Standard of proof - affidavits: "beyond reasonable doubt"
See point 3.2.2.2 of the Reasons.
D2: EP 07014824.2 (filed on 27 July 2007).
A4: "HLBS values in Scheduling Information message", Change Request, ASUSTeK, 3GPP TSG-RAN2 Meeting #54, draft Tdoc R2-062399, pp. 1-5, 28 August 2006 to 1 September 2006.
on the grounds that it could not prove that it was "successor in title" to the right to claim priority from application P within the meaning of Article 87(1) EPC 1973.
II. During the opposition proceedings the patent proprietor argued that priority application P, filed by the inventor Sam Shiaw-Shiang JIANG, had been transferred, by a first transfer, to the Taiwanese company ASUSTeK Computer Inc. (henceforth "ASUSTeK") and then, by a second transfer, to the patent proprietor. The opposition division held that the first transfer was sufficiently proven. However, it did not accept the validity of the second transfer, which the patent proprietor had attempted to substantiate by means of three separate legal lines of argument, each based on a different type of transfer, namely (1) a transfer by way of a "nunc pro tunc assignment" under US law, (2) an "implicit transfer" under German law and (3) a "direct transfer" under US law.
The first line of argument was rejected by the opposition division on the grounds that a retroactive assignment of the right of priority was contrary to the provisions of Article 87(1) EPC 1973 and that thus its allowance would override fundamental principles of the EPC, i.e. the lex fori in this case (cf. appealed decision, Reasons 5.14). The second line of argument was not accepted either on the grounds that German law, which the patent proprietor believed to be applicable based on the principles of favor negotii and the lex loci protectionis, was in fact not applicable to the present case (cf. appealed decision, Reasons 5.16 and 5.17). Lastly, the proprietor's third line of argument did not succeed on the grounds that the direct transfer of another US non-provisional application (henceforth "D1") from ASUSTeK to the patent proprietor did not necessarily include the transfer of application P and the associated right of priority (cf. appealed decision, Reasons 5.18 and 5.19).
A16: patent proprietor's letter dated 21 January 2013 filed in the opposition proceedings regarding its European patent EP-B-2 077 691 (underlying pending appeal case T 1763/13).
The patent proprietor filed exhibits E1 to E8 for the first time with its letter dated 30 September 2013 in response to the summons to oral proceedings before the opposition division and exhibits E10 to E16 with its letter dated 22 October 2013 shortly before the date scheduled for those oral proceedings, which the opposition division decided to postpone as a result. The opposition division admitted evidence E1 to E8 and E10 to E16 into the proceedings due to their prima facie relevance to the question of succession in title under Article 87(1) EPC 1973. Furthermore, it refused the proprietor's request for the exclusion from file inspection of two certificates (which were marked as confidential), filed as evidence of a change of its address.
IV. With its statement setting out the grounds of appeal, the appellant re-submitted those certificates (i.e. E18 and E19) as evidence of change of address together with an excerpt (i.e. E20) from the travaux préparatoires to Article 88 EPC. It requested that the decision under appeal be set aside and that the patent be maintained as granted. In particular, it advanced additional arguments in support of the validity of the succession in title with regard to the patent's priority claim relating to two lines of argument invoked so far, namely the nunc pro tunc assignment under US law and the implicit transfer under German law. However, concerning the direct transfer under US law, it merely indicated that it maintained the arguments that it had presented during the opposition proceedings.
However, it did not dispute the opposition division's decision to refuse the request to exclude the corresponding certificates from file inspection.
VI. In its letter of reply dated 8 December 2014, the respondent requested that the appeal be dismissed. Further, it requested that the opposition division's decision to admit exhibits E1 to E8 and E10 to E16 into the proceedings be overruled on the grounds that the opposition division had not exercised its discretionary power in accordance with the right principles. In particular, it provided arguments, supported by references to evidence including exhibits A7, A8, A13 and A15 and to the relevant jurisprudence of the Boards of Appeal, to demonstrate that the appellant was not the valid successor in title with respect to the priority claim.
VII. By letter dated 29 July 2015, the appellant elaborated on its previous arguments as to the first and second lines of argument, and also introduced a fourth line of argument based on a new type of transfer, namely (4) an "implicit transfer" under Taiwanese law.
VIII. In a communication annexed to the summons to oral proceedings pursuant to Article 15(1) RPBA, the board gave its preliminary opinion on the appeal. In particular, it considered that - irrespective of the issue of the applicable national law - the appellant had not sufficiently and cogently established the validity of the transfer of the right of priority from ASUSTeK to the appellant (cf. board's communication, point 6.3; emphasis added).
IX. By its letter of reply to the summons, the appellant submitted counter-arguments to the observations made in that communication.
X. The respondent, in its letter of reply to the summons, reiterated its request that the decision of the opposition division to admit exhibits E1 to E8 and E10 to E16 be overturned. It further requested that the appellant's newly submitted fourth line of argument, including exhibits TW1 to TW3, should not be admitted into the appeal proceedings under Article 13(1) RPBA.
"1. Does the code of rules of the EPC on priority prohibit a retroactive transfer of a right of priority as such, even if applicable national law allows such retroactive transfer?
3. Same as question 2, circumstances as set forth under a.), where the retroactive transfer is replaced by an agreement which is concluded later between the parties that confirms the earlier agreement and wherein said later agreement meets said certain formal requirements.
4. Are there other relevant facts and circumstances that influence the answers to the above questions, in particular, regarding the nature of the relationship between the parties to the transfer or the behavior of the parties after the filing of the European patent application?
5. Is the relevant point in time at which a succession in title for the right of priority has to have taken place, so that the subsequent European patent application can validly enjoy the claimed right of priority of the first application, the date of the filing of the European patent application, the date of the priority declaration or other?"
"We object to a fundamental violation of Art. 113 based on that the Board did not identify the applicable national law for determining validity of the transfer of the right of priority, thereby violating appellant's right to be heard."
3) its address be changed according to its letter dated 24 July 2014.
- The respondent's final request was that the appeal be dismissed.
At the end of the oral proceedings, the board's decision was announced.
the value of the HLBS index is set to 15 when the HLBS value is greater than 100."
Generally, the formal requirements for a valid transfer of the right of priority were to be derived from the applicable national law. The successor in title according to Article 87(1) EPC 1973 had to be capable of benefiting from the EPC within the meaning of Articles 2 and 3 EPC 1973 and thus should not be confronted with undue hurdles where the former owner of the priority application and his successor in title were in agreement on the succession, as evidenced by the following four lines of argument (i.e. types of transfers).
Assuming that the law of the country where the first application P was filed, namely US law, was considered to be the law to be applied to the second transfer, the nunc pro tunc assignment of the right of priority (dated 14 December 2012), as evidenced by E5 and E6, was allowable under the EPC. Articles 87 to 89 EPC by no means excluded a retroactive transfer of the right of priority from having an effective date (i.e. 24 July 2007 here) lying before the filing date of the later European patent application D2 (i.e. 27 July 2007), so that the required succession in title had effectively taken place at said effective date and thus before the filing date of application D2. It was not disputed that Article 87(1) EPC 1973 required a succession before the filing of the later European application. However, whether the succession in title under Article 87(1) EPC 1973 could have a retroactive effect was not a question of provisions contained in the EPC but a question of the applicable national law.
In this regard, the appellant stressed that US law acknowledged a nunc pro tunc agreement as valid. If the exclusion of such succession in title from being effective before the filing date of the later European application had been intended, then Article 87 or 88 EPC would have included clear requirements in this regard and would not have left the public in doubt as to such an important restriction that would overrule the relevant national law. The application of national law did not leave room for a mixture where the relevant national provisions were applicable for some aspects of scrutinising the formal validity of the succession in title but not for others. The case law of the Boards of Appeal did not support a construction of a mixture of formal requirements for determining the validity of a succession in title, where some ingredients were taken from an applicable national law and some from allegedly inherent principles which at best were suggested by statements in commentaries, as had been set out in the decision under appeal. As to the concept of "legal certainty", to which the impugned decision referred, primarily the parties to the assignment of a right of priority were interested in having legal certainty in case of dispute. For those parties considerations on legal certainty meant that, absent statutory regulations providing for a specific form or contents, they were free to agree on the transfer as they deemed fit. In the present case, neither the parties involved nor any third party had ever argued that there were conflicting successions in title, so that legal certainty was clearly respected.
Assuming that, based on the principle of favor negotii or the lex loci protectionis, the law of one of the designated EPC Contracting States (such as Germany) was considered to be the law to be applied here, an implicit transfer according to a general policy set up between ASUSTeK and the appellant at the end of 2006 for filing patent applications worldwide was evidenced by exhibits E10 to E15.
German law had no particular statutory formal requirements for a transfer of the right to claim priority to be made in writing, and this allowed for an oral, tacit or implicit transfer. This was most prominently demonstrated by the decision of the German Federal Court of Justice (Bundesgerichtshof) - Fahrzeugscheibe in E16 concerning the evidence of such an implicit transfer between closely connected entities.
Regarding the second transfer, ASUSTeK and the appellant had acted on the basis of a so-called general policy according to which, beginning from the end of the year 2006, ASUSTeK's intellectual property rights in the field of telecommunications standards - with the exception of six specifically mentioned cases - had to be assigned to the appellant, the latter being the newly founded "trust holder" for ASUSTeK. The transfer to the appellant of the right to claim the priority of application P from ASUSTeK was performed by implication under this general policy. Hence, the appellant was in charge of the filing of European patent applications claiming priority from US patent applications previously filed by ASUSTeK.
The correspondence submitted as exhibits E14 and E15 showed that the same representative (from the Taiwanese law firm NAIPO) was acting for both ASUSTeK and the appellant, as one consequence of the very close connection between those two companies. It also demonstrated that the corresponding instructions derivable from that policy were indeed put into practice. Since the parties acted in accordance with this general policy it could be concluded that it was the common will of the parties to transfer the particular rights of priority to the appellant without explicitly transferring it in written form in each and every case - including the case of application P, which was likewise covered by the general policy.
Furthermore, the fundamental importance of priority for the validity of any resulting patent in the technical field of telecommunications standards had to be taken into account. Applicants in this area were well aware that oftentimes, shortly after the filing of the first application, relevant information regarding the invention was published, not rarely by themselves, for instance in the form of a "change request". Hence, where several parties agreed on a collaborative file prosecution strategy, the party filing the first application or having been assigned the right of priority of the first application was, in general, obliged to transfer this right to the connected company in charge of filing the subsequent application. Given that the appellant in the case at hand filed the "request for grant" form for European patent application D2, which also included the declaration of the priority claim arising from application P, it was clear that the right of priority had been transferred from ASUSTeK to the appellant for the purpose of filing application D2 with a valid priority claim from application P, thereby following the logic and the purpose of the general policy. This finding of an implicit transfer was also corroborated by the subsequent behaviour of both parties, which repeatedly prepared and submitted respective documents within various co-pending opposition proceedings before the EPO in support of a valid transfer of the right of priority, the nunc pro tunc assignment being only one example. Thus, there was also no likelihood or even a possibility of any abuse.
Accordingly, the general policy referred to in E10 to E13 together with the correspondence according to E14 and E15 established, in full agreement with the nature of the relationship between the two companies, that an implicit transfer of the right of priority arising from application P for the filing of application D2 indeed took place between ASUSTeK and the appellant before the filing of D2. This implicit transfer should be accepted as valid for the purposes of Article 87(1) EPC 1973, since the formal requirements for a valid transfer of a right of priority, such as the need to perform the transfer in writing, were to be derived from the applicable national law, here German law.
Assuming again that US law was considered to be the law to be applied to the second transfer, the appellant became the successor in title by virtue of the direct assignment of 24 July 2007 of US non-provisional application D1 (regarding the same invention) from the first applicant and inventor S.S. Jiang to the appellant, likewise claiming the priority of application P and thus incorporating it by reference, as evidenced by E7 and E8. The transfer of D1 therefore also constituted sufficient proof of the transfer of application P and its associated right of priority to the appellant.
Assuming that the law (i.e. Taiwanese law) of the country where one of the parties (i.e. ASUSTeK located in Taiwan) to the assignment had its residence was considered to be the law to be applied to the second transfer, an implicit transfer in accordance with the general policy set up between ASUSTeK and the appellant was again evidenced by exhibits E10 to E15.
Only detailed and ongoing analysis of the decision under appeal and other related decisions in the opposition proceedings between the present parties, together with the respondent's submissions, revealed that Taiwanese law was also a national law applicable to the determination of whether the requirements for a valid transfer of the right of priority prior to the filing of application D2 had been met. To this end, the appellant had acquired supporting evidence TW1 to TW3 and had immediately submitted it with its letter dated 29 July 2015.
Taiwanese law foresaw a transfer of the right of priority without requiring a specific form, in particular a written form, for such a transfer. In this respect, Taiwanese law complied with most legal systems across the world, including in particular those of the jurisdictions of most European countries, which were based on the principle of "freedom of contract", according to which a concluded contract was the meeting of minds of both parties. Pursuant to legal opinion TW1, the Taiwanese Civil Code adhered to the principle of freedom of contract so that a contract could be concluded by both parties through an express, tacit, implied or oral agreement, without any necessity for a written form. Hence, in this regard, the Taiwanese civil code seemed to correspond to German civil law.
In particular, the Taiwan Patent Act did not include regulations, such as for a written form, governing the assignment of a right of priority derived from a Taiwanese patent application since, according to TW1, the right of priority and the right to apply for a patent, i.e. the right to file a later patent application, were in fact inseparable rights. Accordingly, under Taiwanese law, the right of priority could be transferred by assigning a right to file a later patent application with priority, which meant that the right to claim priority from the earlier application rested with the assignee of said right to apply for the later patent.
As to establishing how this legally possible implicit transfer before the filing of European patent application D2 took place, the appellant referred to its arguments made concerning the requirements of German law (see item (2b) above). In addition, there could be no question that the right to apply for the patent and thus, under Taiwanese law the right of priority, had been transferred from one party to the other for the purpose of filing application D2 with a valid priority claim.
Retroactive assignments of the right of priority could be accepted neither under Article 87(1) EPC 1973 nor under the basic principles of the Paris Convention.
German law was not applicable in the present case under Articles 1 and 66 EPC 1973. The alleged general policy was based on a trust relationship established under Californian state law, according to A7 and A8, and had not been validly established. The general policy itself was conditional, non-binding, vague and had not been complied with, as evidenced e.g. by European patent applications A13 and A15, which were related to the field of telecommunications standards and were filed by ASUSTeK, and not the appellant.
The assignment of D1 from the inventor to the appellant related only to the transfer of an internal right of priority, i.e. to a transfer of a right of priority derived from US provisional application P to the new applicant of a later US non-provisional application D1, without any consequences for an alleged transfer of the right of priority of application P to the applicant of the later European application D2.
The submissions relating to this fourth line of argument based on TW1 to TW3 should have been made earlier and should therefore not be admitted into the appeal proceedings under Article 13(1) RPBA. In any event, Taiwanese law was not applicable to the present case since affidavits A7 and A8 clearly demonstrated that the legal relationship between ASUSTeK and the appellant was governed by the laws of the State of California. Therefore, this fourth line of argument had no merit.
The board accedes to the requested change of address, having due regard to the fact that this change does not denote a change in the appellant's legal identity (see cases T 786/11, Reasons 2, and T 1458/12, Reasons 1, decided by the same board, as well as T 2330/10, Reasons 1).
The board sees no reason to overturn the opposition division's decision to admit exhibits E1 to E8 and E10 to E16 into the proceedings (cf. point III above), at least, due to their prima facie relevance to the validity of the opposed patent's priority claim (cf. appealed decision, Reasons 4.1).
The EPC does not provide a legal basis for excluding, in appeal proceedings, documents which were correctly admitted into the first-instance proceedings, in particular when the impugned decision is based on them (see e.g. T 1852/11, Reasons 1.3).
The outcome of this appeal depends in the first place on the question whether A4, considered by the opposition division to be novelty-destroying, belongs to the prior art within the meaning of Article 54(2) EPC 1973. Application P, from which priority was claimed, was filed on 28 July 2006 and thus before the publication date of A4 (i.e. August 2006). The opposition division correctly assumed that application P was filed by the inventor S.S. Jiang and that the non-identical appellant was only in a position to enjoy the right of priority from application P if it was the successor in title of ASUSTeK in respect of P at the filing date of European patent application D2. The board concurs with the opposition division and the appellant that the first transfer of the right of priority from inventor S.S. Jiang to ASUSTeK was validly performed (see appealed decision, Reasons 5.10 to 5.13). This conclusion is undisputed between the parties.
Hence, in the present case, the formal validity of the opposed patent's priority claim hinges on the question whether the second transfer of the right of priority derived from application P from the then applicant ASUSTeK to the appellant was validly performed. That is, whether the appellant validly enjoys the right of priority arising from application P under Article 87(1) EPC 1973.
a utility certificate, or his successor in title, shall enjoy, for the purpose of filing a European patent application in respect of the same invention, a right of priority during a period of twelve months from the date of filing of the first application."
The right of priority is defined in almost identical terms in Article 4A(1) of the Paris Convention.
3.1.1.1 From the wording of Article 87(1) EPC 1973 alone ("... for the purpose of filing a European patent application ..."; in the German version: "... für die Anmeldung ..."; in the French version: "... pour effectuer le dépôt d'une demande de brevet européen ...") it is clear to the board that, for a transfer of the right of priority from "any person" to a "successor in title" within the meaning of this provision to be considered valid, the transfer has to have been concluded before the filing date of the later European application claiming that priority. This is because the term "successor in title" in that provision refers to the person who has already filed ("has duly filed") the first application but not yet the later European patent application ("for the purpose of filing"). The board holds that this in turn directly implies that the succession in title must have already taken place when the later European patent application is filed.
3.1.1.2 It can further be deduced from the wording of Article 87(1) EPC 1973 ("Any person who has duly filed ... an application for a patent ... shall enjoy ... a right of priority ..."), taken in conjunction with Article 87(3) EPC 1973 ("... whatever the outcome of the application may be"; in the German version: "... wobei das spätere Schicksal der Anmeldung ohne Bedeutung ist ..."; in the French version: "... quel que soit le sort ultérieur de cette demande ..."), that the "right of priority" derived from a given first application is in itself a substantive property right, which is to be distinguished from the property right to the first application. As such the right of claiming priority from a first application may be transferred independently of the right to the first application up until the filing of the later European application claiming priority from it (at which time it becomes an accessory right to the underlying first application). This interpretation is also in line with the jurisprudence of the Boards of Appeal (see e.g. T 62/05, Reasons 3.6; T 205/14, Reasons 3.3, third paragraph; T 517/14, Reasons 2.4, third paragraph).
- T. Bremi in Singer/Stauder, Europäisches Patentübereinkommen, 7th edition, 2016, Article 87 EPC, section 2.7, point 59: "Das Prioritätsrecht ist unabhängig von der prioritätsbegründenden Anmeldung bis zum Zeitpunkt der Nachanmeldung frei übertragbar und ist auch für nur einzelne Nachanmeldestaaten übertragbar ...".
(ii) the right of priority relating to the first application for the purpose of filing the later European application claiming that priority.
In general, an agreement on the transfer of the right of priority is concluded by means of a contract between the transferor (the original owner of the right of priority) and the transferee (the owner's successor in title). This requires two corresponding declarations of the contracting parties, whether express or implied, regarding the subject-matter of the transfer. The appellant is right in stating that the EPC lays down no formal requirements for the conclusion of such a transfer. Nor is this issue regulated in the Paris Convention. The board agrees with the appellant and the opposition division that a valid transfer of the right of priority does not require a separate formal assignment ("in writing" and containing a "signature of the parties") as is required for the transfer of European patent applications under Article 72 EPC 1973. Thus, an implicit transfer of a particular right may be accepted when it is sufficiently clear that the parties formed an agreement and what they agreed.
its Contracting States. However, the board agrees with the appellant that requirements for the validity of a transfer of the right of priority, and in particular the question of which is the law that governs such requirements, are a matter of substantive rather than procedural law.
(d) the law of the country where at least one of the parties to the transfer has its residence ("lex domicilii").
The board is aware that so far there is no established jurisprudence of the Boards of Appeal as regards the national law generally applicable to the question of the transfer of the right of priority. In T 62/05 (Reasons 3.9), it was the lex loci protectionis that was chosen, namely by the analogous application of Article 72 EPC 1973, which governs the transfer of a European patent application, to the transfer of the right of priority (see also T 382/07, Reasons 8.3, which applied the lex loci protectionis). On the other hand, T 160/13 (Reasons 1.1) and T 1008/96 (Reasons 3.3) appear to have relied on the lex originis (i.e. German and Italian law respectively), and T 205/14 (Reasons 3.6.4) on the law applicable to the legal relationship between the parties to the transfer (i.e. the lex domicilii rather than the lex originis), which was Israeli law. The formal requirements of different national laws for the transfer of intellectual property rights range from none at all (as e.g. under German law; see German Civil Code BGB, §398 and §413) to strict formal rules (as e.g. under US law; see 35 U.S.C. §261).
3.1.3 In conclusion, where the applicants of the first application and the later European application are not identical, it has to be proven that the right of priority derived from the first application and claimed for the later European application was indeed transferred, before the filing date of the later European application, by the applicant of the first application to its successor in title, in accordance with specific formal requirements.
In the following, the board will assess the four lines of argument relied upon by the appellant. For each it will proceed on the assumption that the applicable law (i.e. US, German and Taiwanese law) is that stated by the appellant. In that regard, the board considers it appropriate to take this approach because its decision on the validity of the transfer of the right of priority arising from application P to the appellant did not depend on a determination of the national law applicable to the formal requirements for a transfer of the right of priority. In any event, the appellant's case failed for lack of sufficient evidence. The evidence adduced could not prove that the appellant was the owner of the right of priority arising from application P, irrespective of the formal requirements of any relevant national law (see points 3.2.1 to 3.2.4 below).
As to this first line of argument, the appellant relies on the lex originis, i.e. US law. Even assuming that the lex originis is the applicable national law as regards the formal requirements for a transfer of the right of priority, the board holds that the appellant has not sufficiently proven that it was the valid successor in title for the purposes of Article 87(1) EPC 1973.
"... ASUSTeK Computer Inc. ... hereby assigns to Innovative Sonic Limited ... the entire right, title and interest throughout the world in and to the invention and improvements which are the subject of United States Patent Application Serial No. 60/833,822 ..., nunc pro tunc, effective as of July 24, 2007 (the "Effective Date"), including ... the right to claim priority based on the filing date of the Application ...".
In the board's judgment, however, it follows immediately from substantive requirement (i) above, which itself is based on the wording of Article 87(1) EPC 1973 (see point 3.1.1.1 above), that even if a retroactive transfer such as the nunc pro tunc assignment under US law invoked by the appellant was allowable under US law, it would not be acceptable under Article 87(1) EPC 1973. Any natural or legal person can only then be considered a "successor in title" for the right of priority within the meaning of Article 87(1) EPC 1973 if it obtained that right from its previous owner by a transfer agreement concluded before the filing of the later European patent application.
3.2.1.2 This literal interpretation of Article 87(1) EPC 1973 is perfectly in line with the established jurisprudence of the Boards of Appeal (see e.g. T 62/05, Reasons 3.5; T 493/06, Reasons 11; T 382/07, Reasons 9.1; T 205/14, Reasons 3.5). It also fully accords with several decisions of national courts (see e.g. German Federal Court of Justice (BGH), X ZR 49/12, GRUR 2016, 1038 - Fahrzeugscheibe, point 11; High Court of Justice of England and Wales (Chancery Division, Patents Court) - Edwards Lifesciences AG v. Cook Biotech Incorporated  EWHC 1304 (Pat), point 95). The appellant is right in saying that in T 205/14 (see Reasons 3.4) the deciding board indicated that it was aware of diverging opinions in that respect (referring to a commentary by R. Moufang in Schulte, Patentgesetz mit EPÜ, 9th edition, 2014, §41, No. 28, and to a decision of the German Federal Patent Court, 11 W (pat) 14/09, according to which a priority could be validly claimed until the time at which the applicant files the declaration of priority). Nonetheless, the board in that case obviously considered the question whether the transfer of the right of priority occurred before the filing of the later European application to be one of the basic requirements to be assessed in connection with the validity of the priority claim (see T 205/14, item a in Reasons 3.5 and 3.7). In the present case, however, the appellant filed its declaration of priority under Rule 52 EPC together with European patent application D2 (see EPO Form 1001, box 25, signed on 27 July 2007), so that the latter observations are of no relevance to this appeal.
3.2.1.3 A teleological interpretation leads to the same result. Given that the right of priority confers on its owner a benefit of an exceptional kind, it is of the utmost importance for third parties to have certainty as early as possible so as to be able to determine the patent application's effective filing date and the relevant prior art, with its crucial effect on patentability. To allow a retroactive assignment of the right of priority under Article 87 EPC 1973 would put individual parties in a position to change, at will and for the past, the effective date at which a substantive right arises. This, however, would not be in the public's interest.
3.2.1.4 Nor can the board share the appellant's view that - in the absence of any express exclusion in Article 87(1) EPC 1973 - such a retroactive transfer should be permissible. In fact, the contrary applies. Since Article 87 EPC 1973 presupposes that the applicant is the owner of the right of priority at the date of filing, as discussed above, such an exception would normally also have to be expressly codified in the relevant provisions of the EPC. Even if US law somehow allows for a retroactive transfer, the board emphasises that this does not necessarily mean that the same is true for Article 87(1) EPC 1973. As set out in decision G 1/13 (OJ EPO 2015, 549, Reasons 8), a provision of national law which is contrary to the EPC cannot be acknowledged by the EPO (see also T 2357/12, Catchword 1).
- T. Bremi in Singer/Stauder, Europäisches Patentübereinkommen, 7th edition, 2016, Article 87 EPC, section 2.7, point 59: "... Es ist also nicht möglich, nachträglich durch eine Übertragung des Rechts an einer Voranmeldung die Priorität zu manipulieren ...".
3.2.1.6 In summary, the appellant failed to convince the board that the nunc pro tunc assignment put forward in its first line of argument indeed fulfilled substantive requirement (i) of Article 87(1) EPC 1973.
Regarding this line of argument, the appellant submitted that a general policy had been established between ASUSTeK and itself and had been followed by both parties. By executing this policy the right of priority for the patent in suit was transferred to the appellant. As means of evidence the appellant filed affidavits E10 to E16. The respondent contested the content of those affidavits.
"Beginning from the end of 2006 intellectual property in the field of telecommunications standards should be transferred from ASUSTeK to Innovative Sonic Limited ("Innovative"), since Innovative was founded as a trust holder for ASUSTeK. All pending applications and granted patents in this field with the exception of six particular cases that ASUSTeK wants to keep should be transferred to Innovative. ASUSTeK keeps US6687248, US6788944, US6728529, US7539220, US7068636 and US7203196 and their foreign counterparts and Innovative received the exclusive right to sublicense these patents. New cases should also be transferred to Innovative and ASUSTeK would support Innovative in prosecuting the cases. General Counsel of ASUSTeK, Vincent Hong, was involved in making this policy.
Based on the advice of Vincent, for the new cases, ASUSTeK should file the first filings as US provisional applications and then transfer the rights including the right to claim priority to Innovative for Innovative to file the follow up applications. I was also advised that since Innovative was a company with place of business in the British Virgin Islands, it may not be possible for Innovative to claim the right of priority in certain countries.
Therefore, based on this policy, ASUSTeK made the first filings as US provisional applications and transferred the right to claim priority to Innovative in countries where it was legally possible. ASUSTeK filed the follow up applications and then transferred these applications to Innovative in countries where it was legally not possible for Innovative to claim the right of priority."
The fundamental submissions regarding the above policy were repeated - using the same or similar wording - in affidavits E11 to E13.
3.2.2.2 As regards the applicable rules for assessing the evidence adduced, the board concluded the following: the burden of proving a valid transfer of the right of priority lies with the patent proprietor (appellant) since it is the one claiming that right (see e.g. T 1008/96, Reasons 3.3; T 1056/01, Reasons 2.10; T 493/06, Reasons 8; T 205/14, Reasons 3.5). This rule is all the more applicable taking into account that the patent proprietor (appellant) alone has access to the relevant evidence when it asserts a concluded transfer of rights. Given that the appellant submitted no other - in particular no contemporaneous documentary - evidence, the board accepts the later-executed affidavits filed as admissible means of evidence under Article 117(1) EPC. The probative value of those affidavits is to be decided by the board in accordance with the established principle of free evaluation of evidence. As to the standard of proof to be applied, this board concurs with the respondent that the circumstances of the present case require a proof "beyond reasonable doubt" (rather than a proof based on "balance of probabilities" as relied upon in T 205/14, Reasons 3.6.1 and the almost identical case T 517/14, Reasons 2.7.1). This is because practically all the evidence regarding the general policy lies within the knowledge and power of only one party to these inter-partes proceedings within the meaning of T 472/92 (OJ EPO 1998, 161), Reasons 3.1 (concerning public prior use), i.e. the patent proprietor (appellant) here, whereas the other party (respondent) is not in a position to present any counter-evidence.
3.2.2.3 As regards this second line of argument, the appellant relies on the lex loci protectionis, here the law of Germany as one of the Contracting States to the EPC. The board first accepts that German law allows for an implicit transfer of the right of priority, as confirmed by the decision of the German Federal Court of Justice - Fahrzeugscheibe (E16), and that thus no transfer in writing is necessary. The board also accepts that application P (filed on 28 July 2006) qualifies as a "pending application" within the meaning of those affidavits at the time when the general policy was said to be established ("end of 2006"). Yet, even assuming that German law was the applicable national law as regards the formal requirements for the transfer of the right of priority, and that thus no transfer in writing was necessary, the board nonetheless holds that the appellant has not proven beyond reasonable doubt that it was the valid successor in title under Article 87(1) EPC 1973. The reasons are set out below.
3.2.2.4 Firstly, the board is not convinced that the general policy covers the transfer of the right of priority for application P. The board understands that the general policy according to which ASUSTeK "should file the first filings as US provisional applications and then transfer the rights including the right to claim priority to Innovative for Innovative to file the follow up applications" constituted a common filing policy to be pursued from that time onwards, i.e. for applications to be newly filed. It was thus directed to the future and in the board's view amounts to a declaration by the two respective companies of the intention that, in this respect, the transfer of the right of priority was only applicable to "new cases" (in the terminology of E10 to E12; "future applications" in E13) rather than to "pending applications" and "granted patents". Since, at the time the general policy was set up, application P had already been filed, the above common filing policy, including the transfer of the right of priority, could not apply to it.
"Therefore, on instructions from ASUSTeK's General Counsel, Vincent Hong, I instructed North America Intellectual Property Corporation to file applications in US, Europe and Korea under the name of Innovative and claim the right of priority of the US provisional patent applications under the name of ASUSTeK".
Even assuming that such instructions did exist, it is apparent to the board that they were not necessarily followed by the employees of both companies in every case. This is notably evidenced by European patent applications A13 and A15, both filed by ASUSTeK and claiming the priority of a first filing made by ASUSTeK in Taiwan (rather than in the US according to the alleged policy) in 2008, i.e. well after the general policy was set up.
Those applications concern subject-matter in the field of telecommunications standards and clearly qualify as "new cases" within the meaning of affidavits E10 to E13. Concerning the criterion "in the field of telecommunications standards" used in E10 to E13, the board is not persuaded by the appellant's argument that the field of telecommunications standards is supposed to be limited to patent applications concerned only with inventions relating to developments, e.g. by standardisation working groups, of new standards or to improvements of existing standards. Rather, the board agrees with the respondent that the above expression is to be construed much broader, so that it may well include inventions which are simply making use of or are based on existing telecommunications standards. Accordingly, applications A13 and A15 are also manifestly concerned with "telecommunications standards" within the broad meaning of the phrase "in the field of telecommunications standards" of the present affidavits (see e.g. A13, column 2, lines 5-9: "... In accordance with the trend of designing mobile phones, a second generation (2G) mobile communication system and a third (3G) mobile communication standard communication system are integrated into a single mobile phone ..."; A15, paragraph : "According to an embodiment of the present invention, the wireless network includes a worldwide interoperability for microwave access (WiMAX) wireless network, a 3G wireless network, a 3.5G wireless network, or a long term evolution (LTE) wireless network.").
From these passages of A13 and A15 alone the board concludes that it was, at best, not unlikely that other exceptions to those allegedly binding instructions existed. The appellant conceded at the oral proceedings before the board that there were apparently more exceptions than initially alleged. This, however, raises serious doubts about the actual execution of instructions which allegedly were to be inferred from the above general policy, in particular about the applicability of the general policy to the present case.
3.2.2.6 Thirdly, even if the above common filing policy, including the transfer of the right of priority, was indeed applicable to "pending applications" (such as application P), it is not clear whether the transfer from ASUSTeK to the appellant of the right to apply for a patent based on those applications did in fact include the transfer of the right to claim priority from them (see again affidavit E10: "... All pending applications ... in this field with the exception of six particular cases that ASUSTeK wants to keep should be transferred to Innovative ..."). Given that the right to apply for a patent based on an application and the right to claim priority from that application are independent and thus separable rights (see point 3.1.1.2 above), the mere transfer of a pending application from one party to another does not necessarily mean that the associated right of priority is transferred between those parties too.
3.2.2.7 Furthermore, exhibits E14, E14a, E14b and E14c relate to emails and communications sent by the then Taiwanese and US representatives (M. Hsiao; J. McKinney Muncy) of ASUSTeK to employees of ASUSTeK reporting the filing of application P, while exhibits E15, E15a and E15b relate to emails and communications sent by the then Taiwanese representative (N. Lee) of ASUSTeK and the European representative (T.J. Hager) of the appellant to employees of ASUSTeK and the appellant indicating the filing of European application D2 in the name of the appellant.
However, the board finds that the mere fact that patent attorneys receive instructions from companies to file patent applications does not automatically demonstrate that the right to claim priority from a first application was already validly transferred between the parties to the transfer before the filing date of the later application. This finding in no way contradicts the conclusions drawn in the decision of the German Federal Court of Justice - Fahrzeugscheibe (E16) since the underlying situation there was not comparable with the present case. In the former case, there was an express Research & Development cooperation agreement between the applicant of the first application and the applicant of the later application, together with an express indication that a certain national application had been filed with the German Patent and Trademark Office in order to enable the applicant of the later application to take decisions on further actions as regards subsequent filings (see E16, Reasons 15 to 17). Moreover, the evidence adduced in cited case T 160/13 to prove the validity of an implicit transfer of the right of priority under German law was also rather different. In that case, the relationship between the respective first application and the later application was absolutely clear from the corresponding email exchanges (see e.g. exhibit A1: "case GM03200DE"; "PCT for 2003200").
3.2.2.8 Lastly, the appellant also contended that it was sufficiently clear from the combination of the general policy, the filing of application D2 in the name of the appellant and the declaration of priority according to Article 88(1) EPC in conjunction with Rule 52 EPC that only the appellant itself could have owned the right to claim priority from application P before the filing of D2, because it acted exactly in the manner generally foreseen in the general policy, as evidenced by E10 to E16.
The board, however, has already pointed out above that the general policy was not applicable to application P and that it apparently was not always complied with (see points 3.2.2.4 and 3.2.2.5). Furthermore, the mere ticking of box 25 in EPO Form 1001 for the purpose of a declaration of priority with respect to application P at the same time as (rather than before) the filing of application D2 does not in itself constitute proof of a valid transfer of the right of priority. Rather, the filing of the declaration of priority in respect of a European patent application under Rule 52 EPC is an entirely formal requirement with the aim to duly informing the EPO and the public that priority had been claimed for the purpose of prosecuting the application in terms of search and examination. This, however, may not provide any guarantee regarding the validity of the claimed priority. The board also notes in this context that in none of the appeal cases cited above with respect to a transfer of a right of priority was it decisive for the assessment of whether the priority was validly claimed that the declaration of priority relating to an application was indeed made by a different applicant, i.e. by the alleged successor in title. This was so irrespective of whether the succession was found to be invalid (see e.g. "EPO request for grant" form for the application underlying T 1008/96; "PCT request" form, Box No. VI, for the application underlying T 62/05) or valid (see e.g. "PCT request" forms, Box No. VI, for the applications underlying T 160/13 and T 205/14). In conclusion, the board holds that the above argument does not add any concrete and distinct facts to the case from which it may be convincingly concluded when exactly, if at all, ASUSTeK transferred the right of priority of application P to the appellant. Therefore, this argument must also fail.
- the mere fact that present European application D2 was indeed filed with the EPO on 27 July 2007 does not necessarily imply that the right to claim priority from application P had already been validly transferred (see points 3.2.2.7 and 3.2.2.8 above).
In sum, even assuming that the applicable national law did not prescribe that a transfer of the right of priority must be in writing and thus allowed for an implicit transfer, the appellant failed to sufficiently prove that the right of priority was validly transferred to it in an implicit way by virtue and in execution of a general policy between ASUSTeK and it.
As regards the alleged "direct transfer" of the rights associated with US non-provisional application D1 from the inventor to the appellant on 27 July 2007, as evidenced by the inventor's transfer declarations E7 and E8, the board concurs with the finding of the decision under appeal that the mere fact that those rights ("entire right, title, and interest") relating to a subsequently and independently filed application such as D1, which claimed priority from application P, were "directly" transferred to the appellant cannot establish that this necessarily included, for the present European application D2, the transfer of the right to claim priority from application P. In that regard, the appellant did not add any further comments to the arguments set forth in the opposition proceedings (cf. points IV and XI above).
3.2.4.1 The appellant submitted this fourth line of argument, together with exhibits TW1 to TW3, for the very first time in its response to the respondent's letter of reply, i.e. long after filing its statement setting out the grounds of appeal (cf. point VII above).
3.2.4.2 In appeal proceedings, the admissibility of submissions filed after the appellant has filed its statement setting out the grounds of appeal, is subject to Article 13(1) RPBA. This also applies to late-filed arguments (see e.g. T 1069/08, Reasons 28; T 1621/09, Reasons 37). By virtue of Article 13(1) RPBA, a board's discretion in admitting any amendment to a party's case "shall be exercised in view of inter alia the complexity of the new subject-matter submitted, the current state of the proceedings and the need for procedural economy". The list of criteria set out in Article 13(1) RPBA is not exhaustive ("in view of inter alia"). Thus, other well-established criteria relevant to the admissibility issue, such as whether the amendment relates to the case under appeal (Article 12(2) RPBA) or whether it is prima facie relevant to its outcome, may also be taken into account. Although the criterion referred to in Article 12(4) RPBA applies to lines of argument put forward in the statement setting out the grounds of appeal, it is by analogy and indeed a fortiori also valid for lines of argument submitted later in the appeal procedure.
Article 12(4) RPBA requires that everything presented by the parties under Article 12(1) RPBA is taken into account by the board if and to the extent it relates to the case under appeal and meets the requirements in Article 12(2) RPBA. Article 12(2) RPBA, in turn, lays down that "[t]he statement of grounds of appeal and the reply shall contain a party's complete case. They shall set out clearly and concisely the reasons why it is requested that the decision under appeal be reversed, amended or upheld, and should specify expressly all the facts, arguments and evidence relied on". Taken as a whole, the Rules of Procedure of the Boards of Appeal, and in particular Article 12(2) RPBA, make it clear that the parties' complete case must be submitted at the outset. The purpose of Article 12(2) RPBA is to ensure fair proceedings for all concerned and to enable the board to start working on the case on the basis of both parties' complete submissions.
In view of the above, as to the procedural aspects of this late-filing, the board agrees with the respondent that this new line of argument could and should have been presented with the statement setting out the grounds of appeal, given that the applicability of Taiwanese law, to which TW1 to TW3 refer, was already discussed in the opposition proceedings concerning the related European patent EP-B-2 077 691 (see e.g. A16 filed by the respondent).
3.2.4.3 As to the substance and prima facie relevance of this fourth line of argument, the appellant relies on the lex domicilii, i.e. Taiwanese law in this case. Concerning Taiwanese law, the appellant submitted that, similar to German law, Taiwanese law allowed for an implicit transfer of the right of priority, as indicated in the legal opinion of TW1. However, unlike German law, the right of priority and the right to file a later patent application claiming that priority were inseparable rights under Taiwanese law, rather than independent rights.
However, the board holds that, even if Taiwanese law were to be accepted as the law governing the assessment of the general policy and the formal requirements for a valid transfer of the right of priority, the outcome of such an assessment would not be different from that of the appellant's second line of argument (see point 3.2.2 above), as a result of a lack of substantiation regarding the content of the underlying evidence. This is because (a) the general policy fails to cover the transfer of the right of priority for application P (see point 3.2.2.4 above) or (b) the general policy was not always complied with (see point 3.2.2.5 above). Moreover, (c) the general policy does not indicate the transfer of the right of priority for "pending applications" such as application P (see point 3.2.2.6 above). As to observation (c), the board holds that even assuming that the right of priority and the right to file a later patent application claiming that priority were indeed inseparable rights under Taiwanese law, as argued by the appellant, this could not override the substantive requirement as set out in point 3.1.1.2 above, according to which the right of priority relating to a first application can be transferred independently of the right to that first application. Hence, contrary to the appellant's view, the board finds that the fact that a certain patent application (such as application P) has been transferred on the basis of the alleged general policy does not necessarily mean - in the absence of any express or implied indication - that this transfer includes the right of priority derived from that application. Also, the observations made under points 3.2.2.7 and 3.2.2.8 above equally apply to this fourth line of argument.
3.2.4.4 Consequently, the board decided not to admit the fourth line of argument (i.e. implicit transfer under Taiwanese law) and TW1 to TW3 into the appeal proceedings under Article 13(1) RPBA.
3.3 In view of the foregoing, the board judges that - irrespective of the issue of the applicable national law with regard to the present transfer of the right of priority - the appellant was not able to sufficiently establish that the right of priority arising from application P was validly transferred to the appellant before the filing of application D2. Thus, the priority claim for European patent application D2 is invalid, and A4 belongs to the prior art within the meaning of Article 54(2) EPC 1973.
It was undisputed during the appeal proceedings that document A4 discloses all the features of claim 1 as granted (cf. point XII above) and thus takes away its novelty (see in particular the statement setting out the grounds of appeal, page 15, section IV.1).
5.1 According to Article 112(1)(a) EPC 1973, a board of appeal, "in order to ensure uniform application of the law, or if a point of law of fundamental importance arises: ... shall ... refer any question to the Enlarged Board of Appeal if it considers that a decision is required for the above purposes". It is clear from the wording of this provision that "points of law" may be referred to the Enlarged Board only if they require clarification to ensure uniform application of the law or are of fundamental importance and the referring board takes the view that, for those reasons, it needs a ruling on them by the Enlarged Board in order to settle the case (see e.g. G 1/12, OJ EPO 2014, 114, Reasons 6).
5.2 As to the question of "uniform application of the law", the board is not aware of diverging case law in that respect. To the contrary, the relevant jurisprudence of the Boards of Appeal is consistent in holding that the successor in title of the applicant of the application from which priority is claimed must be the owner of the right of priority before the filing date of the later European patent application (see point 3.1.1.1 above).
5.3 As to the issue of "point of law of fundamental importance", the board holds that the questions posed concerning the allowability of a retroactive assignment of the right of priority are primarily relevant to the present (and possibly also to co-pending case T 1763/13) and thus of special interest only to the parties in those cases, but not for a large or substantial number of other similar cases. Indeed, the appellant conceded at the oral proceedings before the board that it had little idea of the number of cases for which the answer to the questions posed could be of relevance. Furthermore, the board is without a doubt in a position to answer those questions which are relevant to the present case (see in particular points 3.1.1.1 and 3.2.1 above).
5.4 Accordingly, the board decided to refuse the appellant's request that the above questions be referred to the Enlarged Board of Appeal.
6.1 The appellant, at the end of the oral proceedings before the board, made an objection under Rule 106 EPC on the grounds that its right to be heard under Article 113(1) EPC 1973 had been violated because the board did not identify the applicable national law for the matter of determining the validity of the transfer of the right of priority (cf. point XI above).
- the appellant had several opportunities in writing and ample time at the oral proceedings to make its case on the basis of all four lines of argument invoked.
7. In view of the above, the appeal has to be dismissed.


uses medication which (A) a physician has prescribed for a skin condition which is due to a service-connected disability, and (B) the Secretary determines causes irreparable damage to the veteran’s outergarments.
2009—Pub. L. 111–37 substituted “$716” for “$677” in introductory provisions.
2008—Pub. L. 110–324 substituted “$677” for “$662” in introductory provisions.
2006—Pub. L. 109–461, § 1006(b), provided that as of the enactment of Pub. L. 109–461, the amendments made by Pub. L. 109–444 were deemed for all purposes not to have taken effect and that Pub. L. 109–444 ceased to be in effect. See Amendment notes below and section 1006(b) of Pub. L. 109–461, set out as a Coordination of Provisions With Pub. L. 109–444 note under section 101 of this title.
Pub. L. 109–461, § 1005(c), substituted “$662” for “$641”.
Pub. L. 109–444, which substituted “$662” for “$641”, was terminated by Pub. L. 109–461, § 1006(b). See Amendment notes above.
2005—Pub. L. 109–111 substituted “$641” for “$600”.
2004—Pub. L. 108–454 substituted “$600” for “$588”.
2002—Pub. L. 107–330 substituted “$588” for “$580”.
2001—Pub. L. 107–94 substituted “$580” for “$546”.
1999—Pub. L. 106–118 substituted “$546” for “$528”.
1997—Pub. L. 105–98 substituted “$528” for “$478”.
1993—Pub. L. 103–140 substituted “$478” for “$466”.
Pub. L. 103–78 substituted “$466” for “$452”.
1991—Pub. L. 102–152 substituted “$452” for “$436”.
Pub. L. 102–83 renumbered section 362 of this title as this section.
Pub. L. 102–3 substituted “$436” for “$414”.
Pub. L. 101–237, § 103, substituted “$414” for “$395”.
1988—Pub. L. 100–687 substituted “$395” for “$380”.
1987—Pub. L. 100–227 substituted “$380” for “$365”.
1986—Pub. L. 99–576 substituted “$365” for “$360”.
Pub. L. 99–238 substituted “$360” for “$349”.
1984—Pub. L. 98–543 substituted “$349” for “$338”.
Pub. L. 98–223 substituted “$338” for “$327”.
1982—Pub. L. 97–306, §§ 103, 107, 108, substituted “$327” for “$305” and repealed amendment made by Pub. L. 97–253, § 405(d), eff. Oct. 1, 1982.
Pub. L. 97–253, § 405(d), (h), eff. Jan. 1, 1983, substituted “$304” for “$305” after “clothing allowance of”.
1981—Pub. L. 97–66 substituted “$305” for “$274”.
1980—Pub. L. 96–385 substituted “$274” for “$240”.
1979—Pub. L. 96–128 substituted “$240” for “$218”.
1978—Pub. L. 95–479 substituted “$218” for “$203”.
1977—Pub. L. 95–117 substituted “$203” for “$190”.
1976—Pub. L. 94–433, §§ 301, 404(24), substituted “$190” for “$175” and “the Administrator shall prescribe” for “he shall prescribe”.
1975—Pub. L. 94–71 substituted “$175” for “$150”.
Amendment by Pub. L. 111–37 effective Dec. 1, 2008, see section 3(g) of Pub. L. 111–37, set out as a note under section 1114 of this title.
Amendment by Pub. L. 110–324 effective Dec. 1, 2007, see section 3(f) of Pub. L. 110–324, set out as a note under section 1114 of this title.
Amendment by Pub. L. 109–111 effective Dec. 1, 2005, see section 2(f) of Pub. L. 109–111, set out as a note under section 1114 of this title.
Amendment by Pub. L. 107–94 effective Dec. 1, 2001, see section 7 of Pub. L. 107–94, set out as a note under section 1114 of this title.
Amendment by Pub. L. 106–118 effective Dec. 1, 1999, see section 7 of Pub. L. 106–118, set out as a note under section 1114 of this title.
Amendment by Pub. L. 105–98 effective Dec. 1, 1997, see section 7 of Pub. L. 105–98, set out as a note under section 1114 of this title.
Amendment by Pub. L. 103–140 effective Dec. 1, 1993, see section 7 of Pub. L. 103–140, set out as a note under section 1114 of this title.
Amendment by Pub. L. 102–152 effective Dec. 1, 1991, see section 7 of Pub. L. 102–152, set out as a note under section 1114 of this title.
Amendment by Pub. L. 102–3 effective Jan. 1, 1991, see section 7 of Pub. L. 102–3, set out as a note under section 1114 of this title.
Amendment by section 103 of Pub. L. 101–237 effective Dec. 1, 1989, see section 106 of Pub. L. 101–237, set out as a note under section 1114 of this title.
Amendment by Pub. L. 100–687 effective Dec. 1, 1988, see section 1106 of Pub. L. 100–687, set out as a note under section 1114 of this title.
Amendment by Pub. L. 100–227 effective Dec. 1, 1987, see section 107 of Pub. L. 100–227, set out as a note under section 1114 of this title.
Amendment by Pub. L. 99–576 effective Dec. 1, 1986, but not effective unless benefit amounts payable under section 401 et seq. of Title 42, The Public Health and Welfare, are increased effective Dec. 1, 1986, as a result of a determination under section 415(i) of Title 42, see section 107 of Pub. L. 99–576, set out as a note under section 1114 of this title.
Amendment by Pub. L. 99–238 effective Dec. 1, 1985, see section 107 of Pub. L. 99–238, set out as a note under section 1114 of this title.
Amendment by Pub. L. 98–543 effective Dec. 1, 1984, see section 107 of Pub. L. 98–543, set out as a note under section 1114 of this title.
Amendment by Pub. L. 98–223 effective Apr. 1, 1984, see section 107 of Pub. L. 98–223, set out as a note under section 1114 of this title.
Amendment by Pub. L. 97–306 effective Oct. 1, 1982, see section 108 of Pub. L. 97–306, set out as a note under section 1114 of this title.
Amendment by Pub. L. 97–66 effective Oct. 1, 1981, see section 701(a) of Pub. L. 97–66, set out as a note under section 1114 of this title.
Amendment by Pub. L. 96–385 applicable only to payments for months beginning after Sept. 30, 1980, see section 601(a) of Pub. L. 96–385, set out as a note under section 1114 of this title.
Amendment by Pub. L. 96–128 effective Oct. 1, 1979, see section 601(a)(1) of Pub. L. 96–128, set out as a note under section 1114 of this title.
Amendment by Pub. L. 95–479 effective Oct. 1, 1978, see section 401(a) of Pub. L. 95–479, set out as a note under section 1114 of this title.
Amendment by Pub. L. 95–117 effective Oct. 1, 1977, see section 501 of Pub. L. 95–117, set out as a note under section 1114 of this title.
Amendment by Pub. L. 94–433 effective Oct. 1, 1976, see section 406 of Pub. L. 94–433, set out as a note under section 1101 of this title.
Amendment by Pub. L. 94–71 effective Aug. 1, 1975, see section 301 of Pub. L. 94–71, set out as a note under section 1114 of this title.
Section effective first day of second calendar month which begins after June 30, 1972, see section 301(a) of Pub. L. 92–328, set out as an Effective Date of 1972 Amendment note under section 1114 of this title.
Section 405(d) of Pub. L. 97–253, cited as a credit to this section, was repealed by Pub. L. 97–306, §§ 107, 108, Oct. 14, 1982, 96 Stat. 1431, 1432, eff. Oct. 1, 1982.
For increases in rates and limitations on Department of Veterans Affairs disability compensation and dependency and indemnity compensation, see notes set out under section 1114 of this title.


text:
For the last 18 months, President Trump and his Republican allies in Congress have been waging a relentless war on our health care, resulting in millions of people losing coverage, double digit premium rate increases, and weakened protections for people with pre-existing conditions. Now, with the retirement of Justice Anthony Kennedy, the President has an opportunity to tip the balance of the Supreme Court further in his favor and appoint a justice hostile to our health care, as he has repeatedly promised he would do. Make no mistake: our health care is on the line if Trump succeeds in appointing an extreme judge who will rubber stamp his anti-health care agenda.
President Trump has nominated Brett Kavanaugh, who is on the Federalist Society’s list of approved judges, to the Supreme Court. The Federalist Society, as should be noted, has been fighting the Affordable Care Act (ACA) since before it was even signed into law and has consistently pushed judges very hostile toward women’s health.
Kavanaugh has also been hostile towards women’s health. In 2015, Kavanaugh sided with employers over women, arguing that they be able to deny women coverage for birth control. In 2017, Kavanaugh tried to force a young woman to continue a pregnancy against her will.
Prior to the Affordable Care Act, insurance companies were able to cherry pick who they wanted to cover and would often discriminate against people with pre-existing conditions by charging them more, dropping coverage once people got sick, or denying coverage altogether. The ACA banned all of those practices, providing health security to millions.
Roughly half of nonelderly American adults, or up to 130 million people, have at least one pre-existing condition.
Nationally, the most common pre-existing conditions were high blood pressure (44 million people), behavioral health disorders (45 million people), high cholesterol (44 million people), asthma and chronic lung disease (34 million people), and osteoarthritis and other joint disorders (34 million people).
These protections have consistently been the most popular component of the law among not only Democrats, but Republicans and Independents as well.
Nevertheless, President Trump has taken every opportunity he has had to dismantle the consumer protections and market reforms in the ACA. Though he failed to enact legislation to repeal the ACA, on his first day in office, President Trump signed an executive order directing his administration to use whatever tools they could to undo as much of the ACA as it could. His administration has further taken actions to sabotage the law by allowing insurance companies to sell junk plans that do not have to cover people with pre-existing conditions, among other things.
Don’t forget: Trump campaigned on ending the ACA by any means necessary, and he had his sights on the Court from the very beginning. In fact, as a candidate Trump said he would have a “very strong test” for Supreme Court nominees, pointing to his “disappointment” in Chief Justice John Roberts, as “somebody that should have, frankly, ended Obamacare, and he didn’t.” As the leading coalition fighting against Republicans’ ongoing efforts to repeal and sabotage health care and working instead to protect coverage for millions of Americans, Protect Our Care knows that Trump’s meaning is clear: he has a litmus test for his Supreme Court nominees, and repealing the ACA is on that test.
After all, ending protections for people with pre-existing conditions is already the official policy of the Trump Administration. Normally, the Department of Justice (DOJ) defends federal law in court. However, the Trump Administration has taken the extraordinary step of joining the latest partisan lawsuit that seeks to invalidate the ACA and has argued the Court needs to take away the provisions in the law that prevent insurance companies from denying coverage or charging people more because of a pre-existing condition. If the Trump administration had its way, overnight the 130 million people with a pre-existing condition would once again be at the mercy of insurance companies.
This case should not be taken lightly — three prior challenges to the Affordable Care Act (NFIB, et al. v. Sebelius, King v. Burwell, Hobby Lobby v. Burwell) have made their way to the Supreme Court, despite early doubts among legal scholars.
Access to Planned Parenthood. Three cases working their way through the appellate courts challenge state actions to prevent Planned Parenthood patients’ access to birth control and other preventive care (Andersen v. Planned Parenthood of Kansas and Mid-Missouri, Gee v. Planned Parenthood of Gulf Coast, and Planned Parenthood Greater Ohio v. Hodges).
Birth control coverage. Three courts of appeals are considering the Trump Administration’s roll back of the birth control benefit under the ACA, allowing any employer to deny coverage (California v. Azar, Pennsylvania v. Trump and Massachusetts v. Department of Health and Human Services).
Coverage for nursing moms. Moreover, the Supreme Court could consider a case looking at access to coverage for nursing mothers. Briscoe v. Health Care Service Corp and Condry v. UnitedHealth Group would determine whether and what breast-feeding services are covered under the ACA’s preventive care, and therefore available to women at no cost.
Medicaid is not only supported by three-quarters of Americans, it is a lifeline for one in five people, providing critical preventive care, substance use treatment, acute care, and more to more than 70 million people. Medicaid is the primary provider for long-term care in the country, covering 6 in 10 nursing home residents. It is also the primary provider to help people with disabilities stay in their homes, and pays for roughly half of the births in this country.
But the Trump Administration has launched a new assault on Medicaid enrollees by pushing states to adopt rigid rules (so-called “work requirements”) that are designed to be impossible for to be met and therefore prevent coverage. These new rules are just beginning to work their way through the courts, and while a federal district court judge recently blocked them in Kentucky, they could very well make their way to the high court soon.
THE BOTTOM LINE: All 100 Senators must reject Brett Kavanaugh, who would take away, rather than protect, our care.
If the Senate does not intervene to stop Brett Kavanaugh’s nomination to the Supreme Court, the balance of the court will turn against Americans’ right to health care. The Supreme Court should be a check on President Trump’s war on health care, not a rubber stamp on it.

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The problems of East - West relations will continue to disturb international affairs for a long time to come. The history and present political situation in Lithuania is an interesting case study of a small country wedged between East and West.
In response to a growing interest in the affairs of Eastern Europe, the author began an extensive study of Lithuanian collections in academic, public and Lithuanian libraries.
The end result of the research efforts is an extensive bibliography entitled LITHUANIAN BIBLIOGRAPHY. A CHECK-LIST OF BOOKS AND ARTICLES HELD BY THE MAJOR LIBRARIES OF CANADA AND THE UNITED STATES, which contains 10,168 entries for works by 3,587 authors.
5 libraries have over 1000 titles.
I will not attempt here to evaluate these collections in terms of their adequacy, but only in terms of their numerical strength in leading subject areas. In general, all collections of the above libraries exhibit strength in the subject areas of history and language with the exception of the Newberry Library whose collection is literature-oriented. Next to the quantitative analysis a number of titles, available only in the library described, are listed.
The following four libraries, Library of Congress, University of Pennsylvania, Kent State University and Hoover Institution on War, Revolution and Peace will be fully analyzed in LITUANUS by other authors.
The third largest Lithuanian collection of monographs, pamphlets and serials is in the New York Public Library. The earlier imprints are well represented. History (450), Laws, statutes, etc., with records of Lithuanian - Polish Commonwealth (170) are the strongest subject areas. As well, serials, periodicals and newspapers are well represented. Unique titles are: M. Dukszta, ETUDE ETHNOGRAPHIQUE SUR L'ANCIEN PEUPLE LITHUANIEN (Genêve, 1917); S. Heberstein, COMENTARI DELLA MOSCOVIA (Venetia, 1550); J. v. Huepeden, DIE RUSSIFIZIERUNG DER OSTSEEPROVINZEN (Leipzig, 1887); N. I. Garbochevskii, KATALOG DREVNIM AKTOVYM KNIGAM, ETC., (Vil'na, 1872); K. Jarochowski, DZIEJE PANOWANIA AUGUSTA II, etc. (Poznan, 1874); A. K. Korevo, VILENSKAIA GUBERNIIA, ETC., (Sanktpeterburg, 1861); Lithuania. Laws, statutes, etc., TRIBUNAL OBIVATELIAM VELIKOGO KNIAZHESTVA LITOVSKOGO (Moskva, 1857); M. Morelowski, ZNASZENIE BAROKU WILENSKIEGO XVIII STOLECIA (Wilno, 1940); PRZYWILEJ UNII W. X. LITEWSKIEGO Z KORONĄ, etc., (Warszawa, 1854); RYGOS LIETUVIŲ GIMNAZIJA (Riga, 1933); J. Sawicki-Stella, SZKICE Z POWSTANIA 1863 ROKU (Kraków, 1889); J. K. Sembritzki, MEMEL IM XIX JAHRHUNDERT (Memel, 1902); V. I. Skardzis, LITOUTSY U SOVETSKAI BELARUSI (Mensk, 1935); Senas Kaunietis, LITAUISCHER KULTURKAMPF (Danzig, 1930); and periodicals: BENDRAS ŽYGIS (Klaipėda, 1938-39), RYGOS GARSAS (Riga, 1913-14), ŠALTINIS (Tilžė, 1905-1906), TARPININKAS (So. Boston, 1928-30), TĖVYNĖN (Salzburg, 1946-47).
Harvard University library, whose titles number over 1300 stands in fourth place among the leading libraries. Three hundred fifty-nine titles on history represent 27 per cent of the Harvard collection followed by one hundred fifty nine titles on the Lithuanian language with 12 per cent of their collection. The following titles are unique to this library: J. Bartoszewicz, HETMANI POLSCY KORONNI I W. K. LITEWSKIEGO (Warszawa, 1862-65); F. P. v. Jarocki ZUBR (Hamburg, 1830); L. Kilian, DAS SIEDLUNGSGEBIET DER BALTEN (Königsberg, 1939); DIE KIRCHEN ZUSTANDE IM BISTUM WILNA (Lausanne, 1918); Lithuania. Laws, statutes, etc., ĮSTATYMAI APIE VALSTYBINĮ MOKESTĮ (Kaunas, 1934); PRZYWILEJ UNII W. X. LITEWSKIEGO Z KORONĄ, etc., (Warszawa, 1843); P. Ruhig, BETRACHTUNG DER LITAUISCHEN SPRACHE (Königsberg, 1745); A. Ružancovas, LIETUVOS PERIODINĖ SPAUDA 1928 m. (Kaunas, 1929); M. Vorobjovas, VILNIAUS MENAS (Kaunas, 1940); and T. Wierzbowski, SZKOLY PARAFIALNE W POLSCE I NA LITWIE (Kraków, 1921).
The Yale University collection is just about half the size of that at Harvard University and totals about 660 titles. History and language subjects comprise almost 50 per cent of the total collection and consist of 170 and 143 titles respectively. Literature is represented with 14 per cent of 95 titles. The library possesses hard to find titles: K. M. Brzozowski, PIESNI LUDU NADNIEMENSKIEGO (Poznan, 1844); M. Dzikowski, KATALOG ATLASOW BIBLIOTEKI UNIWERSYTECKIEJ W WILNIE (Wilno, 1934-40); F. J. Hill, LITHUANIAN BIBLIOGRAPHY (Waterbury, Conn., 1938); Z. Honik, URZĄD PODWOJEWODZIEGO W W. K. LITEWSKIM, ETC., (Wilno, 1935); N. Iunitskii, FUNDUSHI I STIPENDII VILENSKAGO UCHEBNAGO OKRUGA (Vil'na, 1884); KWESTYA LITEWSKA W PRASIE POLSKIEJ (Warszawa, 1905); Lithuania. Vyriausiasis tribunolas, VYRIAUSIOJO TRIBUNOLO BAUDŽIAMŲJŲ KASACINIŲ BYLŲ SPRENDIMAI, etc., (Kaunas, 1933-34); J. Oschmian, APERCU GENERAL SUR LA GEOLOGIE DE LA LITHUANIE (Paris, 1931); J. Pakalniškis, KLAIPĖDIŠKIŲ DAINOS (Vilnius, 1908); J. Šarūnas, GRUODŽIO 17 DIENOS PERVERSMAS ([n. p.] 1927); W. Witte, BALTISCHE PHILOLOGIE (Braunschweig, 1931); E. Gilbert, NEWS FROM POLAND (London, 1641); and periodical DABARTIS (Tilžė, Kaunas, 1915-18).
Language with 152 titles is the leading subject in the University of Chicago, followed by history with 136 titles of the total 583 titles. The following rare books are available from this library: S. A. Bershadskii, DOKUMENTY I REGESTRY K ISTORII LITOVSKIKH EVREEV (Sanktpeterburg, 1882); FŪNFZIG JAHRE RUSSISCHER VERWALTUNG IN DEN BALTISCHEN PROVINZEN (Leipzig, 1883); A. Guagnino, KRONIKA SARMACYEY, etc., (Warszawa, 1768); A. Guagnino, RERUM POLONICARUM... TUM PRINCIPUM LITUANIAE, etc., (Francofurti, 1584); Chr. Hartknoch, DE REPUBLICA POLONICA... LITUANICAE, etc., (Lipsiae, 1698); D. E. Jablonskį, HISTORIA CONCENSUS SENDOMIRIENSIS, etc., (Berolini, 1731); I. I. Lappo, REKUPERATORNYI VLADIEL'CHESKII ISK V LITOVSKOM PRAVIE, etc., (Praga, 1933); E. Romer, BEITRAGE ZUR LITAUENS WIRTSCHAFTGESCHICHTE (München, 1897).
Princeton University Library has a well balanced collection covering almost all subject areas. The predominant subjects are: History 92, language 75, economy 36, politics and government 35, Lithuania general works 26 and so forth, from the total of 350 titles. Older publications in the Library are: Chr. Hartknoch, PREUSSISCHE KIRCHEHISTORIE, etc. (Danzig, 1696); H. Mošcicki, SPRAWA WLOSCIANSKA NA LITWIE (Warszawa, 1908); L. J. Rhesa, PRUTENA, etc., (Königsberg, 1809); Vilna (Diocese) INFORMATIO DE BONIS ECCLESIASTICIS DIAECESIS VILNENSIS, etc., (Halae, 1895); and C. Woldemar, ZUR GESCHICHTE UND STATISTIK DER GELEHRTEN UND SCHULANSTALTEN (Sanktpeterburg, 1865).
University of Wisconsin, Madison, and University of Alberta, Edmonton, libraries have 280 titles each and the distribution by subject areas is also the same. History 75, Language 75, Lithuania general 25 and so forth with the exception of literature in which the University of Alberta has 40 and the University of Wisconsin, 15 titles. Unique items in the University of Alberta are: M. Stryjkowski, KRONIKA POLSKA, LITEWSKA, ŽMODZKA, etc., (Warszawa, 1582); F. Becker, LITAUISCHE UND PREUSSISCHE VOLKSSAGEN (Königsberg, 1847); and K. Radziwill, SPRAWY WOJENNE I POLITYCZNE Ks. K. RADZIWILLA, etc. (Paryž, 1859).
The University of Toronto's collection is almost identical to that of University of Alberta, in all subject areas with exception that the latter shows strength in literature and the former in the subject area of politics and government.
The collection in the University of Toronto Library is almost the same as in the two previously mentioned libraries. History books represent 26 percent of the entire 280 titles. Works of Lithuanian composers: V. K. Banaitis, M. K. Čiurlionis, B. Dvarionas, J. Gruodis, J. Karnavičius, V. Klova, and V. Landsbergis are best represented in the University of Toronto Library. These are the books worth mentioning: J. A. Findlay, THE BALTIC EXCHANGE (London, 1927); G. Jacob, DER NORDISCH - BALTISCHE HANDEL, etc. (Amsterdam, 1966); NEFTEPOISKOVYE KRITERII PRIBALTIKI (Vil'nius, 1970); and C. Schütz, HISTORIA RERUM PRUSSICARUM (Leipzig, 1599).
Newberry Library in Chicago is one of the special libraries in regard to the Lithuanian Collection because from a total of 163 titles, 99 titles are on the Lithuanian language, literature and old texts, followed by history with 21 titles. In 1901, Newberry Library bought the Bonaparte Collection from the estate of Prince Louis-Lucien Bonaparte of France numbering 13,545 titles which contained 79 titles related to Lithuanian linguistics and literature published before the twentieth century. These are the more important monographs: S. Baltramaitis, SBORNIK BIBLIOGRAFICHESKIKH MATERIALOV, etc. (Sanktpeterburg, 1891-92); Bible. Lithuanian. 1755. Quandt. BIBLIA TAI EST: WISSAS SZWENTAS RASZTAS, etc. (Karalauczuje, 1755); Bible, Lithuanian. 1824. Rhesa, BIBLIA TAI ESTI: WISSAS SZWENTAS RASZTAS, etc. (Tilžėje, 1824); Bible. N.T. German. 1727. Luther. DAS NEUE TESTAMENT... The Lithuanian version of the New Testament is that of J. J. Quandt (Königsberg, 1727); F. W. Haack, VOCABULARIUM LITTHVANICO - GERMANICUM (Halle, 1730); D. Klein, GRAMMATICA LITVANICA (Regiomonti, 1653); T. Lepner, DER PREUSCHE LITTAUER (Danzig, 1744); G. Ostermeyer, NEUE LITTAUISCHE GRAMMATIK (Königsberg, 1791); P. Ruhig, LITAUISCHES - DEUTSCH... LEXICON (Königsberg, 1747). In addition to the above there is a great number of old devotional publications from the middle of the nineteenth century.
1. ALKA — Archive of American-Lithuanian Culture, Putnam, Conn.
2. Lithuanian World Archives, Chicago, 111.
3. Lithuanian Jesuit Fathers Library, Chicago, 111.
4. Sisters of St. Casimir Library, Chicago, 111.
5. Marian Fathers, College Library, Marianapolis, Thompson, Conn.
6. The Juozas Žilevičius Archive of Lithuanian Musicology, Chicago, 111.
7. Balzekas Museum of Lithuanian Culture, Chicago.
8. Economic Studies Center, Washington, D.C.
The ALKA museum was founded by a most energetic and dedicated Rev. Monsignior Francis M. Juras, p.a. who despite his advanced age still works daily in the museum. Most of the material in the ALKA collection is in the Lithuanian language and covers all areas on Lithuania. All the material is not yet catalogued, but arranged in a very orderly manner and is quite accessible.
Among the many valuable and old books, the following were noted: ALBUM IN COMMEMORATION OF THE 500th ANNIVERSARY OF THE DEATH OF VYTAUTAS THE GREAT (Ed. by H. Serafinas. Kaunas, 1933); Lithuanian, Finansų Ministerija LIETUVOS VALSTYBĖS 1925 - 38 BIUDŽETAI (Kaunas, 1924 - 38); MARGINIAI (Kaunas, 1936) an album of samples of national costumes which was prepared for the World's Fair in New York, Lithuanian Pavilion; and A. Tamošaitis, LIAUDIES MENO DIRBINIŲ RAŠTAI (Kaunas, 1933). It also houses 67 newspapers and periodical titles. The most important ones are: ATEITIS (Kaunas, 1911-40); AUSZRA (Tilžė, 1883-1886); DARBININKAS (Boston, Brooklyn, 1915- to date); DRAUGAS (Wilkes Barre, Chicago, 1904- to date); DRAUGIJA (Kaunas, 1907 - 40); RUOMUVA (Kaunas, no. 1-2, 1921); ŠALTINIS (Tilžė, 1906-12); and TAUTOS ŪKIS (Kaunas, 1931-39).
The ALKA museum has also special collections such as: J. O. Širvydas memoirs; archival material of the Head office and the European Branch of the United Lithuanian Relief Fund of America; Freethinkers' Library and Archives from Brockton, Mass.; Archives of Ateitininkai from Refugee camps in Germany as well as four large steel cabinets packed with Lithuanian music sheets and monographs on Lithuanian music; one steel cabinet containing several thousands programs and descriptive materials of concerts, meetings, conferences, etc.; and one steel cabinet full of prayer books, kantičkos and other devotional publications mostly with imprints from the nineteenth century.
The Lithuanian World Archives were established some 30 years ago. The Archives contain more than 12,000 books, house over 400 periodical titles, and more than 200,000 pages of various documents relating to the life and conditions of various refugee camps in Europe. This archive is the main source for material on Lithuanian Refugee Studies. It is permanently housed at the Lithuanian Jesuit Fathers Youth Center in Chicago. It has a catalogued collection, but most of the material is in storage. It has established working hours and can be used by scholars for research work. The Archive was established by historian Vincentas Liulevičius, who was its director and curator for over 27 years. Since 1972 the Archive is under the direction of Č. Grincevičius. A complete description of the Lithuanian World Archives will appear in a future issue of "Lituanus".
The Lithuanian Jesuit Fathers in Chicago have in their library about 2500 titles (including Belles lettres, 1300). The collection is strongest in • history with 300 titles, followed by biography with 100 titles, then history of Lithuanian parishes, especially in the United States, with 100 titles. The library has many newspapers and journals of which 50 titles are complete and bound. The Collection is catalogued. Unique titles are: KNYGOS SAVOS SPAUDOS (Chicago, 1915); KUNIGAI KOVOJE SU CARO VALDŽIA (Kaunas, 1919); Lietuvių bibliografinė tarnyba, Memmingen, LIETUVIŲ KNYGA TREMTYJE (Neumünster, 1948); MŪSŲ RAŠTAI, (Kaunas, 1938); K. Sčesnulevičius, MOKSLINGO MIŠKININKO ANTANO RUKUIŽOS SPAUSDINTŲ DARBŲ SĄRAŠAS (Chicago, 1965); Šv. KAZIMIERO DRAUGIJOS LEIDINIŲ SĄRAŠAS (Kaunas, 1924); and E. Tyszkiewicz, BADANIA ARCHEOLOGICZNE, etc. (Wilno, 1850).
A well rounded collection is located in the convent of the Sisters of St. Casimir, Chicago. Their collection is more oriented towards young people seeking an education, but consisting of well selected materials. In addition to books in the social sciences there is a substantial number of Lithuanian literary works. The collection is catalogued. The library has about 2000 titles of books, pamphlets and serials, newspapers and periodicals. More important are: T. Brazys, MŪSŲ DAINELĖS (Kaunas, 1923); P. Lomanas, PRADŽIOS MOKYKLŲ ĮSTATYMAI, TAISYKLĖS, etc. Kaunas, 1930); J. Norkus, DIDŽIOJO KARO LAIKŲ LIETUVIŲ DAINOS (Kaunas, 1927); A. Smetona, RAŠTAI (Kaunas, 1930); A. Smetona, ANTANO SMETONOS DIDŽIOSIOS MINTYS (Kaunas, 1935 - 37); A. Tamošaitienė, MŪSŲ RANKDARBIAI (Kaunas, 1939); E. Veckenstedt, MYTAI, PASAKOS IR LEGENDOS (Plymouth, Pa., 1897); and periodicals: KOSMOS (Kaunas, 1920-31, 38); NAUJOJI VAIDILUTĖ (Kaunas, 1921-40); PASAULIO LIETUVIS (Kaunas, 1937 - 40); PAVASARIS (Kaunas, 1921 - 35); and ŠVIETIMO DARBAS (1919-1938, incomplete).
The Marian Fathers, Indiana, moved their college for Lithuanian students to Marianapolis, Thompson, Conn, in 1930. Here they have developed a good collection of more than 2000 books, mostly Lithuanian, and including translations info Lithuanian from other literatures. The collection exhibits strength in biography with 210 titles, history with 236, history of Lithuanian parishes with 190, folklore with 120, and language with 70 titles. The collection is catalogued and housed in a separate library in the College Building.
Singled out from the many titles are: J. Basanavičius, APIE SENOVĖS LIETUVOS PILIS (Tilžė, 1891); V. P. Bičiūnas, LIAUDIES TEATRAS (Kaunas, 1936); M. Davainis Silvestravičius, PATARLĖS IR DAINOS (Tilžė, 1889); P. Leonas, LIETUVIŲ ATSTOVŲ 4-ton VALSTYBĖS DŪMON RINKIMAMS PASIBAIGUS (Kaunas, 1913); J. Matulevičius, MIESTŲ APSKRITAI PRAMONIJOS DARBININKŲ KLAUSIMU (Kaunas, 1909); A. Tamošaitis SODŽIAUS PRAMONĖ; AUSTINIAI KILIMAI (Kaunas, 1935); A. Tamošaitis, SODŽIAUS PRAMONĖ; STALTIESĖS (Kaunas, 1935); J. Tumas, ŠEIMOS VĖŽIAI (Kaunas, 1929); and S. Yla, LIETUVIŲ APOLOGETINĖS LITERATŪROS BIBLIOGRAFIJA, 1904-1914 (Kaunas, 1935); and periodicals: AUSZRA (Tilžė, 1883-1885); AKADEMIKAS (Kaunas, 1935-39); LOGOS (Kaunas, 1921, 1923-1930, 1935-1937); LIEPSNOS (Kaunas, 1937-39); MINTIS (Memmingen, Ger., 1947 49); PIETŲ AMERIKOS ŽINIOS (Buenos Aires, 1940-41); RYTAS (Kaunas, 1932-35); STUDENTŲ DIENOS (Kaunas, 1937-40); VILNIAUS ŽINIOS (Vilnius, 1906); and ŽIDINYS (Kaunas, 1925-40).
The Balzekas Museum of Lithuanian Culture in Chicago, 111. has a small but well organized library. All books are catalogued. The Collection covers mostly Lithuanian history, geneology, heraldry and numismatics, consisting of 415 titles of books and a great number of maps of Lithuania. It has a large accumulation of newspapers, periodicals and serial publications which requires completion, sorting and binding into volumes.
V. K. Banaitis, LIETUVIŲ EVANGELIKŲ LIAUDIES GIESMĖS (Ludwigsburg, Ger., 1951); M. Ivanauskas, ARQUITETURA LITUANA (Sao Paulo, 1957); H. Kreftas, KLAIPĖDA (Vilnius, 1969); E. Krolikowski, WILENSZCZYZNA (Roma, 1946); A. M. Račkus, CYCLOPEDIA OF LITHUANIAN NUMISMATICS (Chicago, 111., 1965); A. M. Račkus, LIETUVOS PINIGAI VYTAUTO DIDŽIOJO GADYNĖJE (n.p., 1930); A. Tamošaitis, AUSTINIAI KILIMAI (Kaunas, 1935); A. Tamošaitis, LIETUVIŲ MOTERŲ TAUTINIAI DRABUŽIAI (Kaunas, 1939); S. Yla, KŪČIOS, PRASMĖ, SIMBOLIAI, MALDOS (Putnam, Conn., n.d.).
The Juozas Žilevičius Library of Lithuanian Musicology is in Chicago, Illinois, housed in one room of the Youth Center next to the Lithuanian Jesuit Fathers. This library was fully described in LITUANUS (Vol. 19, No. 4, p. 40 - 50) and will again be presented in a future issue of LITUANUS.
Not many people have heard about the very special research library on Lithuanian economic affairs called The Economic Studies Center. This Library was started by a group of devoted economists, of whom Dr. Povilas A. Mažeika of Washington, D.C. is the leader. They follow the press of the world on economic matters. When something of importance on Lithuania is found, the article is abstracted and entered on Kardex cards. The abstract receives a Subject heading and is subsequently filed in one of the Kardex filing cabinets. The Library is very glad to give information to researchers, to students writing theses in that subject area and to the general reader researching for his own pleasure.
* For a complete list of Lithuanian materials in the Bonaparte Collection of the Newberry Library see: "Rare Baltica in the Bonaparte Collection, LITUANUS Vol. X, No. 3/4 (Pall and Winter, 1964), pp. 103-111.

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(001) For property tax purposes, mobile homes, as defined by §66.058 (1)(d), Stats.1, are classified into two categories: improvements to real property and personal property.
(002) Under §70.043(1). Stats., a mobile home is an improvement to real property if it is connected to utilities and is set upon a foundation upon land owned by the mobile home owner.
(003) The statute provides that a mobile home is "set upon a foundation" if it is off its wheels and is set upon some other support.
(004) Under §70.043(2); a mobile borne is personal property if the land upon which it is located is not owned by the mobile home owner or if the mobile home is not set upon a foundation or connected to utilities.
(005) Mobile homes that are classified as personal property are exempt from taxation under §70.111(19)(b), Stats ., if the home is no larger than 400 square feet and is used primarily as temporary living quarters for recreational, camping, travel or seasonal purposes.
(006) A large group of persons who each own a mobile home located on an individually-owned lot in a real estate development known as Wisconsin's Rock River Leisure Estates joined together to appeal the Town of Fulton's classification of their mobile homes as improvements to real property.
(007) The owners claimed that their mobile homes were not "set upon a foundation" under 70.043(1), Stats.
(008) Twenty owners were selected as being representative of all the owners and stipulated to the following facts.
(009) Each owner had, on his or her lot, a "basic unit" which met the definition of "mobile home" under Wis. Stats. 66.058(1)(d).
(010) The floor areas of the basic units ranged from 372 to 420 square feet.
(011) Each basic unit still had its wheels attached and was connected to utilities.
(012) All but four (4) of the units had their weight at least partially on their wheels and partially on some form of stabilizer, such as cement blocks, cinder blocks, or screw jacks.
(013) Three units had their weight completely supported by stabilizers.
(014) One unit had no stabilizers and was supported only by its wheels.
(015) Each owner also had additional structures including decks, screen rooms, porches and sheds on their lot that were either attached to the basic unit or freestanding.
(016) The amount of time the owners spent in the homes varied.
(017) Two of the owners resided in their homes for 12 months, three for seven months, three for six months, one for five and one-half months, one for three months, and the rest for two months of the year or less.
(018) The circuit court had interpreted "set upon a foundation" as requiring that a majority of the weight of the mobile home be off its wheels before it could be classified as real property.
(019) The court of appeals held that a mobile borne is "set upon a foundation" when any part of its weight is off its wheels and set upon some other support.
(020) The Wisconsin Supreme Court rejected that conclusion because state law2 requires that at least some portion of every mobile home's weight be supported by something other than its wheels.
(021) The Court held that the key was not how much weight was supported by something other than the wheels, but whether the support was temporary in nature.
(022) The Court stated: We hold that a mobile home is "'set upon a foundation" when the home is resting for more than a temporary time, in whole or in part, on some other means of support than its wheels.
(023) This definition rests on a distinction between temporary and permanent, recognizing that the legislature intended that the permanency of the mobile home was important in making a distinction between real and personal property.
(024) We conclude that the legislature intended that anything more than a transient location would be permanent and, accordingly, an improvement to real property.
(025) Ahrens v. Town of Fulton, 2002 WI 29, Case No. 99-2466 (March 26,2002), affirming 2000 WI App 268.
(026) The Court declined to define "temporary" in terms of a specific number of days, concluding that such a responsibility is better left to the legislature or the state Department of Revenue.
(027) The Court called upon the legislature to fix the various statutes, calling them "nearly irreconcilable" in their current form.
(028) The Court concluded that all of the mobile homes in question were resting for more than a temporary time on some other means of support than its wheels and had all been properly classified as real property.
(029) With regard to the mobile home that was said to be resting only on its wheels, the Court noted that under the definition of mobile home, additions or attachments are considered as part of the mobile home itself and stated that as a result, if that part of the mobile home is resting on some other means of support than the wheels of the basic unit, the mobile home itself is being supported by means other than the wheels.
(030) Section 66.058(1)(d) was renumbered as § 66.0435(1)(d) when ch.66 was recodified but the court's decision is based on the statutes as they existed before the recodification.