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FEDERAL TRADE COMMISSION v. R. F. KEPPEL & BRO.
[291 U.S. 304, 306] The Attorney General and Mr. Harold M.Stephens, Asst. Atty. Gen., for petitioner.
This case comes here on certiorari, 290 U.S. 613 , 54 S.Ct. 62, 78 L. Ed. --, to review a decree of the Court of Appeals for the Third Circuit, which set aside an order of the Federal Trade Commission forbidding certain trade practices of respondent as an unfair method of competition. 63 F.(2d) 81; section 5, Federal Trade Commission Act, 38 Stat. 717, 719 ( 15 USCA 45).
The Commission found that respondent, one of numerous candy manufacturers similarly engaged, manufactures, sells, and distributes, in interstate commerce, package assortments of candies known to the trade as 'break and take' packages, in competition with manufacturers of assortments known as 'straight goods' packages. Both types are assortments of candies in packages in convenient arrangement for sale by the piece at a small price [291 U.S. 304, 307] in retail stores in what is known as the penny candy trade. The break and take assortments are so arranged and offered for sale to consumers as to avail of the element of chance as an inducement to the retail purchasers. One assortment, consisting of 120 pieces retailing at 1 cent each, includes four pieces, each having concealed within its wrapper a single cent, so that the purchasers of those particular pieces of candy receive back the amount of the purchase price and thus obtain the candy without cost. Another contains 60 pieces of candy, each having its retail price marked on a slip of paper concealed within its wrapper; 10 pieces retail at 1 cent each, 10 at 2 cents, and 40 at 3 cents. The price paid for each piece is that named on the price ticket, ascertained only after the purchaser has selected the candy and the wrapper has been removed. A third assortment consists of 200 pieces of candy, a few of which have concealed centers of different colors, the remainder having white centers. The purchasers of the candy found to have colored centers are given prizes, packed with the candy, consisting of other pieces of candy or a package containing lead pencils, penholder and ruler. Each assortment is accompanied by a display card, attractive to children, prepared by respondent for exhibition and use by the dealer in selling the candy, explaining the plan by which either the price or the amount of candy or other merchandise which the purchaser receives is affected by chance. The pieces of candy in the break and take packages are either smaller than those of the competing straight goods packages, which are sold at a comparable price without the aid of any chance feature, or they are of inferior quality. Much of the candy assembled in the break and take packages is sold by retailers, located in the vicinity of schools, to school children.
The Commission found that the use of the break and take package in the retail trade involves the sale or dis- [291 U.S. 304, 308] tribution of the candy by lot or chance; that it is a lottery or gambling device which encourages gambling among children; that children, enticed by the element of chance, purchase candy so sold in preference to straight goods candy; and that the competition between the two types of package results in a substantial diversion of trade from the manufacturers of the straight goods package to those distributing the break and take type. It found further that in some states lotteries and gaming devices are penal offenses; that the sale or distribution of candy by lot or chance is against public policy; that many manufacturers of competing candies refuse to engage in the distribution of the break and take type of package because they regard it as a reprehensible encouragement of gambling among children; and that such manufacturers are placed at a disadvantage in competition. The evidence shows that others have reluctantly yielded to the practice in order to avoid loss of trade to their competitors.
Upon the record it is not open to question that the practice complained of is a method of competition in interstate commerce and that it is successful in diverting trade from competitors who do not employ it. If the practice is unfair within the meaning of the act, it is equally clear that the present proceeding, aimed at suppressing it, is brought, as section 5 of the act requires, 'in the interest of the public.' The practice is carried on by forty or more manufacturers. The disposition of a large number of complaints pending before the Commission, [291 U.S. 304, 309] similar to that in the present case, awaits the outcome of this suit. Sales of the break and take package by respondent aggregate about $234,000 per year. The proceeding involves more than a mere private controversy. A practice so generally adopted by manufacturers necessarily affects not only competing manufacturers but the far greater number of retailers to whom they sell, and the consumers to whom the retailers sell. Thus the effects of the device are felt throughout the penny candy industry. A practice so widespread and so far reaching in its consequences is of public concern if in other respects within the purview of the statute. Federal Trade Commission v. Royal Milling Co., 288 U.S. 212, 216 , 53 S.Ct. 335. Compare Federal Trade Commission v. Klesner, 280 U.S. 19, 28 , 50 S.Ct. 1, 68 A.L.R. 838. Hence we pass without further discussion to the decisive question whether the practice itself is one over which the Commission is given jurisdiction because it is unfair.
Although the method of competition adopted by respondent induces children, too young to be capable of exercising an intelligent judgment of the transaction, to purchase an article less desirable in point of quality or quantity than that offered at a comparable price in the straight goods package, we may take it that it does not involve any fraud or deception. It would seem also that competing manufacturers can adopt the break and take device at any time and thus maintain their competitive position. From these premises respondent argues that the practice is beyond the reach of the Commission because it does not fall within any of the classes which this Court has held subject to the Commission's prohibition. See Federal Trade Commission v. Gratz, 253 U.S. 421, 427 , 40 S.Ct. 572; Federal Trade Commission v. Beech Nut Packing Co., 257 U.S. 441, 453 , 42 S. Ct. 150, 19 A.L.R. 882; Federal Trade Commission v. Raladam Co., 283 U.S. 643, 652 , 51 S.Ct. 587, 79 A.L.R. 1191; Federal Trade Commission v. Royal Milling Co., supra, 288 U.S. at page 217, 53 S.Ct. 335. But we cannot say that the Com- [291 U.S. 304, 310] mission's jurisdiction extends only to those types of practices which happen to have been litigated before this Court.
Neither the language nor the history of the act suggests that Congress intended to confine the forbidden methods to fixed and unyielding categories. The common law afforded a definition of unfair competition and, before the enactment of the Federal Trade Commission Act, the Sherman Anti- Trust Act (15 USCA 1-7, 15 note) had laid its inhibition upon combinations to restrain or monopolize interstate commerce which the courts had construed to include restraints upon competition in interstate commerce. It would not have been a difficult feat of draftsmanship to have restricted the operation of the Trade Commission Act to those methods of competition in interstate commerce which are forbidden at common law or which are likely to grow into violations of the Sherman Act, if that had been the purpose of the legislation.
3 References showing the details of the legislative history of the act may be found in Handler, The Jurisdiction of the Federal Trade Commission over False Advertising, 31 Columbia Law Review, 527; Montague, Unfair Methods of Competition, 25 Yale Law Journal, 20; Henderson, The Federal Trade Commission, c. I. [291 U.S. 304, 313] trader may not, by pursuing a dishonest practice, force his competitors to choose between its adoption or the loss of their trade. A method of competition which casts upon one's competitors the burden of the loss of business unless they will descend to a practice which they are under a powerful moral compulsion not to adopt, even though it is not criminal, was thought to involve the kind of unfairness at which the statute was aimed.
The practice in this case presents the same dilemma to competitors, and we can perceive no reason for distinguishing between the element of chance as employed here and the element of deception involved in labelling cotton goods 'Natural Wool,' as in the Winsted Case. It is true that the statute does not authorize regulation which has no purpose other than that of relieving merchants from troublesome competition or of censoring the morals of business men. But here the competitive method is shown to exploit consumers, children, who are unable to protect themselves. It employs a device whereby the amount of the return they receive from the expenditure of money is made to depend upon chance. Such devices have met with condemnation throughout the community. Without inquiring whether, as respondent contends, the criminal statutes imposing penalties on gambling, lotteries and the like, fail to reach this particular practice in most or any of the states, it is clear that the practice is of the sort which the common law and criminal statutes have long deemed contrary to public policy. For these reasons a large share of the industry holds out against the device, despite ensuing loss in trade, or bows reluctantly to what it brands unscrupulous. It would seem a gross perversion of the normal meaning of the word, which is the first criterion of statutory construction, to hold that the method is not 'unfair.' See Federal Trade Commission v. Royal Milling Co., supra, 288 U.S. at page 217, 53 S.Ct. 335; Federal Trade Commission v. Algoma Lumber Co., supra, 291 U.S. 67 , 54 S.Ct. 315. [291 U.S. 304, 314] While this Court has declared that it is for the courts to determine what practices or methods of competition are to be deemed unfair, Federal Trade Commission v. Gratz, supra, in passing on that question the determination of the Commission is of weight. It was created with the avowed purpose of lodging the administrative functions committed to it in 'a body specially competent to deal with them by reason of information, experience and careful study of the business and economic conditions of the industry affected,' and it was organized in such a manner, with respect to the length and expiration of the terms of office of its members, as would 'give to them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience.' Report of Senate Committee on Interstate Commerce, No. 597, June 13, 1914, 63d Cong., 2d Sess., pp. 9, 11. See Federal Trade Commission v. Beech Nut Packing Co., supra, 257 U.S. 441 , at page 453, 42 S.Ct. 150, 19 A.L.R. 882; compare Illinois Central R.R. v. Interstate Commerce Commission, 206 U.S. 441, 454 , 27 S.Ct. 700. If the point were more doubtful than we think it, we should hesitate to reject the conclusion of the Commission, based as it is upon clear, specific and comprehensive findings supported by evidence.

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Berger Montague’s Credit Reporting and Background Checks Practice Group litigates on behalf of consumers nationwide to protect them against violations of their rights under the Fair Credit Reporting Act and other consumer protection laws that protect consumers from inaccurate, unfair, or discriminatory credit reports or background checks.
The Fair Credit Reporting Act is a federal law that governs credit reports, background checks, and many other reports containing information about individuals. Potential and current employers and creditors are relying more and more on background checks and credit reports when making hiring and firing decisions, and the consumer reporting agencies that prepare the reports are often more concerned with profits than with accuracy. We are committed to ensuring that credit report and background check information is accurate and that it only be sold and used for legal purposes.
Berger Montague is dedicated to protecting consumers and ensuring that consumers receive justice when their rights have been violated by employers, consumer reporting agencies, and debt collectors. The attorneys in the Credit Reporting and Background Checks Practice Group team are dedicated to protecting consumers’ rights and privacy. We are highly experienced in effectively litigating these claims. We have successfully represented hundreds of thousands of consumers across the country and have achieved relief worth millions of dollars on behalf of our clients.
The Fair Credit Reporting Act (“FCRA”) is a federal law that regulates certain types of reports that contain information about consumers. The FCRA covers traditional credit reports plus employment background checks and virtually any other sale of data about individuals. The scope of the FCRA is very broad and it regulates reports prepared to evaluate consumers for employment, credit, insurance, and other similar purposes.
The FCRA contains many consumer protections. The statute requires that “consumer reporting agencies” (which is what the FCRA calls background check companies and credit reporting agencies) use reasonable procedures to assure maximum possible accuracy in their reports. The law also restricts the sale of reports to people who have a legally acceptable reason for receiving the reports.
The FCRA also requires that a consumer reporting agency reinvestigate any disputed information free of charge. The FCRA also allows individuals to file lawsuits against the users or creators of a report if the FCRA’s rules are not followed. It provides for actual damages, punitive damages, statutory damages, and attorneys’ fees and costs.
Consumer reporting agencies include a wide range of companies that compile reports about people for credit, employment, housing, and other purposes. They may also be called background check companies, tenant screening companies, credit reporting agencies, or credit reporting bureaus. Experian, Equifax and TransUnion are some of the largest and best known credit reporting agencies. The Consumer Financial Protection Bureau publishes a list of specialty consumer reporting agencies at http://files.consumerfinance.gov/f/201604_cfpb_list-of-consumer-reporting-companies.pdf. All of these agencies are obligated to follow the FCRA’s rules.
How Can You Monitor Your Credit?
We are always happy to help concerned consumers obtain a copy of their report. The easiest way to monitor your credit is to request a free credit report from one of the three major bureaus – Equifax, Experian, and TransUnion. You are entitled to a free report from each every year, so if you do only one bureau at a time, you can request a report every four months. You can request your free reports online at www.annualcreditreport.com, or you can contact us and we will help you obtain a copy of your report.
You can also monitor your bank and credit card statements for suspicious activity, or sign up for a credit monitoring service to help detect fraud, and identity theft.
What is a Credit Score & How Can You Improve It?
A credit score is a 3-digit number that relates to how likely a consumer is to be able to repay debt, and is based on things like how often that consumer makes payments on time, and how many accounts are in good standing.
A few steps you can take to ensure your credit score is as high as it can be include: pay your bills and loan payments on time every month, minimize your debt, don’t carry a balance on your credit cards, don’t have too many lines of credit open, and monitor your credit.
Who Can Pull A Consumer Report on You?
Employers and potential employers can access your consumer report, but only with your written permission. In very limited circumstances, an employer could obtain a background check without permission, but only if it is doing so to investigate misconduct by a current employee, and even then, the employer is required to give the employee notice of the report if it is going to take an adverse action, such as terminate the employee.
Other entities can access your report without permission, at the time you are entering into a transaction or credit relationship with them, such as banks, credit card companies, and landlords, but they are required to have a permissible purpose to do so.
How Can You Fix a Mistake on Your Report?
Our firm is always happy to talk with consumers who are concerned about an error on a report.
If you become aware that a consumer reporting agency has produced a report on you that is incorrect or contains errors, you have a right to dispute the contents of the report. Under the FCRA, reporting agencies are required to reinvestigate any disputed information within 30 days of receiving a dispute. We can help you with the dispute process.
Many consumer reporting agencies have forms you can use to submit a dispute, or you can send a letter that describes the dispute. To ensure the agency receives your dispute, you should send it by certified mail with a return receipt requested, and you should attach copies of any documents that show the information is incorrect. After completing its reinvestigation, the agency is required to inform you of the results.
If you find that incorrect information is popping up on reports from different consumer reporting agencies, the problem might not be with the company, but with the government’s records. In order to fix the problem, you need to first figure out exactly which government agency is providing the inaccurate information, by requesting a copy of your consumer file from the consumer reporting agency. Once you see who the source of the inaccurate information is, you should contact that office with the correct information and hopefully the problem can be corrected at the source.
Is it Legal to Discriminate Against Someone Based on Criminal Background?
Many states have laws protecting people with criminal records from discrimination. If you applied for a job, apartment, or credit, and were denied based on your criminal background, you may have a claim for money damages.
It is important to also know that consumer reporting agencies can only report to employers two categories of criminal information: (1) convictions, and (2) non-convictions which are within the last seven years of the date of the report. It illegal to report a non-conviction (such as a dismissed charge, a non-criminal traffic citation, or an arrest) that is older than seven years.
If an employer is going to use an individual’s background check as a basis for an adverse employment-related decision, such as not hiring, terminating, or demoting, the employer must provide notice to the individual, and include a copy of the background check, prior to taking that adverse action.
It is legal for employers to use criminal background information to make employment decisions, but only within the limits of the laws.
What are Some Examples of Berger Montague Attorneys’ Credit Reporting and Background Check Cases?
Rubio-Delgado v. Aerotek, Inc., No. 16-cv-1066 (S.D. Ohio). FCRA class action, alleging violations by employer regarding the disclosure & authorization provided to applicants and current employees, as well as the provision of notice to applicants and employees if an adverse action was based on a background check, resulting in a $15 million settlement.
Hillson v. Kelly Services, Inc., No. 15-cv-10803 (E.D. Mich.). FCRA class action, alleging similar violations by employer as those in Aerotek, resulting in a $6.749 million settlement.
Ernst v. DISH Network, LLC & Sterling Infosystems, Inc., No. 12-cv-8794 (S.D.N.Y.). FCRA class action, alleging violations by employer regarding the disclosure & authorization provided to contractors, resulting in a $1.75 million settlement with employer.
Nesbitt v. Postmates, Inc., No. CGC-15-547146 (Cal. Super. Ct., San Fran. Cnty.). FCRA class action, alleging violations by employer regarding the disclosure & authorization provided to applicants and current employees, as well as the provision of notice to applicants and employees if an adverse action was based on a background check, resulting in a $2.5 million settlement.
Halvorson v. TalentBin, Inc., No. 15-cv-5166 (N.D. Cal.). FCRA class action, alleging violations by online data aggregator regarding its obligations to notify users of its profiles about FCRA regulations, and to obtain certifications from those users regarding compliance with the FCRA, resulting in a $1.15 million settlement.
Legrand v. IntelliCorp Records, Inc., No. 15-cv-2091 (N.D. Ohio). FCRA class action, alleging violations by consumer reporting agency regarding accuracy of its reports, resulting in a $1.1 million settlement.
What Qualities Set Berger Montague Apart From Other Firms?
We are one of the largest plaintiff-side law firms in the U.S. We handle individual and class action cases. With more than 60 attorneys, we have plentiful resources to staff large and complex cases as well as smaller but equally important matters. Having a deep bench of attorneys is critical to effectively litigating our class actions, which generally take several years to resolve.
Berger Montague is the rare class action firm that has tried and won multiple class action jury trials. We have the expertise to bring our cases to trial if meaningful settlements cannot be reached earlier in the litigation.
We have a 45-plus year history, much longer than the vast majority of our competitors. With our thorough understanding of class actions, we litigate our cases from a position of strength, using time-tested approaches and insights. Throughout our decades-long history, we have cultivated strong relationships with other class action firms, with whom we partner in many of our cases.
Our commitment to Fair Credit Reporting Act cases is longstanding and we have a demonstrated track record of success in litigating these cases. Department Chair E. Michelle Drake is a Harvard Law School graduate who speaks nationally about Fair Credit Reporting Act cases. She sits on the board of the National Association of Consumer Advocates, has authored a book chapter on background checks, and has served as lead counsel in dozens of Fair Credit Reporting Act matters. Her class action cases have resulted in recoveries valued in excess of $150 million for her clients.
You’re very articulate on this issue. … Obviously, you’re very thoughtful and you have given it a great deal of thought. …You are extraordinarily impressive. …You have allayed all of my concerns and have persuaded me that this is an important issue, and that you have done a great service to the class. And for that reason, I am going to approve your settlement in all respects… And I congratulate you on your excellent work.
Nov. 7, 2017, Final Approval Hearing, Nesbitt v. Postmates, Inc., No. CGC-15-547146.
Counsel’s quality of work in this case was high. The Court has been impressed with counsel’s in-court arguments. And counsel has provided the Court with quality briefing as well.
Aug. 11, 2017, Opinion & Order on Mtn. for Atty. Fees, and Mtn. for Final Approval, Hillson v. Kelly Services, Inc., No. 15-cv-10803.
The parties in this case are represented by counsel with substantial experience in class action litigation, and FCRA cases in particular. … Class Counsel are experienced and knowledgeable in FCRA litigation, are skilled, and are in good standing.
June 30, 2017, Report & Recomm’n. on Final Approval, Rubio-Delgado v. Aerotek, Inc., No. 16-cv-1066.
Berger Montague’s class actions are brought on a contingent fee basis. That means plaintiffs and the class do not pay out-of-pocket attorneys’ fees or litigation costs. Attorneys’ fees and costs are paid from the recovery obtained for the class, subject to court approval.
We invite you to contact us about a potential case. Please fill out the contact form to the right. You may also contact our Credit Reporting and Background Checks Act team of attorneys directly. The Department Chair, E. Michelle Drake, can be reached at emdrake@bm.net or (612) 594-5933.

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37 C.F.R. 1.59 Expungement of information or copy of papers in application file.
(1) Information in an application will not be expunged, except as provided in paragraph (b) of this section or § 41.7(a) or § 42.7(a) of this title.
(2) Information forming part of the original disclosure (i.e., written specification including the claims, drawings, and any preliminary amendment present on the filing date of the application) will not be expunged from the application file.
(b) An applicant may request that the Office expunge information, other than what is excluded by paragraph (a)(2) of this section, by filing a petition under this paragraph. Any petition to expunge information from an application must include the fee set forth in § 1.17(g) and establish to the satisfaction of the Director that the expungement of the information is appropriate in which case a notice granting the petition for expungement will be provided.
(c) Upon request by an applicant and payment of the fee specified in § 1.19(b), the Office will furnish copies of an application, unless the application has been disposed of (see §§ 1.53(e), (f) and (g) ). The Office cannot provide or certify copies of an application that has been disposed of.
37 CFR 1.59 provides that information, other than the original disclosure of the application, may be expunged from the file wrapper provided a petition to expunge under 37 CFR 1.59(b) and the required fee set forth in 37 CFR 1.17(g) are filed, and further that petitioner has established to the satisfaction of the Director that the return of the information is appropriate. Expungement of information that was originally submitted to the Office under MPEP § 724.02, or that should have been submitted in a sealed envelope as discussed in MPEP § 724.02, is appropriate when the petitioner complies with items (A)-(E) set forth in MPEP § 724.05, paragraph I, and the examiner or other appropriate Office official who is responsible for considering the information has determined that the information is not material to patentability. Expungement of information that was inadvertently submitted to the Office is appropriate provided that items (A)-(F) set forth in MPEP § 724.05, paragraph II, are satisfied. See also MPEP § 724.
Where the information to be expunged was not submitted pursuant to MPEP § 724.02 or as part of an Information Disclosure Statement, the petition should be sent to the Office of Petitions for decision.
The decision on the petition to expunge should be held in abeyance until the application is allowed or an Ex parte Quayle action, or a Notice of Abandonment is mailed, at which time the petition will be decided. However, where it is clear that the information was submitted in the wrong application, then the decision on the petition should not be held in abeyance. See MPEP § 724.05, paragraph III. In a pending application that has not been allowed or in which an Ex parte Quayle action has not been mailed, the examiner may not have finally considered what is material to a decision of patentability of the claims. Petitioner may be notified that the decision on the petition under 37 CFR 1.59(b) to expunge information in an application will be held in abeyance and be decided upon allowance of the application, or the mailing of an Ex parte Quayle action or a Notice of Abandonment using form paragraph 7.204.
This is a response to the petition under 37 CFR 1.59(b), filed , to expunge information from the above identified application.
The decision on the petition will be held in abeyance until allowance of the application or mailing of an Ex parte Quayle action or a Notice of Abandonment, at which time the petition will be decided.
Petitioner requests that a document entitled , filed , be expunged from the record. Petitioner states either: (A) that the information contains trade secret material, proprietary material and/or material that is subject to a protective order which has not been made public; or (B) that the information submitted was unintentionally submitted and the failure to obtain its return would cause irreparable harm to the party who submitted the information or to the party in interest on whose behalf the information was submitted, and the information has not otherwise been made public. The petition fee set forth in 37 CFR 1.17(g) has been paid.
The decision on the petition is held in abeyance because prosecution on the merits is not closed. Accordingly, it is not appropriate to make a final determination of whether or not the material requested to be expunged is "material," with "materiality" being defined as any information which the examiner considers as being important to a determination of patentability of the claims. Thus, the decision on the petition to expunge must be held in abeyance at this time.
During prosecution on the merits, the examiner will determine whether or not the identified document is considered to be "material." If the information is not considered by the examiner to be material, the information will be removed from the official file.
1. A Technology Center Director decides this petition only if the information was submitted either pursuant to MPEP § 724.02 or in an information disclosure statement.
(b) the petition is also accompanied by a petition under 37 CFR 1.183 requesting waiver of one of the requirements explicitly set forth in 37 CFR 1.59 (e.g., requesting expungement of part of the original disclosure).
3. This decision is printed with the USPTO letterhead.
4. In bracket 6, clearly identify the document which petitioner requests to expunge. For example, refer to the author and title of the document.
5. Mail with PTO-90C cover sheet.
When an application has been allowed, an Ex parte Quayle action has been mailed, or an application is abandoned, a petition to expunge should be decided by a TC Director (see MPEP § 1002.02(c)). At this time a determination must be made as to whether the information in question is material. Form paragraph 7.205 should be used to grant a petition to expunge, whereas form paragraphs 7.206 - 7.213 should be used to dismiss such a petition.
This is a decision on the petition under 37 CFR 1.59(b), filed , to expunge information from the above identified application.
Petitioner requests that a document entitled , filed , be expunged from the record. Petitioner states that either (A) that the information contains trade secret material, proprietary material and/or material that is subject to a protective order which has not been made public; or (B) that the information submitted was unintentionally submitted and the failure to obtain its return would cause irreparable harm to the party who submitted the information or to the party in interest on whose behalf the information was submitted, and the information has not otherwise been made public. The petition fee set forth in 37 CFR 1.17(g) has been paid.
The information in question has been determined by the undersigned to not be material to the examination of the instant application.
Applicant is required to retain the expunged material(s) for the life of any patent which issues on the above-identified application.
The expunged material has been removed from the official file.
1. A Technology Center Director decides this petition only if the information was submitted either pursuant to MPEP § 724.02 or in an information disclosure statement. Furthermore, a petition to expunge may not be granted unless the application has been allowed or is abandoned, or an Ex Parte Quayle action has been mailed.
4. In brackets 6 and 8, clearly identify the expunged document. For example, refer to the author and title of the document.
Petitioner requests that a document entitled , filed , be expunged from the record.
"Materiality" is defined as any information which the examiner considers as being important to a determination of patentability of the claims.
1. A Technology Center Director decides this petition only if the information was submitted either pursuant to MPEP § 724.02 or in an information disclosure statement. However, the petition should not be granted until the application has been allowed or abandoned, or an Ex parte Quayle action has been mailed.
5. This form paragraph must be followed with one or more of form paragraphs 7.207 through 7.213.
the petition was not accompanied by the required fee under 37 CFR1.17(g).
the information that petitioner requests to expunge is considered to be material to the determination of patentability because .
In bracket 1, provide an explanation of basis for conclusion that information is material to the determination of patentability.
In bracket 1, provide explanation of basis for conclusion that information has been made public.
the petition does not contain a commitment on the part of petitioner to retain the information to be expunged for the period of any patent with regard to which such information is submitted.
In bracket 1, indicate whether any such statement was provided and, if so, explain why such statement is not clear.
In bracket 1, explain why the identification of the information requested to be expunged is not clear.
the petition does not contain a statement that the petition is being submitted by, or on behalf of, the party in interest who originally submitted the information.


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Continuation of the review of the publications devoted to using of electrolytic-plasma methods of microarc discharge oxidizing (MDO) coverings formation in electrolytes-suspensions in relation to objects of medical appointment. The main attention is given to coverings formation by the MDO method in the electrolytes-suspensions containing powders of various degree of dispersion (from nanometers to tens microns) and of the different nature (oxides, carbides, nitrides, borides, graphite, etc.). Data on the nanocomposite coverings obtained by implantation into the MDO-covering of nanoparticles of silver during modifying of a magnesium substrate are provided. It is actual because fight against bacterial infections demands development of new materials and the medical equipment with antiseptic properties, and silver' nanoparticles – a well-known antibacterial material. Additives in electrolytes for microarc oxidizing of ultradisperse carbon in the form of graphite, carbon nanotubes and diamond also have considerable impact on structure, corrosion and protective properties and tribological characteristics. Significant improvement of properties of the MDO-coverings created in electrolytes-suspensions is noted.
Necula B.S., Fratila-Apachitei L.E., Berkani A., Apachitei I., Duszczyk J. Enrichment of anodic MgO layers with Ag nanoparticles for biomedical applications // J. Mater. Science: Mater. Med. 2009. V. 20. P. 339 – 345.
Sreekanth D., Rameshbabu N. Development and characterization of MgO/hydroxyapatite composite coating on AZ31 magnesium alloy by plasma electrolytic oxidation coupled with electrophoretic deposition // Materials Letters. 2012. V. 68. P. 439 – 442.
Aliofkhazraei M., Sabour Rouhaghdam A. Fabrication of functionally gradient nanocomposite coatings by plasma electrolytic oxidation based on variable duty cycle // Applied Surface Science. 2012. V. 258. P. 2093 – 2097.
Wang Y., Jiang Z., Yao Z. Formation of titania composite coatings on carbon steel by plasma electrolytic oxidation // Applied Surface Science. 2010. V. 256. P. 5818 – 5823.
Lv G.-H., Chen H., Gu W.-C., Feng W.-R., Li L., Niu E.-W., Zhang X.-H., Yang S.-Z. Effects of graphite additives in electrolytes on the microstructure and corrosion resistance of Alumina PEO coatings // Current Applied Physics. 2009. № 9. P. 324 – 328.
Wu X., Qin W., Guo Y., Xie Z. Self-lubricative coating grown by micro-plasma oxidation on aluminum alloys in the solution of aluminate–graphite // Applied Surface Science 2008. V. 254. P. 6395 – 6599.
Wu X., Xie F., Hu Z., Wang L. Effects of additives on corrosion and wear resistance of micro-arc oxidation coatings on TiAl alloy // Trans. Nonferrous Met. Soc. China. 2010. V. 20. P. 1032 – 1036.
Lee K.M., Ko Y.G., Shin D.H.Incorporation of multi-walled carbon nanotubes into the oxide layer on a 7075 Al alloy coated by plasma electrolytic oxidation: Coating structure and corrosion properties//Current Applied Physics. 2011. V. 11. P. S55 – S59.

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The two liberal state decisions (Washington State and California), on the other hand, concerned a requirement imposed by state governments mandating institutions (including religious groups such as Churches) which provided group health insurance policies to its employees to also include coverage for abortion services.
Is an unborn child a person? The significance of this question is squarely set forth in the majority opinion of Roe v. Wade where Justice Blackmun warned that if the "suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment."
While there are several opinions as to when a fetus is recognized as a person, a recent trailblazing case from Alabama premised a holding upon Alabama's own 2018 state constitutional amendment that defined a person as "any human being from the moment of fertilization or the functional equivalent thereof." It allowed a lawsuit to proceed for the wrongful death of an unborn child. The Court permitted a man whose girlfriend ended her pregnancy after six weeks to sue for the wrongful death of his unborn child against both the manufacturer of the pill she used and against the abortion clinic that provided her with the pill. The court thus upheld an Alabama provision that recognized the legal rights of an aborted fetus and its "personhood".
But Alabama was not the first State to recognize that embryos and fetuses can be separate legal entities from the women who carry them. Twenty years earlier, another conservative state, South Carolina, in Whitner v. South Carolina recognized, in a non-abortion context, that prenatal injuries can be tortuously inflicted on a child in the womb. By recognizing the personhood of the child independent of the Mom, it affirmed the prosecution of a pregnant drug abusing mom under state child abuse laws for endangering her unborn child.
The Whitner holding is also consistent with a 2004 Federal law, the Unborn Victims of Violence Act (18 U.S.Code 1841) which effectively extends personhood status to a "child in utero at any stage of development" if the embryo is targeted, injured, or killed during the commission of a list of violent crimes. Because the statute established legal status for a fertilized egg in the context of a violent crime, thus providing personhood status to the embryo, liberal democrats offered an amendment - which was rejected - suggesting that the crime involved should be considered a second crime against the pregnant woman rather than a separate crime against the child as a "second victim."
As may be expected in the divisive debate on abortion, the legislation and court decisions of so-called liberal states radically differ from recognizing a fetus as a person. They have little difficulty enacting programs to override deeply held pro-life religious beliefs. Thus, as part of their progressive agenda concerning expanding abortion, the State of Washington required any institution, including churches and other religious institutions opposed to abortion, to pay for abortion services for its employees. The plaintiffs argued that such a law adversely affects them, forcing them to participate in an activity that is utterly inconsistent with their basic religious beliefs.
In an effort to overturn this law, the Cedar Park Assembly of G-d Church (Kirkland Washington) filed a case against both the state's Insurance Commissioner and its governor, contending that the state cannot impose its alternative belief system on the church and nor require the Church's compliance through fines and imprisonment.
Washington State has been in the forefront of the liberal push for abortion. Nearly fifty years ago, three years prior to the Supreme Court's 1973 landmark decision of Roe v. Wade, Washington State voted to establish a limited right to seek an abortion. Under that law, the woman seeking the abortion had to show consent of her spouse or guardian, had to be a resident of the state for 90 days, and have the procedure within the first four months of pregnancy. In 1991, the state's voters piggybacked the Roe v. Wade decision by strengthening the right to abortion, declaring that a woman had a right to abort any time prior to fetal viability.
The hostility toward religion and activities of religious believers in the liberal State of Washington is part of a pattern. When the Trump administration passed a regulation allowing insurers to deny contraceptive coverage based upon religious or moral objections, the attorney general of the State sued to block such regulations from coming into force. The attorney general also challenged the Trump administration's rules forbidding clinics that received federal money from providing abortion referrals and required a complete physical separation of abortion services from family planning.
Not surprisingly, the progressive state of California had previously passed a similar requirement that churches provide abortion coverage for its employees and it too was challenged. In 2014, Skyline Wesleyan Church (in La Mesa, California) filed suit against the California Department of Managed Health Care in the United States District Court for the Southern District of California. The Church argued that paying for a plan of insurance that provides for abortions in circumstances not limited to endangering the mother's life violated its ability to conduct its affairs in a manner consistent with its own religious beliefs and thus was unconstitutional. In March, 2018, the Church's claims were dismissed without prejudice. It has appealed to the Ninth Circuit Court of Appeals.
While abortion advocates like the governments of Washington and California continue to argue that Roe vs. Wade is settled law and that an unfettered right to abortion must be guaranteed, pro-life advocates continue waging a relentless educational campaign, legislative initiatives, and court actions to restrict the unfettered right to abort. In contrast to the left wing abortion extremists --- who recently went so far as to proclaim that infanticide is OK --- the majority of Americans do not seek a policy of unrestricted abortion nor do they wish to violate religious beliefs on the sacredness of life. "For more than a decade, the annual Marist poll on abortion has found that the overwhelming majority of Americans --- usually three-quarters or more --- want abortion restricted to, at most, the first three months of pregnancy." In this respect, the majority of the American people are more in tune with the rest of the world than with those Americans who seek the destruction of human life as a non-negotiable principle and thus argue for the unrestricted ability to kill an unborn child. There are only a handful of other countries permitting killing an unborn child after 20 weeks gestation. They are North Korea, Vietnam, China, Canada, Singapore, and the Netherlands.
The United States adopted a "viability standard" in its infamous 1973 Roe v. Wade decision. In that case, the Supreme Court of the United States created the trimester viability standard even though this so-called trimester rule does not originate from anything found in the text of the constitution. The Supreme Court stated that human life does not begin before "viability", and defined viability as that stage of fetal development when the infant is "potentially able to live [i.e. survive] outside the mother's womb, albeit with artificial help." Thus, prior to such viability a child's life may be terminated.
Interestingly, according to James D. Robenalt , a well-respected attorney and author, Justice Harry Blackmun, in his initial draft opinion of Roe v. Wade observed that "the Court, at that moment in time, did not have the experience or knowledge to decide when life begins." Nevertheless after the case was reargued (and after Justices Powell and Rehnquist joined the court), the court developed the trimester viability rule.
It is in response to the Roe v. Wade opinion that the argument presently rages as to the meaning of the term "viability" of preterm infants. Non-medical dictionaries inform us that "viability" is defined as the "ability or capacity to live" or having "the ability to develop as a living being" or "having a reasonable chance of success". Such definitions are not necessarily limited to babies surviving outside the womb.
Thanks to advances in the care of preterm infants, the definition of "fetal viability" continues to evolve. While the general consensus appears to be that viability outside the womb now occurs at twenty-four weeks gestation, recent studies published in the New England Journal of Medicine and Pediatrics for outcomes of preterm infants indicates that some babies can survive outside the womb at 22 weeks. Some pro-life proponents go further, pointing to research on developing an artificial placenta that would make ten-week-old embryos viable outside the womb.
In a perceptive dissent in the 1983 case of City of Akron v. Akron Center for Reproductive health, Inc. Justice Sandra Day O'Connor argued that by creating the standard of viability, Roe was on a "collision course with itself" because modern science continues to evolve and improvements in technology would continually push the point of fetal viability closer to the beginning of the pregnancy.
A movement has also begun to focus on the detection of a fetal heartbeat as "a more consistent and certain marker than viability". After all, if the existence of a heartbeat is an indication of life in end of life decisions, why wouldn't it be equally as applicable in the beginning of life decisions?
A 2017 Barna Group poll shows public support for the detection of a heartbeat as the critical factor in preventing that child from being aborted. Nearly 7 out of 10 Americans polled agreed that an unborn baby should be legally protected if a doctor is able to detect his or her heartbeat.
The emerging field of fetal medicine now permits doctors to diagnose fetal abnormalities and illnesses in the womb and to treat them in utero, increasing the child's chances of living and being born healthy. In some cases, fetal heartbeats can now be detected as early as four and a half weeks after conception using the Doppler device of echograms.
The fact that the fetus is a patient - treated separately from the mother - points to the reality that he or she is a separate living human being who should be valued as a person with legal standing.
There is of course a significant moral question involved in this issue. Thanks to the sexual revolution, and its ongoing dismantling of traditional family structures, "for the first time in recorded history, a predominantly G-dless society" has emerged. This culture of narcissism creates a prevailing passion to live for the moment and in the process devalues home and family life.
When it comes to abortion, the shared values of Judaism, Christianity, and Islam are unambiguous. They are premised upon the foundational principles of the Noahide Code which declare that prenatal life cannot be disposed of at will and that an unborn child does have personhood.
Religious believers hold to the truth that every unborn child has a soul and is beloved by G-d. Moreover, there is a clear biblical prohibition against killing an unborn child, based upon the injunction in Genesis 9:6 against shedding the blood of a person. However, even apart from biblical revelation, reason leads to the inescapable absolute truth that it is always wrong to intentionally kill an innocent human being. And, who can be more innocent that an unborn child? The opposition of our major religions to the abortion of an unborn life, except in very special circumstances, thus embodies one of the deepest norms of human society, that is, the protection of life itself.

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Appeal from the Workers' Compensation Board.
James P. Buchanan, Buchanan Buchanan, Lebanon, for appellant.
James E. Dowling, Lulich, Murphy Dowling, Indianapolis, for appellee.
The question is whether the Workers Compensation Board has authority to impose a lien on the proceeds an injured worker collects from a third party. We hold it does not.
Appellant John Sowers suffered a work-related accident in 1984 while employed by Covered Bridge Tree Service. Tri-County Telephone Co. engaged Covered Bridge for this work in order to facilitate mounting cable television lines on utility poles. The accident occurred on property owned by Halden and Rita Bodkins.
Sowers filed a workers compensation claim and received $21,000 from Covered Bridge through its workers compensation insurance carrier. Sowers also brought suit in the Clinton Circuit Court against Tri-County Telephone and the Bodkins, alleging negligence. He subsequently entered into a loan receipt agreement with the Bodkins by which they paid Sowers $60,000 and he agreed to dismiss the suit against them and pursue Tri-County. Under the agreement, any recovery from Tri-County would be used to repay the Bodkins.
After it learned about this agreement, Covered Bridge took two actions. It petitioned the Clinton Circuit Court to allow it to intervene in Sowers' suit against the Bodkins and it asked the court to grant it a lien against the $60,000 Sowers had received under the loan receipt agreement, as provided by Ind. Code Ann. § 22-3-2-13 (West 1991). Covered Bridge also petitioned the Workers Compensation Board, asking the board to impose a lien on the $60,000 and to declare that its liability for workers compensation benefits had terminated under Ind. Code Ann. § 22-3-2-13 (West 1991).
The trial court denied Covered Bridge's request for a lien, noting that the loan receipt agreement was "not complete." This was apparently a reference to the fact that the litigation against Tri-County was still ongoing; part or all of the Bodkins' $60,000 might thus still have been subject to repayment in the event Sowers collected from Tri-County. In denying the request for a lien, the trial court denied Covered Bridge (through its insurance carrier) the opportunity to intervene.
This was apparently an error. The workers compensation statute provides: "The employer may, within ninety (90) days after receipt of notice of suit from the employee or his dependants, join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection." Ind. Code Ann. § 22-3-2-13 (West 1991).
Thereafter, the trial court granted summary judgment for Tri-County Telephone. We affirmed. Sowers v. Tri-County Telephone Co. (1989), Ind., 546 N.E.2d 836. In 1990, Sowers and the Bodkins filed a stipulation for dismissal of the action upon which the loan receipt agreement was based. The trial court dismissed the case.
In May 1992, the Workers Compensation Board acted on Covered Bridge's request. It declared that Covered Bridge had no further liability for compensation and that Covered Bridge "is entitled to a lien as provided for by I.C. 22-3-2-13." Sowers appealed, and the Court of Appeals affirmed. Sowers v. Covered Bridge Tree Service (1992), Ind. App., 603 N.E.2d 165. We grant transfer.
Sowers alleges two errors by the board. First, he contends that the board has no authority to grant liens. Second, he contends that the trial court's refusal to impose a lien in 1987 is res judicata, barring the board from doing so in 1992. We think the Court of Appeals correctly decided this second issue adverse to Sowers, and we summarily affirm their disposition of the argument. Ind.Appellate Rule 11(B)(3).
As for the board's power to impose liens, we note that as an administrative body the Workers Compensation Board has only that authority conferred upon it by the statute which created it. "Its authority is not expanded by the `common law.'" Smith v. Thompson Constr. Co. (1946), 224 Ind. 565, 568, 69 N.E.2d 16, 17. The Worker's Compensation Act does require that the employer or its insurance carrier be reimbursed whenever an employee whom it has compensated is later also compensated by a third party through "any settlement award, judgment or fund." As Justice DeBruler has noted, "the Legislature obviously recognized that a judgment or a settlement by an injured employee or a deceased employee's dependents, inures to the benefit of the employer or its compensation insurance carrier in every case (except where an assignment of a small judgment to the employer has taken place) to the full extent of the employer's obligation under the Act." Ind. State Highway Comm'n v. White (1973), 259 Ind. 690, 696, 291 N.E.2d 550, 554 (citing Kough v. Utrad Indus. (1971), 150 Ind. App. 110, 275 N.E.2d 572). The employer may seek reimbursement by both lien and subrogation. Id. The statute does not, however, empower the board to impose liens in furtherance of this right to reimbursement. The statute contemplates instead that this protection shall be afforded through court order.
Accordingly, we conclude that the Workers Compensation Board's imposition of a lien exceeded its statutory jurisdiction and we set its order aside.
DeBRULER, DICKSON and KRAHULIK, JJ., concur.
GIVAN, J., dissents with separate opinion.
I respectfully dissent from the majority opinion. I believe the Court of Appeals opinion reported at 603 N.E.2d 165 is correct in every respect.
I therefore would deny transfer in this case.