Rashid A. Ali, James T. Vaughn Correctional Center, Smyrna, DE, Pro Se, Plaintiff.
Elizabeth A. Sloan, Blank Rome LLP, Esquire, Wilmington, DE, for Defendant, Scott Kasprenski.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for Defendants, Ralph Bailey and John Barlow.
Plaintiff Rashid A. Ali ("plaintiff"), an inmate at the James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. He proceeds pro se and was granted leave to proceed in forma pauperis. Presently before the court are defendants' motions for summary judgment and plaintiff's request for counsel and motion for a second extension of time. (D.I. 84, 86, 89, 94) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed, the court will grant defendants' motions and will deny plaintiff's motions.
compound and arrived at unit 29, manned by Kasprenski. It was raining, and he was sitting on two crates. According to plaintiff, Kasprenski told him to shut an open gate after he walked through it. Plaintiff responded that it was not his job. Plaintiff testified that inmates are not permitted to touch any security gates and the gate was supposed to be shut. (D.I. 85, ex. A11-16, 19, 33-34) Plaintiff testified that Kasprenski cursed and threatened to punch him in the face and "came toward the ramp, come running down and pushed [him]" with both hands. Plaintiff was pushed in the torso area and fell into the other inmate, but he did not fall to the ground. Plaintiff advised Kasprenski that he was going to report him to the watch commander. Plaintiff was sore for a few days, but did not seek medical attention and had no visible bruising.
It appears that the incident report was not prepared until April 13, 2007.
make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiff did not file a response to either motion for summary judgment. The court, however, will not grant the entry of summary judgment without considering the merits of the unopposed motions. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (holding that a district court should not have granted summary judgment solely on the basis that a motion for summary judgment was not opposed.").
Bailey and Barlow contend that plaintiffs claims against them are constitutionally impermissible because he cannot establish that they were the "moving force" behind any constitutional violation or that they were "deliberately indifferent." In addition, they argue that the allegations of writing or filing false disciplinary reports or the failure to investigate or act after the fact do not state constitutional violations.
"`A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior.'" Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Personal involvement can be shown through allegations that a defendant directed, had actual knowledge of, or acquiesced in, the deprivation of a plaintiff's constitutional rights. Id.; see Monell v. Department of Social Services, 436 U.S. 658, 694-95 (1978).
As is well established, supervisory liability cannot be imposed under § 1983 on a respondeat superior theory. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009); Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). Supervisory liability may attach if the supervisor implemented deficient policies and was deliberately indifferent to the resulting risk or the supervisor's actions and inactions were "the moving force" behind the harm suffered by the plaintiff. Sample v. Diecks, 885 F.2d 1099, 1117-118 (3d Cir. 1989); see also City of Canton v. Harris, 489 U.S. 378 (1989); Heggenmiller v. Edna Mahan Corn. Inst. for Women, 128 F. App'x 240 (3d Cir. 2005) (not published). Purpose rather than knowledge is required to impose liability on an official charged with violations arising from his or her superintendent responsibilities. Iqbal, ___ U.S. ___, 129 S.Ct. at 1949. "Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Id.
In Iqbal, the plaintiff alleged supervisory officials violated his rights because one official was the "principal architect" of the policy, and another was "implemental" in adoption and execution of the policy. See id. at 1944. The Supreme Court found the allegations facially insufficient. See Iqbal, 129 S.Ct. at 1949 (quoting Robertson v. Sichel, 127 U.S. 507, 515-516 (1888), for the proposition that "[a] public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties").
Subsequent to Iqbal, there is some uncertainty over the continued existence of liability for a supervisor who knows about the unconstitutional conduct of subordinates and does nothing to stop it. See Brickell v. Clinton County Prison Bd., 658 F. Supp. 2d 621, 625 (M.D. Pa. 2009). Yet Third Circuit precedent holds that supervisory personnel can be held liable under § 1983 if they had knowledge of, and acquiesced in, subordinates' constitutional violations. See Baker v. Monroe Twp., 50 F.3d 1186, 1191 (3d Cir. 1995). There is no separate test for liability under § 1983 for supervisors; rather, each claim must satisfy the requirements of individual liability for each defendant regardless of supervisory position. See Iqbal, 129 S.Ct. at 1948-49. See also Bayer v. Monroe County Children and Youth Servs., 577 F.3d 186, 190 n. 5 (3d Cir. 2009) (noting that in light of Iqbal, it is uncertain whether proof of personal knowledge, with nothing more, provides a sufficient basis to impose liability upon a supervisory official).
Plaintiff testified that he sued Bailey and Barlow, in part, because of their supervisory positions. The record reflects that neither Bailey nor Barlow were personally involved in the incident between plaintiff and Kasprenski. It is undisputed that they were not made aware of the altercation until after the fact and that they did not have prior knowledge of any other alleged assaults by Kasprenski. Both state that they had no policy for, or condoned the use of, excessive force against inmates. Further, the record reflects that, subsequent to the occurrence, both Bailey and Barlow took action in an effort to discover what actually occurred between plaintiff and Kasprenski. Based upon the facts of record, a reasonable jury could not find that either Bailey or Barlow violated plaintiff's constitutional rights.
With respect to plaintiff's claims that Barlow authored a false incident report and Bailey encouraged Kasprenski to author a false disciplinary report, without more, this does not violate plaintiff's constitutional rights, particularly in light of the fact that plaintiff was not punished as a result of the alleged false reports. See Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002). Indeed, as plaintiff testified, the disciplinary process worked in his favor and he was found not guilty of Kasprenski's charges. (D.I. 85, ex. A44) Finally, the failure to investigate claim fails as a matter of law. There was no mandatory duty upon Bailey or Barlow to investigate the occurrence between plaintiff and Kasprenski. See Schaeffer v. Wilson, 240 F. App'x 974, 976 (3d Cir. 2007) (not published) (citing Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382 (2d Cir. 1973) (inmates failed to state a claim against state officials for failing to investigate or prosecute civil rights violations).
After reviewing the record, the court finds that there is insufficient evidence to enable a jury to reasonably find for plaintiff on the issue of whether Bailey and/or Barlow violated his constitutional rights. For the above reasons, the court will grant their motion for summary judgment.
The court liberally construed plaintiff's complaint as raising retaliation claims against Bailey and Kasprenski. Proof of a retaliation claim requires that plaintiff demonstrate (1) he engaged in protected activity; (2) he was subjected to adverse actions by a state actor; and (3) the protected activity was a substantial motivating factor in the state actor's decision to take adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
When asked during his deposition what claims he raised against defendants, plaintiff answered with a number of claims, but a retaliation claim was not one of them. Therefore, the court concludes that plaintiff waived any potential retaliation claims against Bailey and Kasprenski. Even had plaintiff proceeded with retaliation claims, it is evident from the record that he cannot meet the necessary prongs to prevail on said claims. While Kasprenski did author a disciplinary report, plaintiff was found not guilty and, therefore, did not suffer an adverse action. In addition, the record does not support plaintiff's allegations that Bailey was somehow complicit in encouraging Kasprenski to author a false disciplinary report.
After reviewing the record, the court finds that there is insufficient evidence to enable a jury to reasonably find for plaintiff on the issue of whether Bailey and/or Kasprenski retaliated against plaintiff in violation of his constitutional rights. For the above reasons, the court will grant their motion for summary judgment on this issue.
Plaintiff claims that Kasprenski assaulted him and used excessive force on October 17, 2006, when he pushed him in the torso. Kasprenski denies that he pushed plaintiff, but that he reached out in an attempt to take plaintiff's identification badge. Kasprenski contends, assuming arguendo that plaintiff's allegations are true, that the alleged physical contact did not rise to the level of excessive force in violation of the Eighth Amendment.
A convicted prisoner's Eighth Amendment right to be free from cruel and unusual punishment is implicated when a prison official uses force against the prisoner. Whitley v. Albers, 475 U.S. 312, 319 (1986). Determining whether a prison official's use of ferce violates the Eighth Amendment requires a two-step analysis. First, the court must determine whether the force "was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm" (the "subjective" component). Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley, 475 U.S. at 320-21). See also Wilkins v. Gaddy, ___ U.S. ___, 130 S.Ct. 1175 (2010). Second, the court must determine whether the prison official's conduct was sufficiently serious to violate "contemporary standards of decency" (the "objective" component). Id. at 8.
In determining whether force was used in good faith or sadistically or maliciously with intent to harm the prisoner, a court must consider several factors, including: the need for the use of force; the relationship between that need and the amount of force used; the extent of the prisoner's injuries; the extent of the perceived threat that the prisoner posed; and any efforts made by the prison officials to lessen the severity of the response. Hudson, 503 U.S. at 7; Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000).
The facts construed in the light most favorable to plaintiff, the non-moving party, are that Kasprenski was verbally abusive and pushed plaintiff in the torso with both hands. Testimony provided by plaintiff indicates that he refused Kasprenski's order to close an open gate, telling Kasprenski that it was not his job. When pushed, plaintiff did not fall to the ground, but fell into another inmate. While he was sore for a few days, he sought no medical attention and had no visible bruising. Additionally, almost immediately after the altercation, when he reported the incident to Barlow, he told Barlow that he was "okay," but that Kasprenski could not push him.
Kapsrenski agues that plaintiff cannot establish either prong of the two-prong test and, therefore, the claim fails. He specifically argues that the force used was constitutionally de minimis and that a single push to the torso was a minor incident of physical contact that does not rise to the level of excessive force.
The Eighth Amendment does not protect an inmate against an objectively de minimis use of force, provided that the use of force is not "`repugnant to the conscience of mankind.'" Whitley v. Albers, 475 U.S. at 327 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also See Lindsey v. O'Connor, 327 F. App'x 319, 321 (3d Cir. 2009) (not published); Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002); Reyes v. Chinnici, 54 F. App'x 44, 48 (3d Cir. 2002) (not published) ("[t]here exists some point at which the degree of force used is so minor that a court can safely assume that no reasonable person could conclude that a corrections officer acted maliciously and sadistically"). The absence of a serious injury to the inmate is relevant, but not dispositive, to the inquiry of whether excessive force was used. Hudson, 503 U.S. at 7. Allegations of far more force than plaintiff was subject to have been deemed de minimis. See, e.g., Reyes, 54 F. App'x at 48 (corrections officer punched inmate in the shoulder to avoid being spit on); Thomas v. Ferguson, 361 F. Supp. 2d 435, 439-41 (D.N.J. 2004) (alleged conduct was not `repugnant to the conscience of mankind' where inmate alleged he was punched and shoved by corrections officers).
Plaintiff has failed to show that he suffered an injury that was objectively "harmful enough" to establish a constitutional violation under the Eighth Amendment. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). Here, plaintiff was pushed, but did not fall down, and suffered no bruising. While he was sore for a few days, he sought no medical attention. He does not claim to have suffered any injury as a result of this incident. Notably, immediately after he was pushed he advised prison officials that he was "okay" and seemed more concerned with the fact that Kasprenski was not supposed to push him. The court finds that the conduct complained of (i.e., being pushed in the torso) does not describe a use of force that is "repugnant to the conscience of mankind." In addition, the absence of any significant injury supports a conclusion that the force used with respect to the instant action was de minimis. See Reyes v. Chinnici, 54 F. App'x 44 (3d Cir. 2002) (the degree of a prisoner's injury can be taken into account by a federal district court in granting summary judgment to a corrections officer where the degree of force used was so minor that the court safely could assume that no reasonable person could conclude that the corrections officer acted maliciously and sadistically).
The record evidence in this action, viewed in the light most favorable to the plaintiff, does not support a reliable inference of wantonness in the infliction of pain under the Eighth Amendment. Accordingly, Kasprenski is entitled to summary judgment on the excessive force issue.
The court will grant summary judgment in favor of defendants on all federal constitutional claims. Therefore, the court declines to exercise jurisdiction over plaintiff's supplemental state law claims. 28 U.S.C. § 1367; De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003).
For the reasons discussed above, the court will grant defendants' motions for summary judgment and will deny plaintiff's pending motions.
The court sees no need to discuss the remaining grounds for summary judgment, including the failure to exhaust administrative remedies and immunity of defendants.
1. Defendants' motions for summary judgment are granted. (D.l. 84, 86) The court declines to exercise supplement jurisdiction over plaintiff's state assault and battery claims.
4. The clerk of court is directed to enter judgment in favor of defendants and against plaintiff and to close this case.


Note: This page covers information specific to Missouri. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings  section of this guide.
Missouri's wiretapping law is a "one-party consent" law . Missouri makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. See Mo. Rev. Stat. § 542.402.2 . Therefore, if you operate in Missouri, you may record a conversation or phone call if you are a party to the conversation or you get prior consent from one party to the conversation, unless you are doing so to commit a criminal or tortious act. Nevertheless, if you intend to record conversations involving people located in Missouri and another state, you should play it safe and abide by the recording law of the most restrictive state involved.
Missouri's law criminalizes recording and attempting to record any wire or oral communications. See Mo. Rev. Stat. § 542.402.1 . The statute defines "wire communications" as those made "in whole or in part through the use of "wire, cable, or other like connection between the point of origin and the point of reception." See Mo. Rev. Stat. § 542.400(12) . If at least one party in a converation is using a wired device, this statute is applicable; however, communications entirely between cordless phones receiving radio signals are not protected by Missouri's wiretapping law. See State v. Martinelli , 972 S.W.2d 424 (Mo.App. E.D.1998); State v. King , 873 S.W.2d 905 (Mo.App. S.D.1994). Missouri also prohibits the disclosure or use of the contents of any wire communication obtained in violation of this section. See Mo. Rev. Stat. § 542.402.1 .
This law only extends to oral communications which are "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." See Mo. Rev. Stat. § 542.400(8) . Therefore, you may be able to record in-person conversations occurring in a public place where there is no reasonable expectation of privacy without consent.
Violation of the Missouri law is a class D felony, punishable by imprisonment and fine. See Mo. Rev. Stat. § 542.402.1 . In addition to subjecting you to criminal prosecution, violating the Missouri wiretapping law can expose you to a civil  lawsuit for damages by an injured party. See Mo. Rev. Stat. § 542.418 .
Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Missouri  for more information on Missouri wiretapping law.
Media coverage is allowed in Missouri state courts with the permission of the presiding judge. See Court Operating Rule 16 . Media coverage is explicitly denied in any court proceeding that is required to be held in private under Missouri law, as well as juvenile, adoption, domestic relations, or child custody hearings. See C.O.R. 16.02 . Equipment and personnel are limited to one still photographer with two cameras and two lenses, one television camera and camera operator, and one audio system. See C.O.R. 16.04 . For additional information, please refer to the Missouri Supreme Court's Cameras in the Courtroom: A Guide to Missouri's Court Operating Rule 16 .
Federal courts in Missouri, at both the trial and appellate level, typically prohibit phones, recording devices, and cameras in the courtroom. There is a limited exception to this rule for civil cases in the U.S. District Court for the Eastern District of Missouri participating in the Cameras in the Courtroom  Pilot Project issued by the Judicial Conference of the United States. See Local Rule 13.02 .
For information on your right of access to court proceedings, please consult the Access to Government Information  section of this guide.
Missouri law provides for "the recording by audiotape, videotape, or other electronic means of any open meeting," though the public body may establish guidelines regarding the manner of recording in order to minimize disruption. See Mo. Rev. Stat. § 610.020.3 . However, a closed meeting cannot be recorded without the permission of the public body; doing so without permission amounts to a Class C misdemeanor. See Mo. Rev. Stat. § 610.020.3 .
For information on your right of access to public meetings, please consult the Access to Government Information  section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Missouri .


text:
[187 U.S. 553, 554] In 1867 a treaty was concluded with the Kiowa and Comanche tribes of Indians, and such other friendly tribes as might be united with them, setting apart a reservation for the use of such Indians. By a separate treaty the Apache tribe of Indians was incorporated with the two formernamed, and became entitled to share in the benefits of the reservation. 15 Stat. at L. 581, 589.
Attention was directed to the provision in the agreement in favor of the Indian agent and an army officer, and it was suggested that to permit them to avail thereof would establish a bad precedent.
Soon after the signing of the foregoing agreement it was claimed by the Indians that their assent had been obtained by fraudulent misrepresentations of its terms by the interpreters, and it was asserted that the agreement should not be held binding upon the tribes because three fourths of the adult male members had not assented thereto, as was required by the twelfth article of the Medicine Lodge treaty.
Obviously, in consequence of the policy embodied in 2079 of the Revised Statutes, departing from the former custom of dealing with Indian affairs by treaty and providing for legislative action on such subjects, various bills were introduced in both Houses of Congress designed to give legal effect to the agreement made by the Indians in 1892. These bills were referred to the proper committee, and before such committees the Indians presented their objections to the propriety of giving effect to the agreement. H. R. Doc. No. 431, 55th Congress, second session. In 1898 the Committee on Indian Affairs of the House of Representatives unanimously reported a bill for the execution of the agreement made with the Indians. The report of the committee recited that a favorable conclusion had been reached by the committee 'after the fullest hearings from delegations of the Indian tribes and all parties at interest.' H. R. Doc. No. 419, first session, 56th Congress, p. 5.
The bill thus reported did not exactly conform to the agreement as signed by the Indians. It modified the agreement by changing the time for making the allotments, and it also provided that the proceeds of the surplus lands remaining after allotments to the Indians should be held to await the judicial decision of a claim asserted by the Choctaw and Chickasaw [187 U.S. 553, 557] tribes of Indians to the surplus lands. This claim was based upon a treaty made in 1866, by which the two tribes ceded the reservation in question, it being contended that the lands were impressed with a trust in favor of the ceding tribes, and that whenever the reservation was abandoned, so much of it as was not allotted to the confederated Indians of the Comanche, Kiowa, and Apache tribes reverted to the Choctaws and Chickasaws.
With this information before it the bill was favorably reported by the Committee on Indian Affairs of the Senate, but did not pass that body.
The provision of the agreement in favor of the Indian agent and army officer was also eliminated.
The bill, moreover, exempted the money consideration for the surplus lands from all claims for Indian depredations, and expressly provided that in the event the claim of the Choctaws and Chickasaws was ultimately sustained, the consideration referred to should be subject to the further action of Congress. In this bill, as in previous ones, provision was made for allotments to the Indians, the opening of the surplus land for settlement, etc. The bill became a law by concurrence of the Senate in the amendments adopted by the House as just stated.
Thereafter, by acts approved on January 4, 1901 (31 Stat. at L. 727, chap. 8), March 3, 1901 (31 Stat. at L. 1078, chap. 832), and March 3, 1901 (31 Stat. at L. 1093, chap. 846), authority was given to extend the time for making allotments and opening of the surplus land for settlement for a period not exceeding eight months from December 6, 1900; appropriations were made for surveys in connection with allotments and setting apart of grazing lands; and authority was conferred to establish counties and county seats, townsites, etc., and proclaim the surplus lands open for settlement by white people.
On June 6, 1901, a bill was filed on the equity side of the supreme court of the District of Columbia, wherein Lone Wolf (one of the appellants herein) was named as complainant, suing for himself as well as for all other members of the confederated tribes of the Kiowa, Comanche, and Apache Indians, residing in the territory of Okiahoma. The present appellees (the Secretary of the Interior, the Commissioner of Indian Affairs and the Commissioner of the General Land Office) were made respondents to the bill. Subsequently, by an amendment to the bill, members of the Kiowa, Comanche, and Apache tribes were joined with Lone Wolf as parties complainant.
The bill recited the establishing and occupancy of the reservation in Oklahoma by the confederated tribes of Kiowas, Comanches, and Apaches, the signing of the agreement of October 6, 1892, and the subsequent proceedings which have been detailed, [187 U.S. 553, 561] culminating in the passage of the act of June 6, 1900 [31 Stat. at L. 677, chap. 813], and the act of Congress supplementary to said act. In substance it was further charged in the bill that the agreement had not been signed as required by the Medicine Lodge treaty, that is, by three fourths of the male adult members of the bribe, and that the signatures thereto had been obtained by fraudulent misrepresentations and concealment, similar to those recited in the memorial signed at the 1899 council. In addition to the grievance previously stated in the memorial, the charge was made that the interpreters falsely represented, when the said treaty was being considered by the Indians, that the treaty provided 'for the sale of their surplus lands at some time in the future at the price of $2. 50 per acre;' whereas, in truth and in fact, 'by the terms of said treaty, only $1.00 an acre is allowed for said surplus lands,' which sum, it was charged, was an amount far below the real value of said lands. It was also averred that portions of the signed agreement had been changed by Congress without submitting such changes to the Indians for their consideration. Based upon the foregoing allegations, it was alleged that so much of said act of Congress of June 6, 1900, and so much of said acts supplementary thereto and amendatory thereof as provided for the taking effect of said agreement, the allotment of certain lands mentioned therein to members of said Indian tribes, the surveying, laying out, and platting townsites and locating county seats on said lands, and the ceding to the United States and the opening to settlement by white men of 2,000,000 acres of said lands, were enacted in violation of the property rights of the said Kiowa, Comanche, and Apache Indians, and if carried into effect would deprive said Indians of their lands without due process of law, and that said parts of said acts were contrary to the Constitution of the United States, and were void, and conferred no right, power, or duty upon the respondents to do or perform any of the acts or things enjoined or required by the acts of Congress in question. Alleging the intention of the respondents to carry into effect the aforesaid claimed unconstitutional and void acts, and asking discovery by answers to interrogatories propounded to the respondents, the allowance of a temporary restraining order, and a final decree [187 U.S. 553, 562] awarding a perpetual injunction, was prayed, to restrain the commission by the respondents of the alleged unlawful acts by them threatened to be done. General relief was also prayed.
On January 6, 1901, a rule to show cause why a temporary injunction should not be granted was issued. In response to this rule an affidavit of the Secretary of the Interior was filed, in which, in substance, it was averred that the complainant (Lone Wolf) and his wife and daughter had selected allotments under the act of June 6, 1900, and the same had been approved by the Secretary of the Interior and that all other members of the tribes, excepting twelve, had also accepted and retained allotments in severalty, and that the greater part thereof had been approved before the bringing of this suit. It was also averred that the 480,000 acres of grazing land provided to be set apart, in the act of June 6, 1900, for the use by the Indians in common, had been so set apart prior to the institution of the suit, 'with the approval of a council composed of chiefs and headmen of said Indians.' Thereupon an affidavit verified by Lone Wolf was filed, in which in effect he denied that he had accepted an allotment of lands under the act of June 6, 1900, and the acts supplementary to and amendatory thereof. Thereafter, on June 17, 1901, leave was given to amend the bill and the same was amended, as heretofore stated, by adding additional parties complainant and by providing a substituted first paragraph of the bill, in which was set forth, among other things, that the three tribes, at a general council held on June 7, 1901, had voted to institute all legal and other proceedings necessary to be taken, to prevent the carrying into effect of the legislation complained of.
The supreme court of the District on June 21, 1901, denied the application for a temporary injunction. The cause was thereafter submitted to the court on a demurrer to the bill as amended. The demurrer was sustained, and the complainants electing of appeals of the District. While this appeal was pending, the President issued a proclamation, dated July 4, 1901 (32 Stat. at L. Appx. Proclamations, 11), in which it was [187 U.S. 553, 563] ordered that the surplus lands ceded by the Comanche, Kiowa, and Apache and other tribes of Indians should be opened to entry and settlement on August 6, 1901. Among other things, it was recited in the proclamation that all the conditions required by law to be performed prior to the opening of the lands to settlement and entry had been performed. It was also therein recited that, in pursuance of the act of Congress ratifying the agreement, allotments of land in severalty had been regularly made to each member of the Comanche, Kiowa, and Apache tribes of Indians; the lands occupied by religious societies or other organizations for religious or educational work among the Indians had been regularly allotted and confirmed to such societies and organizations, respectively; and the Secretary of the Interior, out of the lands ceded by the agreement, had regularly selected and set aside for the use in common for said Comanche, Kiowa, and Apache tribes of Indians, 480,000 acres of grazing lands.
The court of appeals (without passing on a motion which had been made to dismiss the appeal) affirmed the decree of the court below, and overruled a motion for reargument. 19 App. D. C. 315. An appeal was allowed, and the decree of affirmance is now here for review.
Messrs. William M. Springer and Hampton L. Carson for appellants.
Assistant Attorney General Van Devanter and Messrs. William C. Pollock and Anthony C. Campbell, for appellees.
The appellants base their right to relief on the proposition that by the effect of the article just quoted the confederated tribes of Kiowas, Comanches, and Apaches were vested with an interest in the lands held in common within the reservation, which interest could not be devested by Congress in any other mode than that specified in the said twelfth article, and that as a result of the said stipulation the interest of the Indians in the common lands fell within the protection of the 5th Amendment to the Constitution of the United States, and such interest-indirectly at least- came under the control of the judicial branch of the government. We are unable to yield our assent to this view.
The contention in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States. To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.
Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government. Until the year 1871 the policy was pursued of dealing with the [187 U.S. 553, 566] Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign nations (Chinese Exclusion Case, 130 U.S. 581, 600 , 32 S. L. ed. 1068, 1073, 9 Sup. Ct. Rep. 623), the legislative power might pass laws in conflict with treaties made with the Indians. Thomas v. Gay, 169 U.S. 264, 270 , 42 S. L. ed. 740, 743, 18 Sup. Ct. Rep. 340; Ward v. Race Horse, 163 U.S. 504, 511 , 41 S. L. ed. 244, 246, 16 Sup. Ct. Rep. 1076; Spalding v. Chandler, 160 U.S. 394, 405 , 40 S. L. ed. 469, 473, 16 Sup. Ct. Rep. 360; Missouri, K. & T. R. Co. v. Roberts, 152 U.S. 114, 117 , 38 S. L. ed. 377, 379, 14 Sup. Ct. Rep. 496; Cherokee Tobacco, 11 Wall. 616, Sub nom. 207 Half Pound papers of Smoking Tobacco v. United States, 20 L. ed. 227.
'After an experience of a hundred years of the treaty-making system of government Congress has determined upon a new departure,-to govern them by acts of Congress. This is seen in the act of March 3, 1871, embodied in 2079 of the Revised Statutes: 'No Indian nation or tribe, within the territory of the United States, shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3d, 1871, shall be hereby invalidated or impaired."
In upholding the validity of an act of Congress which conferred jurisdiction upon the courts of the United States for certain crimes committed on an Indian reservation within a state, the court said (p. 383, L. ed. p. 231, Sup. Ct. Rep. p. 1114): [187 U.S. 553, 567] 'It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They own no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this court, whenever the question has arisen.
That Indians who had not been fully emancipated from the control and protection of the United States are subject, at least so far as the tribal lands were concerned, to be controlled by direct legislation of Congress, is also declared in Choctaw Nation v. United States, 119 U.S. 1, 27 , 30 S. L. ed. 306, 314, 7 Sup. Ct. Rep. 75, and Stephens v. Choctaw Nation, 174 U.S. 445, 483 , 43 S. L. ed. 1041, 1054, 19 Sup. Ct. Rep. 722.
In view of the legislative power possessed by Congress over treaties with the Indians and Indian tribal property, we may not specially consider the contentions pressed upon our notice that the signing by the Indians of the agreement of October 6, 1892, was obtained by fraudulent misrepresentations, and concealment, that the requisite three fourths of adult male Indians had not signed, as required by the twelfth article of the treaty of 1867, and that the treaty as signed had been amended by Congress without submitting such amendments to the action [187 U.S. 553, 568] of the Indians since all these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts.
The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches, and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property, and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit. Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U.S. 294 , ante, 115, 23 Sup. Ct. Rep. 115, decided at this term, where it was held that full administrative power was possessed by Congress over Indian tribal property. In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts. The legislation in question was constitutional, and the demurrer to the bill was therefore rightly sustained.
The motion to dismiss does not challenge jurisdiction over the subject-matter. Without expressly referring to the propositions of fact upon which it proceeds, suffice it to say that we think it need not be further adverted to, since, for the reasons previously given and the nature of the controversy, we think the decree below should be affirmed.

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


text:
Nowadays the daily life is becoming more and more stressing: we always have to run after time, to be more and more efficient in less and less time. And it is not always easy to break the routine: those who have a very busy life have just one wish going back to home, and it is just sleep. And those who manage to set themselves up a little time for relaxing in spite of their overbooked diary have to go in an overcrowded spa. In short, nothing pretty pleasurable. However you have to know that the spa has a lot of virtues, whose you are able to enjoy at home.
The benefits of the hydrotherapy are well known for millenaries: during the Ancient Time, the romans used it yet to relax and relieve the muscular and articular pains of the sportsmen. Nowadays the spa is becoming more and more popular, and its virtues are admitted by the entire medical community: by the way that is why the physiotherapists recommend spa sessions for the sportsmen after an intensive effort, or for the people who are suffering from rheumatism or articular pains.
In addition to all these benefits for our health, the spa also has relaxing properties: there is nothing better than a bubble bath to relax after a hard working day!
Do you love spa but you are just done with the overcrowded and unaffordable establishments where you can only stay one hour? And what if we told you that you are able to set a real spa at home, to enjoy it whenever you want and as long as you want very privately? Indeed there is a large range of spas, for every wish and every budget: so you can benefit from a complete spa session without leaving your household !
04 Fév. 2019Water treatment from jacuzzi tubs212 v.
13 Janv. 2019What you need if you are looking for a bathroom makeover235 v.
11 Août 2018The SPA effects on your skin577 v.
14 Juin 2018The powers and effects of water theropy656 v.
31 Oct. 2017The top 3 reasons to have a spa session every month967 v.
20 Sept. 2017Find all the best brands on the market here !1024 v.
28 Juil. 2017Get the real hot tub experience at home1260 v.
21 Juil. 2017New study on effects of Spas on arthrites, book your session!1395 v.
Find all the best brands on the market here !


text:
*1 IN RE JOHANNA FARMS, INC.
An application has been filed by Johanna Farms, Inc. to register the term 'LA YOGURT' ('YOGURT' disclaimed) as a trademark on the Principal Register for yogurt. [FN1] Applicant seeks registration pursuant to Section 2(f) of the Trademark Act based on the claim that the designation sought to be registered has acquired distinctiveness.
Registration has been refused on two grounds. First, the Examining Attorney maintains that registration herein is barred under the doctrine of stare decisis in view of a final decision rendered by the Board in connection with a prior application to register 'LA YOGURT' for yogurt. [FN2] The Examining Attorney maintains that the relevant circumstances involved in the present case are identical to those considered in the prior application and that applicant is precluded from relitigating issues which have already been determined.
As a second ground for refusal, the Examining Attorney asserts that, even if it is determined that stare decisis does not bar registration herein, the phrase 'LA YOGURT' is a generic designation, incapable of distinguishing applicant's goods from those of others; that 'YOGURT' is the French generic name for the goods; that use of the French article 'LA' in combination with 'YOGURT' yields only an ungrammatical variation on the foreign generic term for the goods and that evidence of de facto secondary meaning cannot elevate the generic term sought to be registered to the status of a registrable trademark.
In view of the issues presented by this case, the oral hearing on November 17, 1987 was held before the eight members of the Trademark Trial and Appeal Board sitting, by designation of the Chairman of the Trademark Trial and Appeal Board, as an augmented panel.
Turning first to the issue of stare decisis, a brief review of the circumstances of the prior application and the Board's decision relating thereto are in order.
Applicant initially filed an application to register 'LA YOGURT' as a trademark for yogurt on the Principal Register. [FN3] After registration was refused on the ground that the term sought to be registered was 'merely the name of the goods,' applicant amended its application to one seeking registration on the Supplemental Register. Eventually, registration was finally refused on the Supplemental Register on the ground that 'LA YOGURT' was nothing more than the apt (generic) name of the goods and that said term, therefore, was unregistrable on the Supplemental Register. Applicant then appealed.
The Board, in deciding the appeal, noted that 'yogurt' was concededly the name of the goods and that the term 'la' had no significance by itself in relation to yogurt or any other product, other than as the French feminine article modifying the generic term. The Board then stated that the question to be decided was whether the entire term 'LA YOGURT' was generic. If it were, the Board stated, the term could not be registered on either the Principal or Supplemental Register. If, however, 'LA YOGURT' were not generic, it would be registrable on the Principal Register. In either case, the Board maintained, evidence of secondary meaning was irrelevant. The Board then concluded that, on the record presented, the Examining Attorney's conclusion that 'LA YOGURT' was the apt name of the goods was without error. The Board stated that the '. . . principal foundation of our conclusion is that to the segment of our purchasing public which is French in language and culture, the term LA YOGURT would be perceived as a variation or corruption of the generic name for 'yogurt' in the French language.' In re Johanna Farms, supra, at 610.
*2 In reaching its conclusion as to how French--American purchasers were likely to perceive the term 'LA YOGURT,' the Board pointed to two letters from consumers of applicant's yogurt who were purportedly knowledgeable in French. The Board stated that this evidence substantiated the Examining Attorney's conclusion that French-speaking consumers would perceive 'LA YOGURT' as a variation or corruption of the French generic term and the Board affirmed the refusal of registration, relying on the doctrine of foreign equivalents, and citing Weiss Noodle Co. v. Golden Cracknel and Specialty Company, 290 F.2d 845, 129 USPQ 411 (CCPA 1961).
The Board, in the alternative, maintained that even if 'LA YOGURT' were not incapable of distinguishing source to French--American purchasers under the doctrine of foreign equivalents, the refusal of registration would nevertheless be affirmed under the rationale that the addition of the article 'la' to the English generic term 'yogurt' was insufficient to convey any impression to ordinary American consumers other than the apt name for the goods. To the vast majority of those persons, the Board reasoned, the presence of 'la', together with applicant's emphasis in advertising on a French theme, would only signify the 'Frenchifying' of the term. The Board stated that '. . . the nub of the issue under this analysis is whether 'Frenchifying' the American--English generic term 'yogurt' by the mere addition of an article (whether it be 'le' or 'la' makes no difference) can alter the commercial impression of the generic term so that it is capable of distinguishing the source of such product. . . .' In re Johanna Farms, supra, at 614. The Board concluded that it could not.
In concluding that 'LA YOGURT' was incapable of distinguishing applicant's goods, the Board criticized the evidentiary showing submitted by applicant as failing to address directly the question of how the ultimate purchasers actually perceive the term under consideration in the marketplace.
In the foregoing decision, one member of the three-Board-member panel dissented. The dissenting member indicated that she was not persuaded that the French speaking segment of the American purchasing public would perceive 'LA YOGURT' as a corruption of the generic name for 'yogurt' in the French language; that the term 'yogurt,' which the majority stated would likely be perceived as a misspelling of the French word for 'yogurt,' was, in fact, the common generic term for that product in English and that, as to the second basis for the majority ruling, namely, its belief that the presence of 'la' did not transform the English generic term 'yogurt' into a term capable of functioning as a trademark. She would allow 'LA YOGURT' to be registered on the Principal Register with a disclaimer of 'yogurt' under the rationale articulated in In re Universal Package Corporation, 222 USPQ 344 (TTAB 1984). In that case the mark 'LE CASE' was held registrable on the Principal Register for jewelry cases and gift boxes (with a disclaimer of 'CASE'). The Board reasoned that the combination of the French article 'LE' with the English word 'CASE' created a commercial impression different from that created by 'THE CASE' and that competitors would have no need to use the term 'LE CASE' to describe their goods.
*3 Applicant thereafter requested reconsideration of the Board's decision. Reconsideration was denied in a two-to-one decision, with the dissenting member remaining of the opinion set forth in her dissent in the initial decision.
The doctrine of stare decisis may be defined as the policy of courts to stand by precedent and not to disturb a settled point. See: Black's Law Dictionary, 5th ed. (1979). Essentially, this doctrine provides that, when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle, and apply it to all future cases, where the facts are substantially the same, regardless of whether the parties and properties are the same. Id. It is clear, however, that this doctrine is one of policy and whether a previous holding of the court shall be adhered to, modified, or overruled is within the court's discretion under the circumstances of the case before it. Id.
In the Examining Attorney's opinion, stare decisis precludes applicant from resubmitting the issue of genericness to the Board since the factual issue to be determined herein, namely, whether the phrase 'LA YOGURT' is a common name for yogurt, is identical to the factual issue already determined in the prior action. While noting that certain distinctions exist in the record presented herein compared with the record in the prior case, the Examining Attorney maintains that they do not represent changes in fact, law, or circumstances that would alter the outcome of the previous case.
Applicant, on the other hand, contends that changes in circumstances exist herein which preclude the applicability of stare decisis; that the Board's decision in the prior case was based on the factual record before it at that time; that the Board stated that the pivotal issue in the case was a factual one to be resolved on the evidence, namely, whether the relevant purchasing public regards the term as a common descriptive name; and that to overcome what was believed to have been an inadequate factual record, applicant has now introduced extensive factual evidence herein which was not of record in the prior case and which came into existence and was accumulated subsequent to the prior appeal, based on the Board's indication of what evidence was lacking in the prior case. Applicant, as further evidence that changed circumstances exist herein, points to the fact that its application herein is one for registration on the Principal Register under Section 2(f) with a disclaimer of 'yogurt', while the prior case involved an application on the Supplemental Register with no disclaimer; that the Universal Package case, supra, was on appeal at the same time as applicant's case; that the Universal Package case is on point with the present case and applicant was unable to discuss the ramifications of that decision in the prior case. Finally, applicant argues that in refusing registration in the prior case, the Examining Attorney was of the opinion that no amount of evidence submitted could result in registration of 'LA YOGURT' since said term was generic as a matter of law; that the Board, in its prior decision, believed the record was lacking in factual evidence to show the mark was distinctive; that applicant then unsuccessfully attempted to address these issues raised by the Board by requesting the Board to remand the application to the Examining Attorney for the purpose of allowing applicant to submit additional evidence, such as a survey; that when this request was denied, applicant filed a petition to the Commissioner to reopen prosecution to allow applicant to supplement the record; that this petition was denied and that applicant, thereafter, refiled this application in order to submit all the evidence the Board had suggested was lacking. Applicant concludes that to preclude registrability of the mark now, based on the application of the doctrine of stare decisis, is inequitable under the circumstances discussed above.
*4 The Board agrees with applicant that the Board's prior decision does not preclude registration of 'LA YOGURT' herein under the doctrine of stare decisis. As we stated in the case of In re Multivox Corp. of America, 209 USPQ 627, 630 (TTAB 1981), while stare decisis, which is based on adherence to precedents, is necessary to provide for uniform guidelines and principles so as to eliminate uncertainty and unnecessary litigation, the doctrine must be judiciously applied and applied not in so inflexible a manner as to ignore changes in fact situations and/or give rise to an inequitable situation or result.
Applicant, in the present case, has demonstrated that the factual situation herein is different from that presented in the prior proceeding. Applicant has submitted evidence in the nature of a survey and consumer letters dealing with the question of how purchasers perceive the designation 'LA YOGURT'. This evidence is clearly responsive to the suggestion in the prior Board decision that such evidence was lacking in the case and that such evidence was relevant. Johanna Farms, supra, at 615. Accordingly, we believe that, under the circumstances described herein, application of the doctrine of stare decisis would be inappropriate in view of the prima facie showing by applicant of changed facts and/or circumstances and would work an inequitable result.
More importantly, even if the doctrine of stare decisis would ordinarily be applicable in this situation to preclude registration of 'LA YOGURT', this augmented panel concludes that the prior Board decision was incorrect and is overruled. We find 'LA YOGURT' not to be a generic term and that said mark is registrable with a disclaimer of 'YOGURT'.
Our reasons for overruling the prior Board decision essentially are embodied in the dissenting opinion in the Johanna case, supra, at 617, 618. The first basis for the majority's conclusion that 'LA YOGURT' was a generic designation was its finding that, to members of the purchasing public who are French in language and culture, 'LA YOGURT' would be perceived as a variation or corruption of the generic name of 'yogurt' in the French language and that said term, therefore, was unregistrable under the doctrine of foreign equivalents. We do not believe that the French speaking segment of the purchasing public in the United States would perceive the mark as a corruption of the French generic term for 'yogurt' and we do not believe the record herein supports such a finding. [FN4] Rather, we agree with the dissent in the prior case that the difference between the situation presented herein and that in the 'misspelled foreign generic term' cases cited in the majority opinion in the prior case, namely, Weiss Noodle Co., supra; In re The Coney Island Bredzel Co., 199 USPQ 45 (TTAB 1978); In re Jacqueline Cochran, 196 USPQ 715 (TTAB 1977); In re Zazzara, 156 USPQ 348 (TTAB 1967); In re Hag Aktiengesellschaft, 155 USPQ 598 (TTAB 1967); In re Monarch Wire Co. of Georgia, 117 USPQ 454 (Com'r 1958); Coty v. Lancome S.A., 88 USPQ 300 (Pat. Off. Ex'r-in-Chief, 1951); Otard, Inc. v. Italian Swiss Colony, 141 F.2d 706, 61 USPQ 131 (CCPA 1944), is that the word 'yogurt', supposedly perceived as a corruption or misspelling of the French word for yogurt, is the common English generic term for the goods. Compare: In re Bonni Keller Collections, 6 USPQ 2d. 1224 (TTAB 1987) ('LA LINGERIE' found to be a generic term in the French language and unregistrable for clothing, namely, undergarments and for retail store services in the field of clothing).
*5 Our conclusion is supported by the record in this ex parte proceeding, which demonstrates that the primary significance of LA YOGURT to most of the relevant public is that of a brand name and not a generic term. There is no dispute that 'the burden of showing that a proposed trademark is generic remains with the Patent and Trademark Office,' and that this burden of proof must be satisfied with 'clear evidence of generic use.' In re Merrill Lynch, 828 F.2d 1567, 4 USPQ2d 1141, 1143 (CAFC 1987). Not only has the Examining Attorney failed to carry this burden, but the applicant has submitted numerous consumer letters and a survey showing that most members of the relevant public do not 'primarily use or understand the term [LA YOGURT] to refer to the genus of goods [yogurt] . . ..' H. Marvin Ginn Corp. v. International Association of Fire Chiefs Inc., 782 F.2d 987, 989-90, 228 USPQ 528, 530 (Fed. Cir. 1986).
Applicant submitted 305 letters from consumers in which the mark LA YOGURT appears. In the overwhelming majority of these letters, LA YOGURT is used by the authors in a trademark manner and is distinguished from the generic term 'yogurt.' It is significant to note that the 305 letters received by the applicant were unsolicited, and that these 305 letters comprise all, not just selected portions of, the consumer correspondence received by applicant during calendar year 1984 in which mention was made of LA YOGURT.
While certain aspects of applicant's particular Teflon style survey can be criticized, its results (even if discounted somewhat) coupled with the aforementioned consumer correspondence demonstrate that most users and purchasers of yogurt view LA YOGURT as identifying a brand and not a product category.
With respect to the second basis on which the majority in the prior Board decision concluded that 'LA YOGURT' was generic, namely, its finding that the addition of the French article 'la' to the English generic 'yogurt' cannot transform the English word 'yogurt' into a registrable mark, we reach a contrary decision under the rationale expressed in the Universal Package case, supra. We believe, as did the Board in the Universal Package case, that the use of the French article combined with the English generic changes the commercial impression of the mark as a whole. As the Board stated in Universal Package, citing In re Abcor Development Corp., 577 F.2d 811, 200 USPQ 215 (CCPA 1978), the need for competitors to use a term is a critical aspect of an analysis of registrability of a designation. Competitors in the yogurt field obviously have every right to use the generic term for the goods. Applicant itself concedes as much by virtue of its disclaimer of the generic term 'yogurt' apart from the mark as a whole. We conclude, however, that competitors have no need to use applicant's 'LA YOGURT' mark as a whole other than to trade on applicant's goodwill.
FN1. Application Serial No. 542,343 filed June 11, 1985.
FN2. In re Johanna Farms, Inc., 222 USPQ 607 (TTAB 1984), reconsideration denied, 223 USPQ 459 (TTAB 1984).
FN3. Application Ser. No. 171,952 filed May 25, 1978.
FN5. Survey B discussed in E.I. du Pont de Nemours & Co. v. Yoshida, Inc., 393 F. Supp 502, 185 USPQ 597, 615-616 (E.D.N.Y. 1975).
FN6. The dissenting member states that in his view 'the proper universe of respondents should include only those with fluency in the French language [12 of the 400 respondents] and not those who have taken only three or more years of French [47 of the 400 respondents].' The concern is that those who have simply taken three or more years of French would not be aware of any French word for 'yogurt.' We are of the view that most individuals who studied French for three or more years would be aware of a French generic term for the English word 'yogurt.' Moreover, even assuming, arguendo, that of the 59 respondents who either spoke French fluently or studied it for three or more years, the 2 (i.e. 3 percent) who said LA YOGURT was a product category were also among the 12 of the 59 who spoke French fluently, this would nevertheless mean that 83 percent of the respondents who spoke French fluently (10 of 12) viewed LA YOGURT as a brand and not as a product category. While in most situations, as noted by the dissent, 12 may well be too small a number to constitute a meaningful sample, it must be remembered that this is an ex parte proceeding where the burden is not on the applicant to establish that its mark is not generic, but rather is on the Examining Attorney to establish that the mark is generic.
FN7. While applicant is free to seek registration pursuant to Section 2(f) of the Act, we do not believe reference to Section 2(f) is necessary since we do not believe the expression 'LA YOGURT,' taken as a whole, is merely descriptive. Accordingly, this case will be held for thirty days from the mailing date of this decision to allow applicant time in which to file, if it so desires, an amendment deleting the claim of acquired distinctiveness pursuant to Section 2(f).
I would affirm the Examining Attorney's refusal to register the term LA YOUGURT because our law prohibits registration of foreign equivalents of English generic terms and would hold that applicant's asserted mark is merely the incorrectly gendered French generic or a corruption of the French generic.
*7 As the Examining Attorney contends, a generic foreign word or phrase is no more registrable than its equivalent in English, regardless of the meaning of the foreign word or phrase to the general public. [FN1] This doctrine applies with equal force to misspellings, corruptions and variants of the foreign term. In this regard, the test is whether the misspelling, variant or corruption of the term is perceived as such by purchasers knowledgeable of the foreign language, irrespective of whether the language is sufficiently known so that others in the United States would have the same perception. Weiss Noodle Company v. Golden Cracknel and Specialty Co., 290 F.2d 845, 129 USPQ 411, 413 (CCPA 1961) (registration of 'HA-LUSH-KA' for egg noodless and egg noodle products cancelled because term was nothing more than a hyphenated, phonetically spelled version of the Hungarian word 'haluska,' equivalent of 'galuska,' meaning 'noodless, dumplings'). This holding was made despite the finding that there was no such word as 'HA-LUSH-KA' in the Hungarian language. Nevertheless, the court refused registration of the Hungarian name for noodles ('haluska') or its phonetic equivalent in English, whether or not hyphenated. The court observed that merely to hypenate the phonetic version does not destroy the term's identity. Similarly, as more fully explained below, I do not believe that applicant's asserted mark with the incorrect article has trademark significance. See also In re The Coney Island Bredzel Co., 199 USPQ 45 (TTAB 1978) (BREDZEL, phonetic equivalent of German term 'brezel,' held not capable of distinguishing pretzels); In re Jacqueline Cochran, 196 USPQ 715 (TTAB 1977) (AIROMATIQUE, misspelling of French word 'aromatique,' not capable of distinguishing toilet water [FN2]; In re Hag Aktiengeselschaft, 155 USPQ 598 (TTAB 1967); (KABA, a corruption or misspelling of 'kava,' Serbian and Ukranian word for coffee, held incapable of distinguishing such goods); In re Monarch Wine Co. of Georgia, 117 USPQ 454 (Com'r of Pats. 1958); (VINKA held apt name for wine in that Polish word 'winka,' a diminutive of 'wino,' is pronounced 'vinka') and Coty v. Lancome S.A., 88 USPQ 300 (Pat. Off. Ex'r-in-Chief 1951) (KYPRE, corruption of 'chypre,' generic name of non-alcoholic mixture of oils and resins, used as perfume base, not registrable). See also Bureau National Interprofessionnel du Cognac v. International Better Drinks Corporation, ______ USPQ ______, Opp. No. 72,088, slip op. at 18 (TTAB March 17, 1988) (wherein the term COLAGNAC was held deceptive within the meaning of Section 2(a) because, among other things, purchasers who encounter applicant's cola liqueur bearing the mark are likely to believe that the mark is a misspelling of COGNAC) and Antillian Cigar Corp. v. Benedit Cigar Corp., 218 USPQ 187, 188 n. 1 (TTAB 1983) (ANTILAS considered mere misspelling of geographically descriptive name 'Antillas').
*8 The primary understanding of the term to the relevant purchasing public may be ascertained from any competent source, such as dictionaries and other publications. In re Abcor Development Corporation, 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978). While the Examining Attorney might have attempted to obtain evidence of the significance to French-speaking persons by seeking an affidavit from, for example, a professor of French at a local university, who might have been able to indicate the likely significance of the term to the average French-speaking person, I note that similar evidence was not required in many of the cases cited above.
I'm not a linguist, but I'm sure you're right about the correct spelling of the masculine noun and its article in the French, Le yogurt. But the word 'yogurt' is an American word as well as the French word, and its roots extend to eastern Europe. In this country, as this food has become popular over the last forty years, the product has been spelled many different ways, including yagourt, yoghurt, and several other variations. The spelling of the word in the American language has evolved, as the consumption of the product has grown, until now almost everyone in this country uses the spelling, yoguart.
Also, with its application in this case, applicant filed a sixteen-page paper captioned 'Preliminary Communication', in which applicant again stated (at page 15) that 'le yogurt' is the French generic.
Indeed, it would not be surprising if the English word 'yogurt' were used as an acceptable variation in the French language in view of the relatively common practice for the same term to be adopted in more than one language. As pointed out by the majority in Johanna Farms I, there is considerable interchange between the English and French languages. Languages are not static and are constantly being affected by each other. For example, phrases such as 'le hamburger' have apparently become common expressions in the French language. One might expect that other terms, especially for food products, would be incorporated into the French language. Thus, I have no reason to doubt the conclusion of the majority in Johanna Farms I that the term LA YOGURT would be perceived as an incorrectly gendered generic name for yogurt in the French language, designating the nature of the product and not its source. Therefore, neither the incorrect gender nor the insignificant difference in spelling of the term is sufficient, in my view, to alter the perception by such purchasers that the term serves only to indicate the nature of the goods. This is especially so in view of the number of variations of this Turkish word.
However, even assuming that 'le yogurt' is not a proper spelling of the French generic, I would still affirm the refusal for the primary reason expressed by the Board majority in Johanna Farms I, that is, that LA YOGURT is a corruption or variation of the French generic. Had applicant tried to register the term 'le yogourt' (or even 'la yogourt'), this Board would have refused registration on the ground that registration is not permitted of a common descriptive term in a foreign language. What the Board has done here, however, is to permit registration of essentially a phonetic equivalent (LA YOGURT instead of 'le' or 'la yogourt') because it does not believe that the French-speaking segment of the purchasing public in the United States would perceive the mark as a corruption of the French generic. I cannot agree. In view of the number of spellings for 'yogurt' in the French language, I believe that French-speaking persons are likely to perceive the asserted mark, with one letter difference in spelling, as another variation of the generic word in French.
Underlying the rule prohibiting the registration of generic terms is the important goal that competition should not be restrained in the use of descriptive and common descriptive names to identify goods and services. Extending this rule to foreign equivalents preserves fair competition in international trade. [FN5] To put the shoe on the other foot, the consequences of registration in a foreign country of a corruption or phonetic equivalent of an English generic is distressing to merchants who are thereby hindered in their efforts to sell their products abroad. Those merchants would be harmed if foreign countries protected such corruptions or misspellings, exposing them to potential harassment and interference with the free use of English generic words. Indeed, through the efforts of the united States Trademark Association and its Generic Word Program, this office often contacts the appropriate U.S. embassy or foreign service post to intercede with local administrative offices in attempts to secure denial or rejection of applications that seek to register English generic words. For example, in a recent USTA bulletin, the following misspellings or corruptions of English words had been sought to be registered as trademarks in foreign countries: Colagen (instead of collagen), Decongestan, Skin Freshner, Medicall, Akne and Electrolit Solucion Oral (Vol. 37, No. 42, Nov. 17, 1982).
Moreover, there is nothing in the Trademark Clarification Act of 1984, which amended 15 USC 1064(c) by mandating use of the primary significance test in cancellation proceedings, which alters the rule in Weiss Noodle that secondary meaning cannot rescue a generic term. In re Le Sorbet, 228 USPQ 27, 32 (TTAB 1985).
FN1. A generic term is the common descriptive name of a class of goods or services and can never be registered as a trademark because it is incapable of acquiring de jure distinctiveness under Section 2(f) of the Act. H. Marvin Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986). Of course, if a term is incapable of distinguishing applicant's goods or services, then inquiry into acquired distinctiveness is unnecessary. In re Northland Aluminum Co., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1986).
[I]t is believed that purchasers, familiar with the French language, would recognize applicant's mark, 'AIROMATIQUE', as merely a misspelling and the phonetic equivalent of the word 'AROMATIQUE,' which is the French equivalent of the English word 'AROMATIC', which applicant concedes is merely descriptive of its goods . . .
FN3. In its reply brief, applicant contends that the Examining Attorney's reliance upon this statement in his appeal brief is unjustified and that 'Yogurt is not the French word for the same product.' (Reply brief, 12). It is not seen how the statement made in applicant's Preliminary Communication is taken 'out of context,' as applicant contends. Rather, applicant has obviously changed its position.
FN4. Without commenting upon the merits of applicant's assertion of rights, we note that applicant has apparently sought to stop the use by another of the term LE YOUGHURT.
FN5. It is noted that a higher percentage of the total survey respondents (ten percent) thought that LA YOGURT was a product category than any other of the brand names presented to the respondents.

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


text:
Abstract: It is the contention of this Article that modern philosophical hermeneutics helps us to reshape the principles for claim interpretation. Hermeneutics is the task of deciphering text. Philosophical hermeneutics is especially relevant for law, which is grounded in the interpretation of authoritative texts from the past to resolve present-day disputes. It holds that the interpretive process is full of individual subjectivity, creativity, and community involvement. Based on the new theory, this Article proposes a dynamic framework for claim interpretation in the context of infringement. Under the dynamic approach, a claim term conveys a practical and operational meaning. This meaning “involves characterization of the [technical content] to which it is applied.” However, due to continuous technology change and development, a gap of understanding about what the technical content is may be formed between the context in which the invention was made and the current context in which new technologies emerge. According to philosophical hermeneutics, interpretation involves a “fusion of horizons” where past and present are merged. A shared expression of the technical content is identified through a skilled person’s expectation of properties at the time of the invention and his evaluation of properties at the time of interpretation.
Patent claim construction is the means to an end to determine an appropriate scope of protection. In analyzing the infringement issue, interpreters can explore the implication of the gap of understanding technical properties between different contexts: whether the actual properties fall below, meet, or exceed the original expectation, and how these results affect the balance between the protection of monopoly rights and the diffusion of innovation. The dynamic approach emphasizes the relatedness of language to reality, thereby strengthening the interpreter’s engagement with the science and technological community and increasing the likelihood of acceptance of a decision. It also encourages the interpreter to make practical reasoning on different understandings of the claim meaning between the past and present technology contexts, as well as their effects upon the determination of patent scope. The dynamic approach attempts to make the interpretive process more transparent and justifiable. Philosophical hermeneutics can hopefully bring fresh insights into the ongoing issues in claim interpretation.
About: Yale Law School, J.D. 2012; Columbia University, B.A. 2009. Thank you to Barton Beebe, for his helpful commentary, to Ariane Lourie Harrison, for a wonderful class on architectural theory, to the editors of the Texas Intellectual Property Law Journal, for their amazing editorial assistance, and to Paul Laskow, who continues to surprise me each day with his insight and infinite patience. This Article benefited greatly from comments received at the Yale Law Teaching Series Workshop. An earlier version of this Article won the Yale Law School Nathan Burkman Memorial Prize for Best Paper(s) on Copyright Law. For details, see http://www.law.yale.edu/intellectuallife/xtang.htm.
Rather, I argue that a broader, more protective “total concept and feel” test, like the one applied in the 2005 S.D.N.Y. opinion Shine v. Childs, is a valid reading of the Act, and contrary to prior arguments, is the best standard for promoting progress in the architectural field. This point is all the more elucidated with a look at current developments in architectural theory and work that have made an aesthetic mantra out of externally-determined factors like zoning laws and economic efficiency, or at architecture that yearns to be revolutionary, rather than the mere puppet of market demand. For these reasons, I propose a simple two-step standard that addresses the fear of undue monopolies on useful forms while ensuring broad copyrightability for all styles of architecture.
Above all, this Article argues that to deride architectural protection as merely a necessary evil–a by-product of the Berne Convention–that is at odds with the traditional limitations against copyrightability of useful articles is to restrict the very definition of architecture itself. That is, the argument (which Congress equivocally adopts) necessarily rests on a specific notion of what architecture is and promotes a definition that relies wholly on just one narrative of architectural design and meaning-making. By widening our understanding of architecture beyond that of the legislative history, this Article also hopes to reconcile the current split in the courts (as well as within the scholarly literature) between progress and protection by showing that the two, like Graves’s man vs. machine dichotomy, are not mutually exclusive.
Abstract: The Leahy-Smith America Invents Act (AIA) is now law. Well, sort of. The transition provisions are complex and many of them depend heavily on the effective filing dates of the various claims in a patent application or issued patent. As a result, the “old” 1952 law’s provisions on novelty will remain until all the claims of a patent involved in an infringement suit have effective filing dates after March 2013. So in litigations the old law cannot be forgotten for the next twenty years or so; in patent prosecution the old provisions end somewhat sooner, persisting in a significant degree for perhaps only another ten years.
About: Visiting Scholar, U. Miami, School of Law, E-mail: svermont@mac.com.
Abstract: The Copyright Office’s view, and the conventional wisdom, has long been that clothing design is uncopyrightable. Accordingly, the creative segment of the fashion industry has long pressed for an amendment to the Copyright Act or for sui generis protection. The latest bill, the Innovative Design Protection and Piracy Prevention Act, is modest enough to stand a fighting chance at passage. Its protection is short: 3 years, as opposed to the regular copyright term of life of the author plus 70 years. Its protection is also thin: to infringe P’s clothing design, D’s clothing design must be “substantially identical,” meaning “so similar in appearance as to be likely to be mistaken for” P’s clothing design. In other words, D’s design must be a near counterfeit, not merely “substantially similar” to a portion of P’s design.
Opponents of the bill might want to reconsider. The official rationale for denying copyright to clothing, that a garment is a “useful article” whose aesthetic features are inseparable from its utilitarian function, is unsound and thus may give way in time, especially if the bill fails. That is, if the bill fails, and if clothing designers appeal registration denials by the Copyright Office or file declaratory judgments to compel the Office to stop classifying clothing as per se uncopyrightable, and if the designers ask the appellate courts to squarely confront the issue on its substantive merits, the courts may eventually hold that fanciful clothing is protectable under regular copyright.
If the bill passes, the sui generis protection would likely preempt regular copyright, partly as a matter of statutory construction and partly because sui generis protection would eliminate an otherwise compelling policy reason for protecting clothing under regular copyright. The compelling policy reason is that clothing design needs protection more than in the past, because clothing designs can now be copied so easily that the copies sometimes hit the shelves before the originals.
About: Associate, Winston & Strawn LLP, Houston, Texas. This paper’s contents do not reflect the views of Winston & Strawn LLP or any of its clients.
Abstract: Patent infringement actions have reached costs exceeding $5 million when greater than $25 million is at risk. More than half of those costs are related to discovery. This paper examines the strategies that can be used to reduce these spiraling discovery costs that result from the production of electronically stored information (ESI). Such measures include using the latest electronic discovery (e-discovery) production tools, such as predictive coding. Predictive coding is emerging as a faster, more cost-effective and efficient alternative to traditional manual or linear document review. This tool, which may save litigants millions of dollars in discovery costs, is obtaining increased acceptance in the courts and the legal community.
Another strategy litigants can use to reduce e-discovery costs includes implementing versions of the Federal Circuit’s and the Eastern District of Texas’s “Model Orders Regarding E-Discovery in Patent Cases,” the Seventh Circuit’s “E-Discovery Pilot Program and Model Order,” the District of Delaware’s “Electronic Discovery Default Standards and Access to Source Code,” and the Southern District of New York’s “Pilot Program for E-Discovery.” These model orders, standards, and pilot programs are the result of successful collaboration between the bench and bar to address, specifically, the rising costs and difficulties of managing e-discovery in patent and complex commercial cases.
While tools like predictive coding and model orders can reduce ESI production costs, the joinder provision of the recently-enacted Leahy-Smith America Invents Act (AIA) may create some challenges for defendants who want to continue to share their discovery and litigation costs. This paper discusses the strategies that defendants can use under the AIA to continue to share these costs. It also discusses how the courts are managing the many pre- and post-AIA filed patent infringement cases and how the courts’ management of these cases may affect discovery costs.
Abstract: Recent cases suggest that the Federal Circuit is primed for a post-Bilski, post-Mayo, Section 101 dispute. But a funny thing happens on the way to the Federal Circuit: patent infringement actions pass through federal district courts. At least some of those district courts appear to see Section 101 not as a jurisprudential “morass,” but as the straightest line to a final judgment. In this article, we lay out the terms and the stakes of the debate between the functional and jurisdictional views articulated in the Federal Circuit’s post-Bilski case law. We then consider what light district court decisions applying Section 101 at an early stage of litigation can shed on the respective merits of those views by asking how the decisions were reached; what their fate was (or may be) on appeal; what influence they may have on district court practice in patent cases; and, most importantly, what they tell us about the proper role of Section 101 in patent litigation. We conclude by casting our lot with the jurisdictionalists.
Author: Michael S. Mireles Jr.
About: Professor of Law, University of the Pacific, McGeorge School of Law. The author is grateful for comments from the participants, including William H. Brewster, T. Robert Rehm, Jr., Simone Rose and Jeff Slattery, of the March 2012 Wake Forest University Journal of Business and Intellectual Property Law Symposium “Avenue of the Arts: Connecting Creativity, Economics and the Law” on an early version of this Article. The author is also thankful for the comments from Gary Pulsinelli, and the editors of the Texas Intellectual Property Law Journal, including Matthew Tanner and Jill Harris.
Abstract: This Article relies on several cases that demonstrate how aesthetic functionality can be used to suppress the cumulative excesses of trademark law. Based on those cases, this Article first proposes that functionality be used to police the boundary of copyright and trademark to prevent trademark protection of subject matter ordinarily protected by copyright law or in the public domain. Second, this Article asserts that aesthetic functionality is used in its defensive sense to relieve some alleged infringers or diluters from trademark infringement or dilution. Finally, this Article argues that functionality can be used as a policy lever to exempt certain subject matter from trademark protection in industries where that subject matter is fundamental to innovation in that field. Again, these three uses of functionality should be moored to the protection of competition.
The first section is a brief introduction. The second section discusses the troubling nature of trademark law and its cumulative excesses. The third section provides a discussion of the functionality doctrine with an emphasis on aesthetic functionality. The fourth section analyzes three new roles for aesthetic functionality to restrain trademark law’s cumulative excesses. Finally, a brief conclusion is offered.
About: Professor of Law, Baruch College, New York, New York; J.D., University of Pennsylvania Law School; B.A., Cornell University College of Arts and Sciences. E-mail: Donna.Gitter@Baruch.cuny.edu. I would like to thank Professors Daniel Cahoy and Lynda Oswald for inviting me to present this Work at the May 2012 Intellectual Property Law Colloquium at the University of Michigan Law School, Ross School of Business. The participants at that Colloquium offered valuable comments for which I am grateful. Thanks are also due to my colleagues in the Law Department at Baruch College, City University of New York, who offered helpful suggestions and insights at our Faculty Scholarship Workshop.
Abstract: Part II of this Article will discuss the importance of biologic pharmaceuticals, also known as biologics, in the health care market. Part III will examine Congressional intent when enacting the BPCIA, with respect to the establishment of market and data exclusivity periods for biosimilar pharmaceuticals, analyzing the plain language and legislative history of the Act. Part IV will then consider, apart from the legislative intent at the time the BPCIA was enacted, what the appropriate data exclusivity period ought to be. This Part will examine the academic literature relating to market and data exclusivity for biosimilar pharmaceuticals, in addition to the effect that the negotiation of international trade agreements has upon questions of data and market exclusivity.
About: Mr. Wilensky is a Patent Examiner and former associate at the law firm of Oliff & Berridge, PLC. The author would like to thank Jessica Cahill, Chris Crutchfield, Yankee Wilensky, and Chellie Goldwater for their comments and suggestions. The views in this Article are those of the author and do not necessarily reflect the views of the United States Patent & Trademark Office.
A statement by an applicant in the specification or made during prosecution identifying the work of another as “prior art” . . . which can be relied upon for both anticipation and obviousness determinations, regardless of whether the admitted prior art would otherwise qualify as prior art under the statutory categories of 35 U.S.C. 102. The effects of these admissions are binding, even if made in error. Yet despite the severity of such admissions, some aspects of the admitted prior art doctrine are still vaguely defined by case law. This Article will highlight two important areas where case law is unclear and discuss how future courts might rule on the subjects. This Article will also discuss how the 2011 America Invents Act affects admitted prior art law.
Section I summarizes the established portions of the admitted prior art doctrine. Section II discusses the unclear topic of the threshold between a mere statement and a binding admission in the background section of a specification. Finally, Section III addresses whether admitted prior art can be disqualified under 35 U.S.C. § 103(c).
Abstract: Owners of patents on internationally implemented processes could soon find themselves caught between a rock and a hard place in terms of legal remuneration. That is because process patents, made up of a number of discrete steps, receive no protection from infringement in the U.S. so long as one of any number of steps takes place abroad. In part due to the misusage of a statutory provision, 35 U.S.C. § 271(f), and in part due to judicial and legislative reluctance to create new law, this process patent problem represents an ongoing disjunction between what the law is–a fact-based, black-and-white determination of infringement–and what the law should be–a balanced and incremental finding of infringement where deserved. Not only does this process patent problem affect those patent owners who seek to enforce court-made judgments on infringement, it also affects patent owners seeking to resolve alleged infringement via alternative avenues. This note identifies the legal problem at its most fundamental level and attempts to address the problem’s inefficiencies and unintended consequences through the application of both positive and normative economic concepts.
About: B.S. Indiana University 1982; J.D. Indiana University 1985; LL.M. Candidate in Intellectual Property and Technology Law University of Dayton 2013. Copyright © 2013 Wayne A. Kalkwarf. All rights reserved.
Abstract: The biggest revision in American patent law in nearly six decades, the Leahy-Smith America Invents Act (AIA), Pub. L. No. 112-29, 125 Stat. 284 (2011) (codified as amended in scattered sections of 35 U.S.C.), was signed into law by President Obama on September 16, 2011. Despite six years and numerous unsuccessful bills attempting to reform this country’s patent system, Congress finally passed what has been called a compromised bill. The word “compromise” could not be more descriptive for section 15 of the statute. Congress allowed to continue the requirement that inventors must specify in a patent application the best mode or method for their inventions as inventors have been required to do for over 150 years. However, Congress also provided that the failure to reveal a patent’s best mode does not render the patent invalid, or subject to challenge during litigation. This unnecessary conflict can be resolved with only one solution which certain interests, including Congress, will find extremely distasteful.
About: Both authors are associates at Sidley Austin LLP in Dallas, Texas. The views expressed herein are our own. Any errors that remain are our own.
In this article, we analyze Judge Posner’s rationale and holdings based on the controlling law and possible outside norms that may have influenced Judge Posner. In Part II, we discuss the legal background upon which these decisions rest, including recent judicial trends in patent remedies and the standards for scrutiny of expert reports. In Part III, we review Judge Posner’s Daubert analysis in Apple and Brandeis and the subsequent dismissal of Apple. In Part IV, we analyze Judge Posner’s approach under the principles of legal pragmatism, including both economic and non-economic norms. Finally, in Part V, we consider whether Judge Posner’s approach could be adopted by district courts nationwide.
Abstract: Part I of this Article introduces the issue by briefly explaining the federal trademark registration process and the global costs associated with trademark infringement. Part II introduces the judicial framework under which the Supreme Court analyzed the extraterritoriality issue of the Lanham Act and the major circuit cases since the Supreme Court’s decision. Part III offers a possible solution to the resulting judicial confusion by adapting an approach from the First Circuit. Finally, Part IV explains why the First Circuit’s approach serves as an ideal model for the Supreme Court to consider adopting if and when it re-addresses the extraterritorial jurisdiction issue under the Lanham Act.
About: J.D. candidate, University of La Verne, College of Law, May 2013; Patent Agent, USPTO No. 70302.
Abstract: On September 16, 2011, President Obama signed the largest overhaul of the U.S. patent system in nearly 60 years, commonly known as the Leahy-Smith America Invents Act. The United States Patent and Trademark Office (USPTO) asserts that this legislation is the greatest overhaul since the 1836 Patent Act. While the changes are many, this Comment provides much-needed guidance in interpreting new statutory language undefined in the AIA itself, as we await the development of case law in the years to come.
The AIA amends Title 35 of the United States Code (35 U.S.C.). In this Comment, the 1952 Patent Act (as amended) will hereinafter be referred to as the “Old” Act and the AIA § 102(a) and (b) will hereinafter be referred to as “New” § 102(a) and (b). New § 102(a) and (b) contain some new terminology absent from the Old § 102(b), although much other terminology remains identical in both versions. This Comment focuses on the new statutory language in AIA’s New § 102(a) and (b) which will be replacing Old § 102(b) of the 1952 Patent Act. The new language is: “or otherwise available to the public” from New § 102(a) and “disclosure” from New § 102(b). As noted above, the motivation driving this statutory interpretation is to ensure small inventors have at least the same protections as under the Old Act.
Part II sets out why interpreting the new statutory language is important to the practice of patent law; Part III presents the statutory changes; Part IV provides an analysis of the legislative history ending with the author’s suggested interpretations; and Part V applies the suggested interpretations to existing patent case law. The Comment concludes with a suggested practice point for small inventors on how to best protect themselves under the AIA in the interim period until new case law emerges.

matches:
v.
sui generis
sui generis
sui generis
§ 103
§ 271
§ 102
§ 102
§ 102
§ 102
§ 102
§ 102
§ 102
§ 102


§5142. Mechanically Driven Heating, Ventilating and Air Conditioning (HVAC) Systems to Provide Minimum Building Ventilation.
§5143. General Requirements of Mechanical Ventilation Systems.
§5145. Media for Allaying Dusts, Fumes, Mists, Vapors, and Gases.
§5146. Internal Combustion Engine Exhaust Emission Control.
§5147. Respiratory Protection for M. Tuberculosis.
§5148. Prohibition of Smoking in the Workplace.
§5150. Ventilation and Personal Protective Equipment Requirements for Welding, Brazing and Cutting.
§5151. Ventilation and Personal Protective Equipment Requirements for Abrasive Blasting Operations.
§5152. Ventilation and Personal Protective Equipment Requirements for Grinding, Polishing, and Buffing Operations.
§5153. Ventilation and Personal Protective Equipment Requirements for Spray Coating Operations.
§5154. Ventilation and Personal Protective Equipment Requirements for Open-Surface Tank Operations.
§5154.1. Ventilation Requirements for Laboratory-Type Hood Operations.
§5154.2. Ventilation Requirements for Biological Safety Cabinets.


text:
On this week's brand new edition of the show, since it's the first of March, I thought it appropriate to start off with some marches! We'll also celebrate the birthdays of Stan Greening and Rubey Cowan, play hide and seek and listen to this day in recording history. Once again, a number of records on this edition of the show are making their RRR debut. As always, just click on the link below to listen streaming online and/or download the show. Your comments, requests and topic suggestions are always welcome. What is your favorite record on this week's show??
The Moonlight March – Ted Wallace and His Campus Boys / Smith Ballew +2, v.
Marching Along Together – Ben Bernie AHO / Manny Prager, Ben Bernie, v.
March Of The Musketeers – Arnold Johnson AHO / Lewis James, Elliott Shaw, Wilfred Glenn, v.
Yummy Yum Yum – Raymond Dance Orchestra / Robert Carr, v.
Them There Eyes – The Midnight Minstrels / Tom Barratt, v.
Would You Like To Take A Walk? – The Society Serenaders / Dan Donovan, v.
I'm A Seeker Of Beauty – Ted FioRito AHO / Muzzy Marcellino, v.
Brother, Seek And Ye Shall Find – Fats Waller and His Rhythm / Fats Waller, v.
Mine, All Mine – Ben Bernie and His Hotel Roosevelt Orchestra / Scrappy Lambert & Billy Hillpot, v.
Dream House – Bar Harbor Society Orchestra / Arthur Fields, v.
It's No Use, I'm In Love – Harry Roy and His Cafe Anglais Orchestra / Harry Roy, Bill Currie and Ivor Moreton, v.
Puttin' On The Ritz – Carl Webster's Yale Collegians / Stew Pletcher, v.

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


AC39077 - State v. Holmes (Felony murder; home invasion; conspiracy to commit home invasion; criminal possession of pistol or revolver; "The defendant, Evan Jaron Holmes, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, home invasion in violation of General Statutes § 53a-100aa (a) (2), and conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 (a) and 53a-100aa. The defendant also appeals from the judgment of conviction, rendered after a trial to the court, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217.
The Connecticut Law Journal for August 29, 2017 is now available.
New Britain Law Library will be closed from 12:30 p.m. - 2:00 p.m.
Hartford Law Library will be open until 3:30 p.m.
New Britain Law Library will be open from 9:00 a.m. - 4:00 p.m.
Torrington Law Library will be open from 9:00 a.m. - 3:15 p.m.
Rockville Law Library will be open until 3:00 p.m.
Danbury Law Library will be closed.
AC38045, AC38083 - Freese v. Dept. of Social Services, Cariglio v. Dept. of Social Services (Administrative appeals; "Our Supreme Court has construed remedial statutes liberally to give effect to their purpose. See Dorry v. Garden, 313 Conn. 516, 533, 98 A.3d 55 (2014). The plaintiffs, Kathleen Freese and Gustav Cariglio, appeal from judgments of the trial court dismissing their administrative appeals. The principal issue in these cases is whether General Statutes § 52-109, a remedial savings statute, could be utilized by the plaintiffs to save from dismissal their administrative appeals commenced in the names of the wrong persons as plaintiffs.
The Judicial Branch has posted recently adopted revisions to the Rules of Appellate Procedure, to take effect on October 8, 2017.
The amendments were approved by the Appellate Court on July 6, 2017 and by the Supreme Court on July 19, 2017. The amendments make changes to rules 62-7, 62-8A, 63-1, 66-8, 67-8, 72-2, 72-3, 79a-2, 82-5 and 82-6.
The Connecticut Law Journal for August 22, 2017 is now available.
The 2017 edition of Assumed or Fictitious Names in Connecticut has been posted to our research guides page.