract between Accolade and Distinctive, Distinctive assigned certain copyrights to Accolade, as further discussed below.
There was no question that certain subroutines and computer code, originally used in The Duel, were reused in Outrun. Distinctive argued, however, that only standard libraries and routines were re-used to perform basic functions. Distinctive argued that similar codes are contained in many computer games, since they are necessary to perform functions such as “clearing the screen or operating the joystick.” Distinctive further asserted that these library codes are not game-specific, but were routinely transferred from one computer game to another so the program writer need not duplicate the task of developing them. Distinctive also asserted a fallback position that its licensing agreement with Accolade never contemplated the transfer of copyright in the library codes and, even if it did, the computer codes were mere mechanical devices rather than copyrightable expression, and thus not subject to copyright protection in the first place.
The court noted that, when seeking a preliminary injunction, a showing of a likelihood of success on the merits in a copyright case raises a presumption of irreparable harm. To succeed in showing copyright infringement, Accolade must show that it owned a valid copyright in The Duel, and that Distinctive infringed that copyright by copying protectable material into Outrun. The court cites back to Apple Computers Inc. v. Formula Int’l Inc. for the proposition that all portions of computer programs are the proper subject matter for copyright, even those that communicated only with the machine (computer) itself and not with human users. The underlying subroutines and functions are therefore proper statutory subject matter for copyrights, and are not merely mechanical devices.
Next the court analyzed what, if any, copyrights Distinctive transferred to Accolade. The court determined that the scope of copyright assigned to Accolade by Distinctive depended on the contract language. Specifically, the contract stated, at para. 5.5, that Accolade owns the copyright to the licensed product. “Licensed product” was defined, at para. 1.1, as “the concepts to be designed and implemented by the developer.” The final piece of the puzzle was para. 4.7 of the licensing agreement, which required Distinctive to deliver to Accolade the computer codes underlying the video game. Accolade argued that para. 4.7, in conjunction with paras. 5.5 and 1.1, operated to confer copyright to Accolade of all source code delivered by Distinctive to Accolade. The court disagreed, stating that “our reading of ¶ 4.7 at the present juncture, however, is that it requires [Distinctive] to deliver the underlying codes in addition to the licensed product. Thus, we believe that the licensing agreement transfers to Accolade the copyright to the concept and design of the video game but not the underlying source code.” (emphasis added).
In a last ditch effort, and with a little circular reasoning thrown in for good measure, Accolade argued that Outrun still infringed Accolade’s copyright in The Duel based on the theory that the two games were substantially similar because—yes, you guessed it—Distinctive used the same underlying subroutines and functions in Outrun as were used in The Duel (the same subroutines and functions for which the court just declined to find that Accolade owned the copyright). Needless to say, the court didn’t buy it, and denied Accolade’s motion for a preliminary injunction.
Nota Bene: This case came down to the contract language. While Distinctive won its day in court, had there been a more clearly written contract in the first place, Distinctive might have avoided this conflict altogether, or Accolade could have secured its rights up-front.
Midway Mfg. Co., v. Dirkschneider et al.
In one of the earliest decisions in a video game infringement case, the court issues a preliminary injunction in favor of Midway, to enjoin the defendants from infringing Midway’s copyrights in its coin-operated Pac-Man, Rally-X, and Galaxian electronic video games. The court also ruled in Midway’s favor with respect to Trademark and other Lanham Act claims.
Midway is a designer and manufacturer of coin-operated electronic video games. In the United States, Midway sells its video games to regional distributors who sell the video games to operators. The operators place the machines in arcades and other places for public use. Among other games, Midway owns the U.S. rights to Pac-Man, Rally-X, and Galaxian, which it acquired from Namco. As per the findings of fact in the decision, over 40,000 Galaxian games had been sold since February 1980, generating royalties of over $3.5M to Namco. Similarly, over 25,000 Pac-Man games and 2,500 Rally-X games have generated another $1M in royalties to Namco.
Each defendant makes or sells conversion kits for one or more of the Galactic Invader, Kamikaze III, Mighty Mouth or Rally-X games. Galactic Invader and Kamikaze III are nearly identical to Glaxian. Mighty Mouth is nearly identical to Pac-Man, and the defendants’ version of Rally-X is nearly identical to Midway’s version of Rally-X, and also uses the same name.
The court went through the usual analysis to determine whether a preliminary injunction was proper: 1) Probable success on the merits, 2) Irreparable harm and balancing of equities, and 3) The public interest. In determining success on the merits, the court analyzed, for each game, the validity of the copyright, and copying of protectable material. The court provided a thorough analysis in its determination that the copyrights are valid, especically in view of the fact that the court has no previous video game case law, controlling or otherwise, to draw from.
Midway Mfg. Co. v. Artic. Int’l, Inc., 704 F.2d 1009 (7th Cir. 1983), cert. denied, 464 U.S. 823 (1983).
Artic manufactured a computer chip to speed up the game play in Midway’s Galaxian video games. The Court of Appeals for the Seventh Circuit ruled this infringed on Midway’s copyright. The court ruled that the speeded up version of the video game constituted a derivative work. While Artic argued that speeding up the video game was like speeding up a phonograph record and so should not be considered a derivative work, the court rejected the argument based on the fact that there is a market for speeded up video games while there is no market for speeded up phonograph records. The court did acknowledge that the definition of derivative work had to be stretched to reach this result.
Artic sold circuit boards, manufactured by others, which contain electronic circuits including a microprocessor and memory devices (ROMs). These memory devices incorporate a computer program which is virtually identical to Williams’ program for the Defender game. The result is a circuit board “kit” which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams’ Defender game, including both the attract mode and the play mode. The play mode and actual play of Artic’s game, entitled “DEFENSE COMMAND,” is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player’s spaceship are identical in shape, size, color, manner of movement and interaction with other symbols. Also, the attract mode of the Artic game is substantially identical to that of Williams’ game, with minor exceptions such as the absence of the Williams name and the substitution of the terms “DEFENSE” and/or “DEFENSE COMMAND” for the term “DEFENDER” in its display.
Specifically, Artic argued that there is a lack of “fixation” because the video game generates or creates “new” images each time the attract mode or play mode is displayed, notwithstanding the fact that the new images are identical or substantially identical to the earlier ones. The court gave little weight to this argument, stating that the fixation requirement is met whenever the work is “sufficiently permanent or stable to permit it to be * * * reproduced, or otherwise communicated” for more than a transitory period, and that the original audiovisual features of the DEFENDER game repeat themselves over and over. The court also noted the unnsuccessful results of Artic’s same argument in other cases.
Artic also argued that the player’s participation withdraws the game’s audiovisual work from copyright eligibility because there is no set or fixed performance, and the player becomes a co-author of what appears on the screen. The court rejected this argument as well, noting that although there is player interaction with the machine during the play mode which causes the audiovisual presentation to change in some respects from one game to the next in response to the player’s varying participation, there is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and many aspects of the display remain constant from game to game regardless of how the player operates the controls. In addition, there is no player participation in the attract mode which is displayed repetitively without change.
The court went on to reject Artic’s additional arguments in its defense, namely that Williams was trying to copyright a utilitarian object, and that copyright infringement only occurs when the source code is copied, not when the object code is copied. The court did, however, reverse the finding of willful infringement and remanded for further proceedings on that issue.
MARVEL ENTERPRISES, INC., et al.
The case is in the early stages, and the present ruling is on a motion to strike and motion to dismiss various claims. Marvel contends that NCSoft marketed, distributed and hosted a computer game that allows players to play online and create characters that are virtually identical in name, appearance, and characteristics to characters owned by Marvel. Marvels allegations include (1) direct, (2) contributory, and (3) vicarious copyright infringement under 17 U.S.C. § § 101, et seq., (4) direct, (5) contributory, and (6) vicarious registered trademark infringement under 15 U.S.C. § 1114, (7) direct, (8) contributory, and (9) vicarious common-law trademark infringement under 15 U.S.C. § 1125, (10) intentional interference with actual and prospective economic advantage, and (11) declaratory relief.
The motion to strike was granted-in-part, because the allegedly infringing works depicted in the exhibits and referred to in the pleadings were created by Plaintiffs themselves.
The motion to dismiss was granted as to Plaintiffs’ 4th, 5th, 6th, 8th, 9th, and 11th causes of action (the trademark-related issues, as well as the DJ claim).
Even though the trademark claims were dismissed, this will be a case to watch on the copyright side of the aisle, given that the scope of protection in copyrightable characters with respect to video games will inevitably be an issue. The specific Marvel characters involved inclue Captain America, Wolverine, Incredible Hulk, Magneto, The Thing, Phoenix, and Iron Man.
We’ll keep you posted as this case progresses.
ATARI, INC., Plaintiff, v. JS & A GROUP, INC., Defendant. 597 F.Supp. 5 (N.D. Ill. 1983) This appears to be the first case to analyze and consider 17 U.S.C. sec. 117, which provides that owners of copies of computer software can make copies of the software for “archival” purposes.
Atari manufactures and sells a home computer video game system, the “2600”, and game cartridges such as “CENTIPEDE” and “PAC-MAN” for use in the 2600. In order to play the games at home, the consumer connects the Atari computer to a television set and plugs his controls, or “joysticks”, into the computer. A game cartridge, which is usually purchased separately, is then inserted into the computer. The computer program in the cartridge causes the audiovisual aspects of the game to emanate from the television. Atari has copyrighted its video games as audiovisual works. In addition, it is seeking to register a copyright of the computer program for the CENTIPEDE game.
JS&A is a retailer of electronic products. It began to market its PROM BLASTER, a device for the duplication of those video games which are compatible with the Atari 2600 home computer. The PROM BLASTER has two slots, one for a 2600-compatible cartridge and one for a blank cartridge sold by JS&A for $10. In the words of JS&A’s advertisements, “[y]ou simply plug in your Atari or Activision cartridge in one slot and a blank cartridge in another, press a button and three minutes later you’ve created an exact duplicate.” JS&A markets the PROM BLASTER primarily as a means of making “back-up” copies of 2600-compatible games.
The court finds that JS&A’s PROM BLASTER does not make a backup copy to protect against “mechanical or electrical failure,” as is required by section 117, but instead protects against accidental physical dangers due to the nature of the unerasable and nonreprogrammable ROM inside each cartridge. This danger is no different than accidentally shredding a handwritten literary work, and is thus not protected under section 117. JS&A also argued that since they offered a series of 9 games that they permitted to be copied and sold without restriction, the device had substnatial noninfringing use (the court didn’t buy it, given the massive number of other games on the market for the Atari 2600 game console). There being no other substantial noninfringing use, the court grants Atari a preliminary injunction enjoining JS&A from selling the PRO BLASTER. Note that the court in Vault v. Quaid (case summary to follow later) declined to follow the reasoning in this case.
History of Video Game Case Law – New Every Tues.!
As you may (or may not) be aware, there are well over 30 major cases that deal with intellectual property protection of video games, and that’s just patents and copyrights. We have dissected these cases and, over the next few months, will be publishing an analysis of each case. New case analysis posts will be up every Tuesday, and the title will begin with “Case:”. You can also subscribe to our Atom/RSS site feed for automatic updates.
While RADgames patents are primarily directed to board games, the claims (at least on their face) are not all limited to physical creations, and could also apply to versions of the game implemented as a video game or computer game.
The case is Hasbro, Inc. v. Radgames, Inc., case no. 1:05-cv-02324-GEL, U.S. District Court for the Southern District of New York.


X. WHERE CAN I VIEW THE FILINGS IN THE DUNCAN V. BECERRA LAWSUIT?
All case filings can be viewed online at http://michellawyers.com/duncan-v-becerra/.
• A copy of the Court’s June 2017 order granting a preliminary injunction can be viewed at: http://michellawyers.com/wp-content/...Injunction.pdf.
• A copy of the Court’s March 29, 2019, order granting summary judgment can be viewed at: http://michellawyers.com/wp-content/...ntiffs-MSJ.pdf.
• A copy of the Court’s April 4, 2019, order staying the enforcement of the order granting summary judgment can be viewed at: http://michellawyers.com/wp-content/...ing-Appeal.pdf.
XI. WHO IS RESPONSIBLE FOR LITIGATING DUNCAN V. BECERRA?
The California Rifle & Pistol Association, with support from the National Rifle Association, filed this lawsuit after hearing the fear and outrage from its members who were being forced by the passage of Proposition 63 and Senate Bill 1446 in 2016 to either surrender their “large-capacity” magazines to the government or become criminals.
1 See Cal. Penal Code §§ 30515(a)(2), 30515(a)(5).
2 See Cal. Penal Code § 32420 (repealed 2016).
3 Cal. Penal Code § 32310(a). For the purposes of this restriction, “manufacturing” includes “both fabricating a magazine and assembling a magazine from a combination of parts, including, but not limited to, the body, spring, follower, and floor plate or end plate, to be a fully functioning large-capacity magazine.” Cal. Penal Code § 32310(b).
4 Cal. Penal Code § 32310(c).
5 Cal. Penal Code § 32310(c).
6 Cal. Penal Code § 32390; See also Cal. Penal Code § 18010(b).
Last edited by corky43; 04-11-2019 at 11:45 AM.


text:
c1991. 1st ed. H. Holt, 1 v. (unpaged) : col. ill. ; 26 cm.
1997, c1991. First board book edition. Henry Holt and Company, 1 v. (unpaged) : col. ill. ; 18 cm.
1992, c1991. 1st big book ed. Henry Holt, 1 v. (unpaged) : col. ill. ; 46 cm.
track 3 (3:57) : read in Spanish with no page-turn signals.
Carle, Eric,illustrator., Carle, Eric.|Illustrator, Paltrow, Gwyneth,1972-|Narrator, Sananes, Adriana.|Narrator, hoopla digital.
hoopla:MWT11824068|eAudiobook|Audio Books|Unabridged.|English|Macmillan Audio ,|2010.|1 online resource (1 audio file (12 min.)) : digital., ils:.b1113429x|Book|Books|1st ed.|English|H. Holt,|c1991.|1 v. (unpaged) : col. ill. ; 26 cm., ils:.b14675110|Book|Books|First board book edition.|English|Henry Holt and Company,|1997, c1991.|1 v. (unpaged) : col. ill. ; 18 cm., ils:.b15648801|Book|Books|1st big book ed.|English|Henry Holt,|1992, c1991.|1 v. (unpaged) : col. ill. ; 46 cm., ils:.b19045086|CD|Audio Books|Unabridged.|English|Henry Holt and Co.,|, p2007.|1 sound disc (12 min.) : digital ; 4 3/4 in. + 1 pbk. (unpaged : col. ill. ; 26 cm.), ils:.b20603952|Book|Books|1st My first reader ed.|English|Henry Holt,|2010.|33 p. : col. ill. ; 24 cm.
Polar bear, polar bear, what do you hear? / by Bill Martin, Jr. ; pictures by Eric Carle, Polar bear, polar bear, what do you hear? [big book] / by Bill Martin, Jr. ; pictures by Eric Carle, Polar bear, polar bear, what do you hear? [compact disc] / Bill Martin Jr., Polar bear, polar bear, what do you hear? [electronic resource] / Bill Martin Jr.

matches: v. v. v. v. v. v.


§ 265.1 Authority, purpose, and scope.
§ 265.2 Delegation of functions generally.
§ 265.3 Board review of delegated actions.
§ 265.4 Functions delegated to Board members.
§ 265.5 Functions delegated to Secretary of the Board.
§ 265.6 Functions delegated to General Counsel.
§ 265.7 Functions delegated to Director of Division of Banking Supervision and Regulation.
§ 265.8 Functions delegated to the Staff Director of the Division of International Finance.
§ 265.9 Functions delegated to the Director of Division of Consumer and Community Affairs.
§ 265.10 Functions delegated to Secretary of Federal Open Market Committee.
§ 265.11 Functions delegated to Federal Reserve Banks.
12 U.S.C. 248(i) and (k).
56 FR 25619, June 5, 1991, unless otherwise noted.


text:
In order to find that there was an implied contract for use of a patent, there must be use with patentee's agent and agreement to pay something therefor, United States v. Berdan Fire Arms Company, 156 U. S. 552, and these element may be collected from conduct of the parties, even if there are no explicit declarations.
Where the facts show that the patentee consented that the government use his invention, and the proper officer of the department in which it was used have stated that there is a claim for royalties if the patent is a valid one, the claim is founded on contract, and the Court of Claim has jurisdiction.
The intention to plainly do a wrongful act by deliberately taking the property of another without compensation will not be imputed to officers of the United States without the most convincing proof.
The excellence of an ordnance invention is testified to by it use by the government in guns for the national defense.
In this case, held that the De Bange gas check for large gun is a device of excellence, that the patents therefor are valid, and the gas checking device used by the government is an infringement thereof.
The law secures the patentee against infringement by a use in other forms and proportions than those specifically described in the claim.
This Court will not direct the Court of Claims to certify evidence, and not its conclusions from the evidence. The rule is that the finding must be of the facts established by the evidence.
This Court, in appeals from the Court of Claims, can only act upon the record, and a finding of that court that a definite amount of compensation is due from the government for use of a patent, to which no objection is taken or exception reserved, is as finally determinative of the matter as a special verdict of a jury. The evidence cannot be certified up so as to make such finding reviewable by this Court. United States v. New York Indians, 173 U. S. 464, followed, and Ceballos & Co. v. United States, 214 U. S. 47, distinguished.
The facts, which involve the jurisdiction of the Court of Claims of claims of patentee of the De Bange gas check for use of that invention by the government, whether there was such use, and what the proper compensation should be therefor, are stated in the opinion.
This suit is for royalties alleged to be due for the use by the government of a certain patented invention known as a "gas check" or "obturator" -- a device applied to breech-loading cannon to prevent the escape of gas.
The Court of Claims rendered judgment against the United States for the sum of $136,000. Both parties appeal, the United States contending against any judgment, the claimant contending for the recovery of a larger sum. No further distinction is necessary to be observed between the appeals. The discussion of the case will dispose of both.
set out in the findings did not constitute an implied contract in fact, as distinguished from a tort, and that therefore the Court of Claims had no jurisdiction of the case.
"The findings disclose an invitation to present the details of the patent to the defendant [the government], its examination by a board of officers appointed to investigate such inventions, and its final use without the slightest claim of ownership. Nothing appears to show an intention to dispute claimant's title to the patent, hence an implied contract arose to pay for such use."
In discussing the correctness of these conclusions, we necessarily assume the validity of the patent, its utility and use by the government, the question being only for the present whether such use was a trespass upon the rights of the claimant, or in concession of such rights and of an obligation to pay for them.
The findings lack, and, it may be, necessarily lack, definiteness. They trace the history and progress of the invention of gas checks from an early period to the culmination in the patent to Colonel De Bange, an officer of the French army, in 1884, granted upon an application made in 1883. It immediately attracted the notice of American army and naval officers, and received favorable commendation in ordnance notes.
"or what other method, if any, should be adopted for the manufacture of heavy ordnance adapted to modern warfare for the use of the Army any Navy of the United States."
The board visited the claimant's works at Paris on June 29, 1883.
"In the official report of this board, reference is made to a visit to the claimant's works at Paris, France, on August 29, 1883, and to the inspection by said board of the De Bange system of ordinance. In the said report of said board is the following:"
" Breech fermeture. -- All the French guns are breech-loading, and are fitted with the interrupted screw system, as modified by Colonel De Bange to suit his gas check."
" Gas check. -- The De Bange gas check is universally employed."
"Sir: I have the honor to forward herewith a De Bange 'obturator,' which was kindly presented on request by the French minister of war."
"I am, very respectfully, your obedient servant,"
"Lt. Comdr., U.S. Navy, Naval Attache"
"U.S. Navy, Chief of Bureau of Navigation"
In 1884, the ordnance officers of the United Stated, after experimenting with the De Bange device, adopted it for heavy ordnance (5-inch caliber and upward), and have used no other device since.
"The United States government [we quote from the findings] has never disputed the title of claimant's assignor, Colonel De Bange, as inventor of the said invention, but, on the contrary, the said invention has, ever since its adoption, been known in the service of the United States as the 'De Bange gas check,' and is described by that name in the official reports of the Secretaries of War and of the Navy."
The findings contain certain correspondence which is relied on by the government to sustain its contention, and, as it is not possible to condense it, it is given in full.
"Colonel De Bange to H. E., the Minister Plenipotentiary of the"
"Mr. MINISTER: In order to respond to the desire expressed by your excellency in the letter which you have done me the honor to address to me, I add some details to my previous observations."
the truth of my assertions; they have under their eyes, on trial, guns which speak for themselves."
"This is not the first time that I have had to complain of my idea's being borrowed, without my knowledge, in France or abroad. The English government particularly had taken up my system, and, without my having demanded anything, had offered me twenty thousand pounds sterling to indemnify me. I refused this offer, it is true, but, because, as a French officer, I ought not to aid in the arming of a power which I do not consider as friendly. In part, deprived of my assistance, England has copied me badly, and possesses but a moderate artillery."
"In any case, I appeal to the sentiments of equity of the government of the United States, convinced that it will recognize easily the justice of my claim."
The naval attache at London suggested in a communication to Mr. Reid, our Minister there, that Colonel De Bange's letter be forwarded to the Navy Department. The Minister, however, referred it to the Secretary of State.
"Colonel De Bange to Monsieur Benjamin F. Tracy, Secretary"
"of the Navy at Washington"
"Mr. SECRETARY: Some months ago, I addressed the United States Minister at Paris, verbally and by writing, several remarks on the subject of loans which I had made of my invention to the Departments of War and of the Navy; finally, as I have undertaken to write to you directly, I now have the honor to lay before you the following: "
"I had taken out letters patent, which treated of artillery in the United States, one number, 301,220, relative to l'obturation of guns, and of principal importance; the other number, 331,618, relative to the carriage."
"Furthermore, I have seen at Paris many of your officers, to whom I furnished without reserve all the information which they have asked of me."
"Under these circumstances, I hope that, if the government has desired to utilize my inventions, it will inform me; there has been no defect, and I have learned from a reliable source that my systems was copied, unknown to me, by the Departments of War and of the Navy, be it under the disguise of an improvement or be it openly."
"I regret that this has occurred, but in any case I consider that an indemnity is due me. If you will have the kindness to notify the government of my claim, I am confident that it will see that justice is accorded me in the indemnity to which I believe myself to be entitled."
"Please accept, Mr. Secretary, the expression of sentiments of highest consideration, with which I am"
"Respectfully returned to the honorable Secretary of the Navy."
resembles in certain features that described in United States patent No. 301,220, issued to Col. De Bange. It also differs from it materially in particulars which are original in this bureau."
"I am not in position to give an opinion as to the question of infringement, and have to suggest that the applicant refer the matter to the Court of Claims."
"The bureau will note for the information of the applicant that there are no funds appropriated or available for the payment of any claim that might be allowed by the Court of Claims, and that it will be necessary for the applicant to go to Congress for relief in the event of a decision being obtained which will warrant such action."
"I have the honor to acknowledge the receipt of your communication of the 20th ultimo, enclosing copies of correspondence relating to a claim of Colonel De Bange, a retired officer of the French army, residing in Paris, France, who alleges the use by this government of certain inventions patented by him in guns and gun carriages."
"In reply, I have to state that the Chief of the Bureau of Ordnance, in this Department, to whom the communication and accompanying papers were referred, reports as follows:"
"The bureau has not manufactured, and is not using, any gun carriages which contain principles which could be held as infringing any claims described in U.S. patent No. 331,618."
features that described in U.S. patent 301,220, issued to Colonel De Bange. It also differs from it materially in particulars which were original in this bureau."
"In view of the statement made by the Chief of the Bureau of Ordnance, there appears to be no proper ground for the claim of Colonel De Bange."
"Acting Secretary of the Navy"
"THE HONORABLE THE SECRETARY OF STATE"
On January 31, 1894, the claimant, by its attorneys, addressed substantially similar letters to the Secretary of War and the Secretary of the Navy, stating its claim for the use of its patented invention and requesting payment for the use of it. The letters described and extolled the device, and stated that they "deemed it expedient to take a low average price and apply it to all guns." They fixed such price at $200 per gun.
"As the status of the case has not been changed since the date of the Department's letter above mentioned, and as the matter has been previously disposed of by the Department, no further consideration of the case appears to be required."
"Respectfully returned to the Department."
is valid, no royalties should be paid. See Court of Claims Reports, p. 334, vol. 23, 1887-88. If, however, as the bureau believes to be the case, the above-mentioned patent is only valid so far as it covers improvements on the De Bange patent (No. 301,220, of July 1, 1884), then, so far as the latter patent is valid, the within claim for royalties, in the bureau's opinion, is a proper one, and would be maintained by the courts."
"It must be noted, however, that, until recently, there has been no authority of law for the payment of royalties out of the naval appropriations, and the manufacture of most of the gas checks in question had been completed prior to the legislation giving such authority. Moreover, the bureau is of opinion that the Davis patent (No. 318,093, of May 19, 1885) covers real and important improvements, without which it is doubtful if the De Bange system would have been adopted for United States naval guns, and consequently it will be necessary to decide as to the relative values of the device in its original and improved forms. The fact that practically the same gas check is in use in all United States Army guns of recent construction, and is being applied to guns now being made by the Bethlehem Iron Company, under contract with the War Department, should also be considered, since independent action on the part of the Navy Department might easily be against the interests of the government."
"It is therefore recommended that an investigation be made in regard to the De Bange patent, and if this patent is concluded to be valid, that the War Department be consulted as to whether a definite sum, to be fixed upon either by a board or in some other way, should not be offered the claimants for the right on the part of the government to use the device in question on all its guns."
"Chief of Bureau of Ordnance "
"The Department has carefully considered the questions presented in the brief filed by you, as well as in former correspondence, relative to the matter of the claim of the Societe Anonyme des Anciens Etablissements Cail for compensation for the use by the United States of a gas check invented by Col. Charles T. W. v. De Bange, of the French army."
"It appears that the matter is now in such a condition that it will in all probability involve not only questions arising under the patent issued to Colonel De Bange, but also those growing out of the claims and affecting the rights of other patentees. Under these circumstances, the Department is of opinion that the full consideration and determination of these questions can be more certainly and equitably reached, and the rights of all the parties concerned, as well as the government, more definitely ascertained and assured, through the medium of a court of justice. It is therefore suggested that the necessary proceedings for the consideration and adjustment of the matter by the Court of Claims be instituted."
"Attorneys at Law, Washington, D.C."
The final action of the War Department was communicated to claimant's attorneys in a letter dated January 14, 1895, in which the language and suggestion of the Secretary of the Navy were adopted substantially verbatim.
"there must be (1) a use of it with the patentee's assent, and there must also be (2) an agreement or meeting of minds on the part of the patentee and on the part of the user as to compensation for the use, even though the amount of the compensation be not fixed."
These elements, it is insisted, were present in the Berdan case, which we have seen was relied on by the Court of Claims; they are, it is further insisted, absent in the case at bar.
But these elements do not have to appear by the explicit declaration of the parties. They may be collected from their conduct. The alternative of a contract is important to be kept in mind. The officers of the government knew of the De Bange invention, and were aware of its great importance, and the purpose to deliberately take property of another without the intention that he should be compensated -- in other words, to do plainly a wrongful act -- cannot be imputed to them without the most convincing proof. Such proof does not exist in the present case. On the contrary, the record shows that compensation was contemplated. There was doubt as to the extent of it, because there was doubt as to how far the devices used were attributable to or belonged to De Bange, or whether they constituted an infringement of his patent, and therefore there was hesitancy and doubt, not as to compensation, but as to the amount and extent of it.
"While the findings are not so specific and emphatic as to the assent of the government to the terms of any contract, yet we think they are sufficient. There was certainly no denial of the patentee's rights to the invention, no assertion on the part of the government that the patent was wrongfully issued, no claim of a right to use the invention regardless of the patent, no disregard of all claims of the patentee, and no use in spite of protest or remonstrance. Negatively at least, the findings are clear. The government used the invention with the consent and express permission of the owner, and it did not, while so using it, repudiate the title of such owner."
Like comment may be made of the facts in the case at bar. It is true that the letter of William F. Folger, Chief of the Bureau of Ordnance, stated that, while the gas check used by the government resembled in certain features De Bange's gas check, it differed from it materially in particulars which were original in the bureau. But this was not a denial of the use or the utility of De Bange's invention. Whether there was infringement, the officer did not decide, but suggested that the "applicant refer the matter to the Court of Claims." Subsequently the Acting Secretary of the Navy did deny infringement. But that position was abandoned, and the Secretaries of War and the Navy "suggested that the necessary proceedings for the consideration of the adjustment of the matter by the Court of Claims be instituted." There were parallel circumstances in the Berdan case.
for the courts to decide. It is true there was no assertion of right against the Berdan device in consequence of the difference between it and the device used by the government as, it may be said there was in the case at bar by the letter of Admiral Ramsey of September 3, 1891. But the position taken in that letter was, as we have seen, abandoned, and it was declared that, so far as the De Bange patent was valid, its claim for royalties was, in the opinion of the Bureau of Ordnance, a proper one, and would be sustained by the courts. This was in 1894. Prior to that time and afterwards, the government continued to use the device. We think the Court of Claims had jurisdiction.
The government contends that it has not infringed the De Bange patent. Infringement is a question of fact, and, as an aid to its solution, courts are furnished usually with an expert comparison of the contending devices, their identity or difference of construction, and modes of operation. This record is destitute of such testimony. The government contends for the very narrow construction of the patent based on its claims and the prior art. The only proof of the prior art, however, is a reference to thirteen or fourteen patents by number and patentee, some of which are English, some French, and some American. The only explanation of them is in the argument of counsel and an exhibition of the patents. It is very doubtful if we may take notice of even the American patents, more doubtful if we may of the foreign ones. We, however, have considered counsel's explanation of them. They reveal nothing material to be considered that the findings of the Court of Claims do not show of the prior art and the progress, from its failure to the success of the De Bange invention -- a success, it may be conceded, that availed itself of all that the prior art demonstrated, but went beyond it to the fulfillment that it had not achieved.
guns all could see, and what a device, to be successful, must do, but the world struggled a long time with the problem, and that problem was to find something which would stand the intense heat generated and the great force caused by the explosion of the powder in a high-power gun, and the backward escape of the resultant gas under the enormous pressure exerted, and this not in one service of the gun, but in many services. The experiments are detailed in the findings. Metallic cups were tried, and paper cuts. As early as 1858, India rubber was suggested. Its elasticity, it was thought, would afford all that was necessary for a complete automatic obturation, the gas by its expansion "to seal its own escape."
"is subject to a pressure of from 30,000 to 40,000 pounds per square inch, to very high temperatures, to the effects of corrosive gases, and the effects of rapid and violent shocks."
We need not, however, dwell longer on the excellence of the invention. The government has testified to its excellence by using it in the guns intended for the national defense.
But it is contended that the claim of the patent is for a specific combination of elements, and that that combination of elements is not used by the government.
This contention is based upon what is considered to be the proper construction of Claim 1 of the patent, a strict construction being urged of it -- indeed, as we understand the argument, the claim must be confined to the specific forms of its elements, giving the widest latitude to imitation.
"I have devised a system of packing placed in advance of the plug, and which is expanded by the force of the explosion of the powder to make a tight joint to prevent the leakage age of gas."
He declares the drawings form a part of the specification, and represent what he considers the best means of carrying out the invention. It is only necessary to give Figures 1, 2, 6, and 7.
the parts unlocked. . . . Figs. 6 and 7 represent the packing ring detached. Fig. 6 is a face view, and Fig. 7 a section in the plane of the axis."
"A liberal hole in the line of the axis of the screw plug B carries a stout sliding pin, N at the extreme front of which is a stout head, N'. The portion of the body adjacent to the head N' is slightly enlarged. The head N' is adapted to receive the force of the powder at the discharge. At the moment of the discharge, this head moves backward, compressing a relatively soft and expansible packing ring, M, behind it. Certain portions of this ring will be distinguished, when necessary, by additional marks, as M' M2. The body M' of this packing is of asbestos saturated with tallow, and affords a sufficiently yielding mass with the required capacity for enduring heat and for withstanding the very strong compressive force to which it is subjected by the discharge. It is enclosed between two thin shells, M2 M2, of copper, one fitting the body M' on the inner and the other on the outer side, and nearly incasing the entire packing. Both the body M' and the copper M2 are then enclosed between two strong shells of brass, M3 M3. The entire packing thus made is adapted to maintain its form, but to allow a small amount of radial expansion sufficient to pack the joint tightly against the escape of gas. This expansion is due to two causes -- the tapering form of the front end of the pin N, which acts on the interior of the packing, and the powerful compression received from the head N'. The expansion from one or both causes is sufficient to press the exterior of the copper M2 tightly against the interior of the gun, thus effectually preventing any leakage of gas."
arranged between the head N' and the inner end of the plug, in combination with each other and with the gun A, arranged as shown, to allow the pin to be driven rearward and compress the packing, as herein specified."
It will be observed, therefore, that De Bange declared that what he devised was a "system of packing" which, by the force of the explosion of the powder, is expanded to make a tight joint to prevent the leakage of gas. The mechanical parts are but aids to this result, securing in place the packing and enabling its qualities to operate, enabling it to maintain its form, but to allow radial expansion sufficient "to pack the joint tightly against the escape of gas." This expansion has also the effect of pressing "the copper (M2)" against the interior of the gun, and cooperates to prevent the leakage of gas.
That this packing constitutes the very essence of the invention is declared in all of the literature on the subject and recognized in all of the government publications. The government now contends for a limitation of it, and insists that it consists of "a yielding packing M," exactly as described, although the description is declared by De Bange to represent "the best means of carrying out his invention," and he declares also that "modifications could be used in the forms and proportions."
We cannot, therefore, assent to the contention of the government, and, in rejecting it, we do not render "the claim elastic and indefinite where it should be certain." We preserve that which was declared to be and which has always been recognized to be the invention, and by those competent to declare, whose duty it was to comprehend and estimate, not only the result achieved, but by what achieved.
rings." Another description speaks of "a metallic split ring." These are but details. As said by the Court of Claims, through Booth, J., "The invention described by the language of the claim was the yielding pad of asbestos and tallow." And this, the learned judge also said, predominates as the one "central idea" in every description of the patent in either the specifications or claim.
"the necessary expansion, indispensable to forward the operation of both the Davis and Gerdom patents. The United States used the Gerdom patent and paid him substantial royalties for its use."
"does not recite among its elements the materials whereof the envelop [of the pad] and rings are made. . . . It is, on the contrary, obvious that any suitable material may be used for these subsidiary parts."
It is conceded that the pliable copper envelop (M2) may be properly regarded as a part of the "yielding packing." The patentee so states, but he does not say that the "strong shells of brass M3 M3 are parts" of it.
It would indeed be arbitrary, as said by claimant, to read into the claim the specific metal of which those shells are composed "for no other purpose than to render it [the claim] worthless."
We have seen De Bange describe what he conceived to be the best form of his invention, and contemplated that it could be represented in other forms and proportions. This, however, was unnecessary, for the law would secure him against imitation by other forms and proportions. Winans v. Denmead, 15 How. 330; Hotchkiss v. Greenwood, 11 How. 248, 52 U. S. 265; Western Electric Co. v. La Rue, 139 U. S. 601, 139 U. S. 608.
We think, therefore, that the Court of Claims rightfully decided the question of infringement against the government.
The cross-appeal of claimant is directed to the question of damages.
"There is no testimony in the record upon which the quantum of damages can be predicated. The measure of damages would be the value of the device to the defendants. Following the precedents heretofore established, the case will stand upon the docket, with leave to furnish testimony upon this point. "
On the 20th of May, 1909, judgment was rendered for claimant in the sum of $136,000. Each party moved for an amendment to the findings, which were overruled in part and allowed in part. The former findings were withdrawn and amended findings of fact filed. No exception appears to have been taken to this action. Indeed, the record does not furnish us with a comparison between the findings which were withdrawn and those filed. There is nothing to show upon what the court's ruling was invoked.
A motion was presented to this Court April 25, 1910, to remand the case to the Court of Claims, and that that court be instructed to find and certify as matters of fact, in addition to the facts found, in regard to the cost of the guns in which the De Bange obturators were used, the amount the government paid or contracted to pay for patented improvements in breech-loading mechanism for ordnance, and whether there appears in the record the testimony of experts as to the value of the De Bange device, or what would be a reasonable compensation for its use, and, if so, to state the amounts of such estimates.
It was further moved that the Court of Claims be instructed to strike out certain matters in the findings which were described to be evidentiary. The motion was postponed to the hearing, and is now to be considered. The motion is, in effect, for a direction to the Court of Claims to certify the evidence to this Court, and not its conclusions from the evidence. This is clearly in contravention of the rule of this Court which requires the record on appeal from the Court of Claims to contain a finding by the court "of the facts in the case established by the evidence in the nature of a special verdict, but not the evidence establishing it."
record, and that shows a finding of the court upon the question of compensation, to which finding there was no objection taken nor exception reserved. The finding determines the matter, being in the nature of a special verdict of a jury. United States v. New York Indians, 173 U. S. 464.
Ceballos v. United States, 214 U. S. 47, is not applicable. There was a contract of which there could be no dispute, and therefore a motion to embrace it in the record from the Court of Claims was granted and the case reviewed in the light thereof.
The motion to remand the case is therefore denied.

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§ 175.112 Specific applicability for individual parts.
§ 175.115 Applicability to offshore supply vessels.
§ 175.118 Vessels operating under an exemption afforded in the Passenger Vessel Safety Act of 1993 (PVSA).
§ 175.120 Vessels on an international voyage.
§ 175.200 Gross tonnage as criterion for requirements.
§ 175.400 Definitions of terms used in this subchapter.
§ 175.600 Incorporation by reference.
§ 175.800 Approved equipment and material.
§ 175.900 OMB control numbers.
46 U.S.C. 2103, 3205, 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. App. 1804; Department of Homeland Security Delegation No. 0170.1; § 175.900 also issued under 44 U.S.C. 3507.
CGD 85-080, 61 FR 947, Jan. 10, 1996, unless otherwise noted.


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COUNCIL 13 AFSME, et al., Defendants.
This is a pro se employment discrimination case. The plaintiff, Marilyn Marie Smith, claims that the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Smith has been granted leave to proceed in forma pauperis. For the reasons set forth below, we recommend that the matter be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The complaint itself in this case is vague and incoherent. (Doc. 1). Taken together with two subsequent letters submitted by the plaintiff, Smith appears to assert Title VII employment discrimination claims related to her employment at Harrisburg State Hospital between 1999 and 2006. (Doc. 6; Doc. 7). Neither the complaint nor her supplemental letter submissions allege that she has exhausted administrative remedies.
A plaintiff proceeding in forma pauperis is subject to 28 U.S.C. § 1915(e)(2), which provides that a court “shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “The legal standard for dismissing a complaint for failure to state a claim under § 1915(e)(2) is the same as that for dismissing a complaint pursuant to Fed.R.Civ.P. 12(b)(6).” Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam). Rule 12(b)(6), in turn, authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the well-pleaded allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Exhaustion under Title VII requires both consultation with an agency counselor and filing a formal EEOC complaint within the required time. Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1977); see also Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 115 n.14 (3d Cir. 2003). The aggrieved person is not permitted to bypass the administrative process. Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976). The jurisdictional prerequisites to the filing of a suit under Title VII are the filing of charges with the EEOC and the receipt of the notice of the right to sue letter. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798- 99 (1973); Ostapowicz, 541 F.2d at 398; Tlush v. Mfrs. Res. Ctr., 315 F.Supp.2d 650, 655 (E.D. Pa. 2002) (attainment of a right-to-sue letter from the EEOC is a condition precedent to filing Title VII suits).
Because the complaint does not allege the exhaustion of administrative remedies before the EEOC or PHRC, we recommend that the action be dismissed with leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).


The Solicitor General argues, largely on the basis of the foregoing cases emphasizing the deference due Congress in the area of military affairs and national security, that this Court should scrutinize the MSSA only to determine if the distinction drawn between men and women bears a rational relation to some legitimate Government purpose, see United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166"]449 U.S. 166 (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981); 449 U.S. 166 (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981); Craig v. Boren, 429 U.S. 190 (1976); Reed v. Reed, supra. [n7] We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further "refinement" in the applicable tests as suggested by the Government. Announced degrees of "deference" to legislative judgments, just as levels of "scrutiny" [p70] which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case, the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision "military" on the one hand, or "gender-based," on the other, does not automatically guide a court to the correct constitutional result.
Congress' decision to authorize the registration of only men, [p79] therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently, but also closely, related to Congress' purpose in authorizing registration. See Michael M., 450 U.S. at 450 U.S. 472"]472-473 (plurality opinion); 472-473 (plurality opinion); Craig v. Boren, 429 U.S. 190"]429 U.S. 190 (1976); 429 U.S. 190 (1976); Reed v. Reed, 404 U.S. 71 (1971). The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops. As was the case in Schlesinger v. Ballard, supra, "the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated" in this case. Michael M., supra, at 469 (plurality opinion). The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.
1. The President did not seek conscription. Since the Act was amended to preclude conscription as of July 1, 1973, Pub.L. 92-129, 85 Stat. 353, 50 U.S.C.App. § 467(c), any actual conscription would require further congressional action. See S.Rep. No. 96-826, p. 155 (1980).
2. Plaintiffs contended that the Act amounted to a taking of property without due process, imposed involuntary servitude, violated rights of free expression and assembly, was unlawfully implemented to advance an unconstitutional war, and impermissibly discriminated between males and females. The District Court denied plaintiffs' application to convene a three-judge District Court and dismissed the suit, Rowland v. Tarr, 341 F.Supp. 339 (1972). On appeal, the Court of Appeals for the Third Circuit affirmed the dismissal of all claims except the discrimination claim, and remanded the case to the District Court to determine if this claim was substantial enough to warrant the convening of a three-judge court under then-applicable 28 U.S.C. § 2282 (1970 ed.) and whether plaintiffs had standing to assert that claim. 480 F.2d 545 (1973). On remand, the District Court answered both questions in the affirmative, resulting in the convening of the three-judge court which decided the case below. The Act authorizing three-judge courts to hear claims such as this was repealed in 1976, Pub.L. 94-381, §§ 1 and 2, 90 Stat. 1119, but remains applicable to suits filed before repeal, § 7, 90 Stat. 1120.
5. See also Simmons v. United States, 406 F.2d 456, 459 (CA5), cert. denied, 395 U.S. 982 (1969) ("That this court is not competent or empowered to sit as a super-executive authority to review the decisions of the Executive and Legislative branches of government in regard to the necessity, method of selection, and composition of our defense forces is obvious, and needs no further discussion").
7. It is clear that "[g]ender has never been rejected as an impermissible classification in all instances." Kahn v. Shevin, 416 U.S. 351, 356, n. 10 (1974). In making this observation, the Court noted that "Congress has not so far drafted women into the Armed Services, 50 U.S.C.App. § 454." Ibid.
8. See Reinstitution of Procedures for Registration Under the Military Selective Service Act: Hearing on S. 109 and S. 226 before the Subcommittee on Manpower and Personnel of the Senate Committee on Armed Services, 96th Cong., 1st Sess. (1979) (Hearing on S. 109 and S. 226). Seven months before the President's call for the registration of women, the Senate Armed Services Committee rejected the idea, see S.Rep. No. 96-226, pp. 9 (1979).
9. The amendment provided that no funds "shall be made available for implementing a system of registration which does not include women." 126 Cong.Rec. 13876 (1980).
10. The findings were before the conferees because the Senate Armed Services Committee had added a provision to the 1981 Defense Authorization Bill authorizing the transfer of funds to register young men as a stop-gap measure should Joint Resolution 521 fail. See S.Conf.Rep. No. 96-895 at 100.
11. Nor can we agree with the characterization of the MSSA in the Brief for National Organization for Women as Amicus Curiae as a law which "coerce[s] or preclude[s] women as a class from performing tasks or jobs of which they are capable," or the suggestion that this case involves "[t]he exclusion of women from the military." Id. at 120. Nothing in the MSSA restricts in any way the opportunities for women to volunteer for military service.
12. No major country has women in combat jobs in their standing army. See App. 143.
13. See Brief for Appellees 1-2, n. 2 (denying any concession of the validity of combat restrictions, but submitting restrictions are irrelevant to the present case). See also App. 256.
14. JUSTICE MARSHALL's suggestion that, since Congress focused on the need for combat troops in authorizing male-only registration, the Court could "be forced to declare the male-only registration program unconstitutional," post at 96, in the event of a peacetime draft misreads our opinion. The perceived need for combat or combat-eligible troops in the event of a draft was not limited to a wartime draft. See, e.g., S.Rep. No. 96-826 at 157 (considering problems associated with "[r]egistering women for assignment to combat or assigning women to combat positions in peacetime") (emphasis supplied); id. at 158 (need for rotation between combat and noncombat positions "[i]n peace and war").
15. The grant of constitutional authority is, after all, to Congress, and not to the Executive or military officials.
16. The District Court also focused on what it termed Congress' "inconsistent positions" in encouraging women to volunteer for military service and expanding their opportunities in the service, on the one hand, and exempting them from registration and the draft on the other. 509 F.Supp. at 603-604. This reasoning fails to appreciate the different purposes served by encouraging women volunteers and registration for the draft. Women volunteers do not occupy combat positions, so encouraging women to volunteer is not related to concerns about the availability of combat troops. In the event of a draft, however, the need would be for combat troops or troops which could be rotated into combat. See supra at 76. Congress' positions are clearly not inconsistent, and in treating them as such, the District Court failed to understand Congress' purpose behind registration, as distinguished from its purpose in encouraging women volunteers.


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At about 1:45 p.m. on August 25, 1986, Mr. and Mrs. Robert Crawford and their three-year-old child returned home from shopping and noticed that a "screen was down and [that] the burglar bar had been removed" from a window. Mrs. Crawford "went up to the door, an iron door, and . . . it was jarred open." When Mrs. Crawford "put her hand like she was going to open the knob[,] . . . the door was jerked open" and defendant appeared, holding one of Mr. Crawford's ".22 rifles." Defendant "pulled" the "slide clip" on the rifle, "grabbed [Mrs. Crawford] by the arm" and ordered the Crawfords into the house. The Crawfords, including their child, were forced to lie face down on the floor and defendant bound them with "shoelaces" and covered them with a "bedspread." Defendant resumed plundering the Crawfords' home and, before leaving, he took Mrs. Crawford's "pocketbook" and $130 from Mr. Crawford's pants pocket. Defendant made his escape in the Crawfords' "1985 Plymouth Horizon."
On September 7, 1986, the Crawfords' vehicle was recovered after a high speed chase between law enforcement officers and defendant. Defendant was then a suspect in an unrelated burglary. Items taken from the Crawfords' home and from the unrelated burglary were found in defendant's possession. From this and other evidence adduced at trial, defendant was found guilty of burglary, armed robbery and two counts of false imprisonment.
At about 11:00 a.m. on September 7, 1986, Mrs. Cynthia Smith returned home from church and she observed an unfamiliar "white sub-compact car" parked in her driveway. Mrs. Smith "got out of [her] car and . . . started to go into the house, but then [she] backed up and . . . decided to get back in [her] car and go down to [a nearby] gas station . . . and call the police Shortly after Mrs. Smith's departure, Ms. Sharon Neal, who then resided with the Smiths, returned home and observed a bearded man with "very unkempt hair in a white Horizon" automobile attempting to exit the driveway. Ms. Neal confronted the man who asked her was she "going to park?" The man moved the car he was in and Ms. Neal maneuvered her vehicle to a parking position. The man fled without further confrontation. After a few moments, a law enforcement officer approached Ms. Neal and made inquiry about an emergency phone call. Ms. Neal and the officer then investigated the Smiths' house and discovered that it had been burglarized.
At about 11:30 a.m., Officer M. L. Holder of the City of Atlanta Police Department received a lookout for a small white car driven by a bearded man "headed north on Peyton Road." A general description was given of the driver and Officer Holder began patrolling the area where the vehicle was last observed. A few minutes later, Officer Holder "spotted the vehicle on the side of [Interstate Highway] 285 southbound, parked in the emergency lane." The officer pulled behind the vehicle, put on the blue light, noticed that the engine was engaged, approached the driver and observed defendant "leaning over in the seat counting some money, mostly change." The officer asked defendant "to turn off the car and [hand over his] driver's license." Defendant did not comply and he attempted to flee. Officer Holder struggled with defendant, but the officer was repelled from the moving vehicle. A high-speed chase ensued and defendant successfully eluded law enforcement officers for "about 45 miles," colliding with several vehicles and approaching speeds of 110 miles per hour. Finally, defendant was apprehended and brought into police custody. Defendant there admitted that he "hit" the Smiths' house.
It was discovered that defendant was operating a stolen vehicle and that several items in defendant's possession were objects taken from the Smiths' home and from an unrelated theft. From this and other evidence, defendant was found guilty of burglary.
1. In his first enumeration of error, defendant contends the trial court erred in failing to suppress Mrs. Crawford's testimony relating to her pre-trial photographic identification of defendant. Defendant argues that the photographic identification procedure was impermissibly suggestive and that, as a result of the suggestive procedure, there was a substantial likelihood of irreparable misidentification at his trial on Indictment No. A86182.
"Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. McCoy v. State, 237 Ga. 62, 63 (226 SE2d 594) (1976); Bonner v. State, 160 Ga. App. 902, 903 (1) (288 SE2d 612) (1982).
[However, even] if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. Price v. State, 159 Ga. App. 662, 663 (1) (284 SE2d 676) (1981)." Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548).
In the case sub judice, Mrs. Crawford indicated that she had ample opportunity to observe defendant at the time of the armed robbery. In this regard, she testified that defendant was standing about five feet from her when she observed him in the doorway of her house holding a rifle. She also testified that the "sun was shining" at the time and that she and her husband had extensive conversations with defendant during the ordeal. Further, Mrs. Crawford gave a detailed description of the clothing defendant was wearing and she affirmed on cross-examination that she was "[t]rying to" make "as many mental notes as possible" during the armed robbery. This evidence shows that Mrs. Crawford's identification of defendant had such an independent origin, i.e., her observations of defendant at the scene, that the trial court did not err in denying defendant's motion to suppress.
2. Defendant contends in his second enumeration of error that the trial court erred in denying his motions for mistrial during his trial for the crimes committed at the Crawfords' house (Indictment No. A86182), arguing that the State's attorney impermissibly placed his character in issue by injecting evidence relevant to the Smith burglary (Indictment No. A86181). More specifically, defendant points to three objections he made during the testimony of three of the State's witnesses.
The trial court ruled as follows: "I am going to deny the motion for mistrial. I don't see anything improper about that."
" 'The decision of whether to grant a mistrial . . . rests with the trial judge. (OCGA 17-8-75). His decision will not be overturned on appeal absent a manifest abuse of discretion. (Cit.)' Jones v. State, 250 Ga. 166, 168 (3) (296 SE2d 598) (1982). See also Johnson v. State, 142 Ga. App. 526 (1) (236 SE2d 493) (1977)." Grant v. State, 185 Ga. App. 497 (1), 498 (364 SE2d 628). In the case sub judice, we have examined the context in which this question was raised and we find nothing which would have led the jury to believe that defendant was involved in another crime. Consequently, the trial court did not abuse its discretion in not ordering a mistrial.
(b) Next, defendant objected when Mrs. Cynthia Smith testified that defendant did not have "permission to have . . ." items that were found in the vehicle defendant was operating at the time of his arrest and which were taken from Mrs. Smith's home on September 7, 1986. Assuming without deciding that it was error to allow Mrs. Smith to testify that defendant did not have "permission to have . . ." items that were taken from her home on December 7, 1986, this error was harmless since other evidence was admitted without objection showing that defendant was in possession of goods taken from the Smiths' home on September 7, 1986. Drake v. State, 245 Ga. 798 801 (3), 802 (267 SE2d 237).
(c) Finally, defendant objected after a law enforcement officer testified that he interrogated defendant and that during the interrogation he "advised [defendant] that [he] was investigating a large number of burglaries that had happened. . . ." The trial court immediately instructed the jury to "completely disregard the last answer of the witness." Defendant raised no further objection.
"If a motion for a mistrial is overruled but corrective instructions are given by the court and thereafter counsel fails to request further instructions or renews his motion for a mistrial, the overruling of the motion is not regarded as error. [ Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158).]" Daniel's Ga. Criminal Trial Prac. (1986 ed.) 550, 20-24. In the case sub judice, since defendant neither objected to the trial court's corrective instructions nor renewed his motion for mistrial, we find no error.
3. Next, defendant contends the trial court erred in failing to suppress an incriminating statement he made during a police interrogation shortly after his arrest. Defendant refers to evidence adduced at a Jackson v. Denno (378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing conducted during his trial on Indictment No. A86182 and argues that there was insufficient evidence to show that his statement was voluntarily made.
" 'The state is required only to prove by a preponderance of the evidence that the [defendant's] statement was voluntarily made. (Cits.) . . . We must accept the trial court's determination that the [defendant's] statement was voluntarily made absent a showing that this determination was clearly erroneous. (Cits.)' Tyler v. State, 247 Ga. 119, 123 (274 SE2d 549) (1981)." Graham v. State, 185 Ga. App. 617 (1), 618 (365 SE2d 482).
In the case sub judice, defendant was advised of the charge against him and was twice advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), prior to questioning. Defendant indicated that he understood his rights, agreed to talk to one of the law enforcement officers and stated that he did not commit the crimes at the Crawfords' house, but that he " 'hit' " the Smiths' house. No threats or promises were made to defendant and defendant did not request an attorney during questioning. Under these circumstances, we are satisfied that the trial court's finding "that the defendant was advised of his Miranda rights and that he understood them and that he voluntarily waived them and that he thereafter gave a statement freely and voluntarily without any hope of benefit or fear of injury" were authorized. See Graham v. State, 185 Ga. App. 617 (1), supra.
4. In his final enumeration of error, defendant contends the trial court erred in allowing the State to impermissibly place his character in issue by injecting evidence relevant to the crime committed at the Crawfords' house (Indictment No. A86182) at his trial for the burglary at the Smiths' home (Indictment No. A86181). Defendant cites two portions of the trial transcript to support this enumeration of error.
(a) First, defendant complains of testimony showing that he was in possession of a piece of jewelry that was taken from the Crawfords' home at the time of his arrest. However, there was no contemporaneous objection with this testimony. Consequently, "[b]y failing to object contemporaneously, . . . trial counsel waived the error." Cape v. State, 246 Ga. 520, 524 (5) (272 SE2d 487). See Smith v. State, 180 Ga. App. 422, 423 (1), 424 (349 SE2d 279).
(b) Defendant's second argument is directed to his motion for mistrial raised after the State's attorney attempted to question a law enforcement officer about a photographic line-up that was presented to the victim of the Crawford burglary. While this inquiry may have been irrelevant to the charges against defendant relating to the crimes committed at the Smiths' home, we find no error since defendant opened the door to this line of inquiry upon his cross-examination of the law enforcement officer. See Brown v. State, 175 Ga. App. 246, 247 (3) (333 SE2d 124).
Further, the record shows that the trial court sustained defendant's objection by instructing the State's attorney not to "go into that." However, the trial court did not rule on defendant's motion for mistrial and defendant did not press his motion for mistrial after the trial court's favorable ruling to his objection. "It is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver. See, e.g., Flowers v. Slash Pine Elec. Membership Corp., 122 Ga. App. 254 (176 SE2d 542) (1970); Sprague v. State, 147 Ga. App. 347 (3) (248 SE2d 711) (1978)." Watts v. State, 155 Ga. App. 376 (1), 377 (271 SE2d 29). In the case sub judice, there is nothing in the record to indicate that the trial court refused to rule on defendant's motion for mistrial. He simply heard argument of counsel and directed the State's attorney to refrain from his line of inquiry. After this direction, defendant's attorney did not insist on an express ruling. In fact, his only reply was, "[t]hank you, very much, your honor." Under these circumstances, we find no error which is now subject to review.
Burglary, etc. Fulton Superior Court. Before Judge Daniel.
Harry J. Bowden, Jonathan J. Wade, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, A. Thomas Jones, Assistant District Attorneys, for appellee.

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