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Italian and Spanish complaints on unitary patent to be rejected?
On 11 December 2012 Advocate General Yves Bot delivered his conclusions on the complaints brought by Italy and Spain against the Coucil’s decision to proceed through enhanced cooperation to the adoption of the unitary patent regulation, and proposed the CJEU to reject the complaints.
As many will remember, the discussions on the adoption of the unitary patent regulation took the turn of enhanced cooperation (a procedure contemplated by the Treaties whereby a limited group of Member States proceed to the adoption of a specific piece of legislation which will eventually have effect only in their territories, and not in those of the non participating Member States) when it became apparent that Spain and Italy could not and would never accept the proposed language regime. According to the latter, the official languages of the unitary patent would be English, French and German only and, more important, the unitary patent would have effect in all Member States without the execution of translations of the patent in the Member States’ official languages. In the summer of 2011, both Spain and Italy resorted to the CJEU requesting the annulment of the council’s decision to proceed with enhanced cooperation, on a number of grounds, the main ones being that a unitary patent cannot be established by means of enhanced cooperation under Article 20(1) TEU as such an institution would be in the exclusive competence of the EU (and not in the competence shared between the EU and the Member States), that the unanimity requirement as regards the language regimes of unitary intellectual property titles expressly provided for by Article 118 TFEU would been breached, and that the decision resulted in misuse of powers to the extent that it was a way to exclude Spain and Italy from the negotiations, rather than achieving integration between the other Member States.
Firstly, in the view of Advocate General Bot, the unitary patent would fall within the area of internal market which, unlike the area of competition, is not in the exclusive competence of the European Union. In particular, the fact that the regulation concerns the institution of a unitary patent – i.e. a measure that would by definition seem to be a prerogative of the EU and not in the competence of the Member States – would be irrelevant as what only counts is whether the subject matter (industrial property) belongs to an area of exclusive competence, and not the nature of the specific measure involved. As regards the explicit requirement of unanimity of Article 118 TFEU, Advocate General Bot resolved the issue by noting that the rules on enhanced cooperation (Articles 326 and subs. TFEU) expressly state that when unanimity is required, unanimity must be referred to participating Member States only. As regards misuse of powers, there would be no evidence that the purpose followed by the Council was that of excluding Italy and France from the discussions or forcing them to accept the proposed language regime. In general terms, the Advocate General also pointed out that the review of the CJEU on the Council’s decision to proceed with enhanced cooperation will have to be a limited review, taking account of the necessary discretion of the Council in assessing, on the basis of numerous elements, the effects of the enhanced cooperation and the various interests at stake and thereupon making political choices on matters within its own area of responsibility.
As we all know, the unitary patent package issue is extremely complex. What can be said on this specific chapter of the story is that these Advocate General conclusions, which may be correct from a dogmatic point of view, miss the opportunity to contribute to the overall discussion, really. The language issue is not “just an issue” on which Spain and Italy have diverging opinions with the rest of the Member States. It is an extremely important political issue, for obvious reasons. Furthermore, some may remember that when the Advocates General were asked to deliver an opinion on an initial project of the unified patent court, they pointed out that the project was no good exactly on the language regime, as imposing English, German or French as the language of litigation to litigants of other nationalities would have been in breach of their right of defence. Wouldn’t a similar point apply to the language regime of the unitary patent? In any event, at least from a strictly Italian perspective (but this is not a problem for the Advocates General or the CJEU, but for the Italian government) it is difficult to understand the logic of opposing, as Italy is doing – the creation of a unitary patent and, on the other hand, remaining – as Italy is also doing – in the negotiations for a unitary patent court which would have exclusive jurisdiction, besides on unitary patents, on European patents designating Italy as well….
As to whether it is likely that the CJEU will follow these AG conclusions, one may even think that the CJEU may be tempted by the opportunity of stopping a process in which the only clear thing is that nobody wants the CJEU having any form of jurisdiction on the unitary patent regulation, so much so that negotiators struggled to try and keep any substantial law provision on infringement (famous Articles 6-8) out of the regulation.
Utility models: What does "divulged" mean?
It should be Spain, not France.

matches: CJEU CJEU CJEU CJEU CJEU CJEU


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Theft of trade secrets, employee disloyalty, breaches of fiduciary duty and raiding can cause irreparable damage.
Trade secrets and other proprietary information are often among our client’s most valuable assets, and high stakes threats may come from competitors, suppliers, former employees and others. When a client faces potentially devastating harm due to unfair competition or theft of trade secrets, quick and decisive action is critical, and it is often necessary to pursue emergency injunctive relief.
If you have questions about this practice area, please contact the chair of our Non-Competition & Trade Secrets Litigation Practice Group, Maria L. Kreiter, any of the practice group members listed, or the Godfrey & Kahn lawyer with whom you normally consult.
Koziar, et al. v. McKeough Land Company, Inc.
Represent defendant in prosecution of third-party complaint against employee and his competitive company relating to employee's alleged secret competitive activity for the benefit of his company while in defendant's employ. (U.S. District Court for the Western District of Wisconsin).
BVK, Inc. v. Manuel Machado, et al.
Represent plaintiff in claims for breach of non-competition agreements, misappropriation of trade secrets, and unfair competition against former principals from whom plaintiff had purchased an advertising business in South Florida. (U.S. District Court for the Southern District of Florida).
King-Indiana Forge v. Millennium Forge, Inc.
Represent defendant manufacturing company against allegations of trade secret misappropriation and breach of confidentiality agreement relating to the development of an axle spindle manufacturing process. (U.S. District Court for the Southern District of Indiana).
GRM Corporation v. Miniature Precision Components, Inc.
Represent defendant automotive manufacturer against allegations of trade secret misappropriation claims relating to the development of a manufacturing process for automotive components, obtaining dismissal of trade secret misappropriation claim. (U.S. District Court for the Eastern District of Michigan).
Industrial Roofing Services Inc., et al. vs. Randy J. Marquardt, et al.
Represent several defendants in lawsuit alleging unfair competition, breach of non-compete clauses and theft of trade secrets, relating to the formation of a competitive roofing business, obtaining a complete dismissal of all claims against the defendants. (State of Wisconsin Circuit Court).
Terra Nova, Inc. v. Gale Smith and Roscor Corp.
Represent defendant employer against claims of trade secret misappropriation relating to hiring of plaintiff's former employee, obtaining denial of plaintiff's request for a temporary injunction and achieving dismissal of employer from the lawsuit. (State of Wisconsin Circuit Court).
Represent plaintiff-employer in prosecuting misappropriation of trade secret claim against former employee who, after obtaining plaintiff's confidential marketing and business development information, left to join a competitive company. (State of Wisconsin Circuit Court).
Lead counsel for plaintiff in prosecution of claims for misappropriation of trade secrets and breach of duty of loyalty arising from alleged use of bidding information by former employee for a competitor. (State of Wisconsin Circuit Court).
JBM Patrol and Protection Corp. v. Oestreich, et al.
Lead counsel for plaintiff security agency in prosecuting misappropriation of trade secrets claim against former employee who allegedly took highly sensitive client security information. (State of Wisconsin Circuit Court).
Lead counsel for German licensor in patent licensing antitrust case in which dismissal obtained on basis of the United States Supreme Court's decision in Mitsubishi Motor Corp. v. Soler Chrysler Plymouth, Inc. Successfully represented client in arbitration of antitrust claims before Zürich Chamber of Commerce (ZCC No. 202/1992).
Lead counsel for Unilever subsidiary (Good Humor) in international trademark licensing dispute. 810 F. Supp. 1001 (E. D. Wis. 1992). Obtained summary judgment dismissing bulk of licensee's claims leading to favorable settlement.
Manpower Inc. v. Manpower Unternehmens-und Personalberatung Ges.m.b.H.
Lead American counsel for Claimant in licensing/franchise dispute with Austrian joint venture partner in arbitration before International Arbitral Centre of the Federal Economic Chamber (Vienna). All three Tribunal awards were in favor of Claimant, including grant of injunctive relief and award of damages of $1.8 million. (SCH-4311/MAG). Austrian Supreme Court upheld the awards on April 26, 2006 (Ob 236/05 i).
Obtained $1.1 million recovery for Rexnord after hearings before Iran-U.S. Claims Tribunal (The Hague) (first $1 million Tribunal award) (Case No. 132).
Bostrom Seating Inc. (USA) v. JMH Bostrom Europe Ltd.
(United Kingdom): Obtained favorable settlement for client in this international licensing dispute after initial hearings in ICC arbitration. (1987-1989) (6035/BGD).
Chr. Hansen v. CK Witco Corp. n/k/a Crompton Corp.
Obtained seven-figure settlement for U.S. subsidiary of Danish company on eve of hearings in dispute arising out of breaches of representations and warranties in stock purchase agreement as to FDA and environmental compliance. (Amer. Arb. Assn. Case No. 13E1810010600).
FTC v. Imperial Chemical Industries, Ltd.
Helped successfully defend ICI's acquisition of then New York Stock Exchange company, Atlas Chemical Industries, Inc., from §7 Clayton Act attack by FTC and negotiate consent decree.
Lead counsel for a Wisconsin corporation in a lawsuit filed by a French corporation involving goods supplied for China and diverted to Iran. Obtained summary judgment nullifying a contract due to violation of United States embargo laws relating to Iran.
Automatan, Inc. v. CUIR, S.A.
Obtained favorable settlement for a French corporation resisting enforcement of an arbitration award rendered pursuant to the Hague Convention on public policy grounds.

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§ 428-1 Definitions; word usage.
§ 428-3 Application for license.
§ 428-5 Duration of sale.
§ 428-6 Type of sale limited by license.
§ 428-7 Sale of goods described in inventory.
§ 428-8 Surrender of other licenses.
§ 428-12 Revocation of license.
§ 428-13 Notice of hearing for revocation.
§ 428-14 Suspension for probable cause.
§ 428-18 Heirs, devisees and legatees right to licenses.
§ 428-19 Granting of license restricted.
§ 428-20 License limited to single place of business.
§ 428-22 Personal property tax to be paid.
§ 428-23 Violations and penalties.
§ 428-25 Flea market restrictions.
§ 428-26 Garage and house sales.
§ 428-27 Conclusion of sale; use of Township premises prohibited.
§ 428-29 Violations and penalties.
Auctions and auctioneers — See Ch. 173.
Christmas trees — See Ch. 228.
Junk dealers — See Ch. 324.
Word usage. Where not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
The Township Clerk of the Township of Union in the County of Union.
Any and all means of conveying, to the public, notice of sale or notice of intention to conduct a sale, whether by word of mouth, letter, newspaper advertisement, magazine advertisement, handbill, written or printed notice, printed display, billboard display or poster, whether in or away from the business location, radio announcement and any and all other means, oral or written.
Shall not be limited to the sale or an offer to sell, to the public, goods, wares and merchandise of any and all kinds and description on hand and in stock in connection with a declared purpose, as set forth by advertising, on the part of the seller that such sale is anticipatory to the termination, closing, liquidation, revision, windup, discontinuance, conclusion or abandonment of the business in connection with such sale. It shall also include any sale advertised to be an adjustment sale, creditor's sale, executor's sale, administrator's sale, insolvent sale, insurance salvage sale, mortgage sale, assignee's sale, adjuster's sale, receiver's sale, loss-of-lease sale, wholesaler's closeout sale, creditor's committee sale, forced-out-of business sale, removal sale and any and all sales advertised in such manner as to reasonably convey to the public that upon the disposal of the stock of goods on hand, the business will cease and be discontinued.
The Township of Union in the County of Union.
The Township Committee of the Township of Union in the County of Union.
It shall be unlawful for any person to publish, announce or conduct any sale of the type or kind herein defined without first obtaining a license therefor in compliance with the provisions of this article.
The true name and address of the person from whom the owner purchased the goods to be sold and the price therefor and, if not purchased, the manner of such acquisition.
A full and complete statement of the facts in regard to the sale, including the reason for the urgent and expeditious disposal of goods thereby, and the manner in which the sale will be conducted.
The means to be employed in advertising said sale, together with the proposed content of any advertisement.
A complete and detailed inventory of the goods to be sold at said sale as disclosed by the applicant's records. Said inventory shall be attached to and become part of the application.
Any applicant for a license hereunder shall submit to the Township Clerk with his application a license fee of $125.
The license shall authorize the sale described in the application for a period of not more than 90 consecutive days following the issuance thereof. Subject license may not be renewed.
The license shall authorize only the type of sale described in the application at the location named therein.
The license shall authorize only the sale of the goods described in the inventory attached to the application.
Upon being issued a license hereunder for a going-out-of-business sale, the licensee shall surrender to the Township Clerk all other business licenses he may hold at that time applicable to the location and goods covered by the application for a license under this article.
Any license provided for herein shall not be assignable or transferable.
Make no additions whatsoever during the period of the license sale to the stock of goods set forth in the inventory attached to the application for license.
Keep available at the place of sale a duplicate copy of the inventory submitted with the application and shall present such duplicate to inspecting officials upon request.
Keep any other goods separate and apart from the goods listed in the filed inventory as being objects of sale and shall make such distinction clear to the public by placing tags on all inventoried goods in and about the place of sale, apprising the public of the status of all such goods.
Display the license in a prominent place on the window of the premises where the sale is to be held so that it is clearly visible from the exterior of said premises.
Suitable books and records shall be kept at the place of sale and shall be made available for inspection by the Township Committee or its authorized representative.
It shall be unlawful to sell, offer or expose for sale at any such sale or to list on the inventory required by § 428-3 any stock which is not the stock of the store or other place, the business of which is to be closed out by such sale for which a license has been granted, to replenish or add to such stock for the purpose of disposal at such sale, or to fail, neglect or refuse to keep accurate and true records of the initial stock, stock sold and stock on hand.
Any fraud, misrepresentation or false statement contained in the application.
Any fraud, misrepresentation or false statement made as to the inventory, stock sold or stock on hand.
Conviction of the licensee of any felony or of a misdemeanor involving moral turpitude.
Notice of hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of the complaint and the time and place of the hearing. Such notice shall be mailed, postage prepaid, to the licensee, at his last known address, at least five days prior to the date set for the hearing.
A license may be suspended for not more than five days by the Township Committee upon probable cause being shown that the license should be revoked.
The Township Committee shall hold such hearings and make such investigation as may be necessary to carry out the provisions and intent of this article.
The provisions of this article are intended to augment and be in addition to the provisions of other applicable licensing ordinances of the Township. Where this article imposes a greater restriction upon persons, premises, businesses or other practices than is imposed by any other licensing ordinance of the Township of Union, then this article shall control.
Upon the death of a person doing business in this Township his or her heirs, devisees or legatees shall have the right to apply any time for a license hereunder.
Any person who has held a sale, as regulated hereunder, at the location stated in the application, within one year last past from the date of such application, shall not be granted a license.
Where a person applying for a license hereunder operates more than one place of business, the license issued shall apply only to the one store or branch specified in the application, and no other store or branch shall advertise or represent that it is cooperating with it, or in any way participating in the license sale, nor shall the store or branch conducting the license sale advertise or represent that any other store or branch is cooperating with it or participating in any way in the licensed sale.
Persons conducting a sale of the type regulated herein on the effective date of this article, unless such sale is continued for a period of more than 30 days from and after such effective date, in which event, such person, at the lapse of the said thirty-day period, shall comply with the provisions of this article.
Any publisher of a newspaper, magazine or other publication, who publishes in good faith any advertisement, without knowledge of its false, deceptive or misleading character, or without knowledge that the provisions of this article have not been complied with.
No license authorized under this article shall be issued unless personal property taxes are paid to the date of the application for said license.
Any person who violates any of the provisions of this article shall, upon conviction thereof, be punished by one or more of the following: imprisonment in the county jail or in any other place provided by the municipality for the detention of prisoners for any term not exceeding 90 days or by a fine not exceeding $1,250 or by a period of community service not exceeding 90 days, to become effective on the effective date of this section. Each day that a violation shall continue shall constitute a separate offense.
A sale of items of tangible personal property wherein on one location there are multiple vendors who have paid a fee for the privilege of occupying the space allotted to each such vendor for the purpose of displaying personal property.
Includes but shall not be limited to lawn sales, rummage sales and any similar casual sale of tangible personal property which is advertised by any means whereby the public at large is or can be made aware of said sale.
Includes the sale caused by the removal of the householder from the premises whereby said householder intends to sell, by lot or in bulk, a portion or the entire contents of the personal property located within said household.
Each organization authorized to conduct a flea market in accordance with this section shall file an application with the Township Clerk at least 60 days prior to the date of the commencement of such flea market sale.
Name of organization conducting said sale.
Name and address of owner of the property upon which said flea market sale is to be conducted.
Written consent of owner, if applicant is other than owner.
Street address or tax map reference of location at which said flea market sale is to be conducted.
Date, if any, of prior sales within three years prior to date of application.
Whether or not sale will be held indoors or outdoors.
Date or dates of sale.
Address of office or other place of operation within the Township of Union.
Editor's Note: Former Subsection C, which provided a fee for conducting a flea market, as amended 12-13-1988 by Ord. No. 3997, was repealed 1-22-1991 by Ord. No. 4130.
No more than two permits to any one such organization shall be authorized in any one calendar year.
Such flea market sales shall be limited to two consecutive calendar days and shall be conducted only between the hours of 9:00 a.m. and 5:00 p.m. Three consecutive hours of operation shall constitute one calendar day. Permittees shall be allowed a maximum of two rain dates; provided, however, that after three consecutive hours of operation, a sale interrupted by rain shall not entitle the permittee to a rain date.
The permit for the conducting of such sale must be prominently displayed upon the premises upon which the sale is conducted throughout the entire period of the sale.
Name of person applying for permit.
Name and address of the owner of the property on which said sale is to be conducted.
Written consent of the owner of the property upon which the sale is to be conducted if the applicant is not the owner.
Location at which the sale is to be conducted, giving the street address or tax atlas reference.
Date of any past sale within a three-year period, preceding the date of the proposed sale.
General description of the type of goods to be sold, including a written statement as to whether or not any of the merchandise to be sold was purchased by the applicant for the purpose of resale, resale of such purchased goods being hereby prohibited.
Whether or not the sale will be held indoors or outdoors.
Hours of sale shall be between 9:00 a.m. and 5:00 p.m. only.
Garage sales shall be authorized only for the day applied for on the application with the following day being authorized as a rain date, excluding Sunday.
House sales shall be authorized for two consecutive or nonconsecutive days, provided that the second day is not scheduled for more than 10 days subsequent to the first day.
No items of merchandise may be displayed beyond 10 feet from the face of a garage connected to the dwelling house. Merchandise may be displayed in a driveway, not, however, beyond the front line of the dwelling house, and merchandise may likewise be displayed in the rear yard of said premises for a depth of 10 feet from the rear wall of said dwelling house.
The permit authorized under this article must be prominently displayed on the premises upon which the sale is being conducted.
Only two permits per calendar year may be issued to any one applicant or for any one location.
Sunday sales are prohibited, except in the case of persons having philosophical religious convictions which are in conflict with this provision. In such cases, such persons may conduct garage sales on Sundays, in place of the Sabbath Day observed by such persons.
No signs advertising said sale are authorized, nor may the same be posted anywhere within the Township or anywhere on the premises upon which the sale shall be held; provided, however, that the permit issued pursuant to this article shall constitute a sign which shall be posted on the front wall of the dwelling house or garage.
Any sale of any item of merchandise at any garage sale or house sale must comply with all appropriate provisions of the law with reference to any such sales, including but not limited to N.J.S.A. 26:10-1 et seq.
No more than two garage sales shall be authorized at any one time on the same street.
Notwithstanding the foregoing, the permit fee shall be waived for senior citizens of the Township of Union, aged 62 and over, upon proof of age and residency.
Said fees shall also be waived for disabled and handicapped persons of the Township of Union. "Handicapped persons" shall be defined as those persons who qualify under New Jersey motor vehicle statutes. "Disabled persons" shall be defined as those persons who qualify under federal, state, county or local laws and regulations.
Said fees shall be waived for all veterans.
Immediately upon the conclusion of any sale authorized by this article, the permittee shall be obliged, within 24 hours after the conclusion of said sale, to clean the outside of said premises and remove all unsold merchandise therefrom and restore the same to the condition in which it existed prior to said sale.
Garage sales and flea markets as defined herein and authorized by this article are prohibited upon Township-owned premises, not otherwise leased to third parties by the Township.
The selling or advertising for sale of an item or items of personal property, which are specifically described in the advertisement and which separate items do not exceed five in number and which are not displayed outside the premises.
Any person violating any of the provisions of this article shall, upon conviction thereof, be subject to one or more of the following: imprisonment in the county jail or in any other place provided by the municipality for the detention of prisoners for any term not exceeding 90 days or by a fine not exceeding $1,250 or by a period of community service not exceeding 90 days, to become effective on the effective date of this section.


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We report excellent electrocatalytic performance by AlFe2B2 in the oxygen-evolution reaction (OER). The inexpensive catalytic material, prepared simply by arc-melting followed by ball-milling, exhibits high stability and sustained catalytic performance under alkaline conditions. The overpotential value of 0.24 V observed at the current density of 10 mA cm−2 remained constant for at least 10 days. Electron microscopy and electron energy loss spectroscopy performed on the initial ball-milled material and on the material activated under electrocatalytic conditions suggest that the catalytic mechanism involves partial leaching of Al from the layered structure of AlFe2B2 and the formation of Fe3O4 nanoclusters on the exposed [Fe2B2] layers. Thus, the AlFe2B2 structure serves as a robust supporting material and, more importantly, as a pre-catalyst to the in situ formed active electrocatalytic sites. Comparative electrochemical measurements demonstrate that the electrocatalytic performance of the AlFe2B2-supported Fe3O4 nanoclusters substantially exceeds the results obtained with unsupported nanoparticles of Fe3O4, FeB, or such benchmark OER catalysts as IrO2 or RuO2. The excellent catalytic performance and long-term stability of this system suggests that AlFe2B2 can serve as a promising and inexpensive OER electrocatalyst.
Fast depletion of fossil fuels drives extensive research efforts aimed at the development of renewable energy sources.1 Solar-powered fuel cells are one of the desired clean-energy technologies, which rely on the utilization of sun and water as renewable energy sources.2 Water electrolysis can be divided into two half reactions, hydrogen evolution reaction (HER) and oxygen evolution reaction (OER). In practice, the overall voltage required for electrocatalytic water splitting is substantially larger than the minimum thermodynamic value of 1.23 V. The excess voltage, known as overpotential, is due to various kinetic factors involved in the HER and OER processes.3 The goal of electrocatalysis is to decrease the overpotential and afford more energy-efficient water splitting.
The extensive several-decade body of research into the HER and OER electrocatalysts4 suggests some important criteria for the development of new catalytic systems: (1) for practical implementation, the catalyst should be heterogeneous; (2) to offer a viable alternative to fossil fuels, the catalyst should be inexpensive and composed of earth-abundant elements; (3) the catalyst should exhibit long-term chemical stability under extreme catalytic conditions; (4) the catalyst should combine active catalytic sites with a robust support for uninterrupted performance with high turnover frequency (TOF).
An alternative strategy for achieving a supported catalyst with high surface area uses “multicomponent” materials, in which different parts of the structure can serve as the active catalytic sites and the inert conductive support. Such architecture allows the implementation of the active site separation concept, which has been shown to be effective in a number of intermetallic catalysts. As an example of this strategy, AlMoB has been recently reported as an efficient HER electrocatalyst.7 The material showed high stability under acidic conditions. In addition, it was found that the catalytic performance improved when the material was pre-etched under basic conditions. In alkaline solution, the Al atoms sandwiched between the MoB layers are etched away to open up the catalytically active transition metal sites that subsequently catalyze HER.8 The underlying structure of AlMoB thus acts as a robust conductive support for the catalytically active sites separated by the partially etched Al layers.
The crystal structure of AlMoB (Fig. 1a) has attracted our attention due to its similarity with the structure of another ternary intermetallic compound, AlFe2B2 (Fig. 1b), which we earlier explored as a promising magnetocaloric material.9 We have hypothesized that similar Al-etching procedure can affect the layered structure of AlFe2B2 by exposing the [Fe2B2] layers for the subsequent electrocatalytic reaction. Indeed, a theoretical analysis presented herein demonstrates that the bonding between the Al and [Fe2B2] layers in this structure is substantially weaker than the Fe–B and B–B bonds within the [Fe2B2] layer. We have also recently reported in situ formation of highly active nickel oxide nanocluster OER electrocatalysts from nickel phosphide scaffolds.10 By analogy with the binary Ni–P, we hypothesized that [Fe2B2] layers could serve as an interesting precursor for Fe-based OER electrocatalyst. This hypothesis is followed by an experimental demonstration that AlFe2B2 affords efficient OER with a low overpotential and remarkably high stability of the electrocatalyst. A comprehensive investigation of the electrocatalytic process reveals that AlFe2B2 acts as a robust scaffold for in situ formation of catalytically active Fe3O4 nanoclusters on the surface of the [Fe2B2] layers. The excellent catalytic performance and long-term stability coupled to the convenient synthesis suggest that this system can serve as a promising and inexpensive OER electrocatalyst.
Fig. 1 The crystal structures of AlMoB (a) and AlFe2B2 (b).
All manipulations during sample preparation were carried out in an Ar-filled dry box (content of O2 < 0.5 ppm). Powders of aluminum (99.97%), iron (98%), crystalline boron (98%), and iron boride (FeB, 98%) were obtained from Alfa Aesar. The iron powder was additionally purified by heating in a flow of H2 gas at 500 °C for 5 h. The other materials were used as received.
AlFe2B2 was synthesized as previously reported.9 Starting materials were mixed in a Al : Fe : B = 3 : 2 : 2 ratio (a total weight of 0.35 g) and pressed into a pellet, which was arc-melted in an argon-filled glovebox. The pellet was re-melted 4 times to achieve uniform melting. To maximize the sample's homogeneity, it was sealed in a silica tube under vacuum (∼10−5 Torr) and annealed at 900 °C for 1 week. The annealed sample was ground and subjected to powder X-ray diffraction (PXRD), which revealed AlFe2B2 as the major phase and Al13F4 as a minor byproduct. The latter was removed by treating the sample for 3–5 min with dilute (1 : 1 v/v) aqueous solution of HCl.
The phase-pure sample of AlFe2B2 was ball-milled at 1725 rpm for 1 h in an 8000 M High-Energy Mixer/Mill (SPEX), using a stainless-steel ball-milling set. The milling was carried out under Ar to minimize surface oxidation. The PXRD of the ball-milled sample revealed broadening of diffraction peaks, in accord with the decreased particle size. No traces of impurity phases were observed, except for a minor peak of Al2O3 (which will be dissolved under basic conditions of electrochemical testing). Specific surface areas (SBET) of the as-prepared AlFe2B2 and reference catalysts were estimated using the Brunauer–Emmett–Teller (BET) model with the Autosorb iQ2 analyzer (Quantachrome). The ball-milled sample of AlFe2B2 was converted into an electrocatalyst ink by ultrasonically dispersing 5 mg of the material in 1000 μL of ethanol containing 50 μL of a Nafion solution (Sigma-Aldrich, 5 wt%). To prepare an electrode for catalytic tests, 200 μL of the ink was loaded on a Ni foam (Heze Jiaotong, 110 pores per inch, 0.3 mm thick, cleaned by ultrasonication in 6 M HCl) with an exposed area of 1.0 cm2, leading to a loading density of ∼1.0 mg cm−2. The electrode was then allowed to dry naturally under ambient conditions.
Electrochemical measurements were conducted at 25 °C, using a Biologic VMP-3 potentiostat/galvanostat. The OER performance of various catalysts was evaluated in a three-electrode system using 1.0 M KOH electrolyte, in which the catalytic electrode, the saturated calomel electrode (SCE), and a Pt wire served as the working, reference, and counter electrodes, respectively. Prior to each measurement, the SCE electrode was calibrated in Ar/H2-saturated 0.5 M H2SO4 solution, using a clean Pt wire as the working electrode. Unless stated otherwise, all potentials reported in this work were converted to a reversible hydrogen electrode (RHE) reference scale according to the following equation: ERHE = ESCE + 0.059pH + 0.241. An iR-correction of 85% was applied in the polarization experiments to compensate for the voltage drop between the reference and working electrodes, which was evaluated by a single-point high-frequency impedance measurement.
OER anodic polarization curves were recorded with a scan rate of 5 mV s−1 in the range from 1.0 to 1.7 V vs. RHE. Impedance spectroscopy measurements were carried out at the overpotential of 0.26 V in the frequency range from 105 to 10−2 Hz with a 10 mV sinusoidal perturbation. The catalytic stability of the electrodes was evaluated as a function of time at constant current density of 10 mA cm−2.
The O2 TOFs for the electrocatalysts were estimated as TOF (s−1) = (jA)/(4Fn), where j is the current density (A cm−2) at a given overpotential, A is the surface area of the electrode (1.0 cm2), F is the Faraday constant (96 485 C mol−1), and n is the amount of metal in the electrode (mol), determined as n = 1.0 mg cm−2 × 1.0 cm2 × 10−3/metal molar mass. We assumed that all of the metal ions were catalytically active and thereby calculated their TOFs. Notably, some metal sites were indeed inaccessible during OER, and thus the calculated TOFs represent the minimum possible values.
The transmission electron microscopy (TEM), high-angle annular dark-field scanning TEM (HAADF-STEM), electron diffraction (ED), energy-dispersive X-ray spectroscopy (STEM-EDX) and electron energy loss spectroscopy (STEM-EELS) in STEM mode studies were performed using a JEM-ARM200F microscope (cold field-emission gun, probe and image aberration corrected, equipped with CENTURIO EDX detector and GIF Quantum). TEM samples were prepared by crushing a sample in an agate mortar in ethanol and depositing the obtained suspension on a Cu carbon holey grid.
Density-functional band structure calculations and crystal orbital Hamilton population (COHP) analysis12 were performed using the tight binding-linear muffin tin orbitals-atomic sphere approximation (TB-LMTO-ASA) software.13 Published structural parameters of AlFe2B2 were used14 with no theoretical geometry optimization. Fe 4s, 3d, and 4p, Al 3s, 3p, and 3d, and B 2s, 2p, and 3d states were treated as valence orbitals (with Al and B 3d states downfolded). No additional empty spheres were needed to reach an overlap volume of 8.731%. A 23 × 6 × 23 k-point mesh was used to generate COHP curves for five shortest interatomic contacts.
As shown by us previously, phase-pure AlFe2B2 can be synthesized by means of arc-melting followed by homogenizing annealing at 900 °C. A short treatment of the annealed sample with diluted HCl is required to eliminate the minor Al13Fe4 impurity. The as-prepared AlFe2B2 was ball-milled for 1 h to maximize the surface area of the material. The PXRD pattern of the ball-milled sample revealed that the phase composition of the material had been preserved after ball-milling, although a minor peak observed at 2θ = 37° suggests the appearance of Al2O3 byproduct. The impurity, however, was readily dissolved under the electrochemical testing conditions (pH = 14) used in this work. The PXRD analysis also revealed broadening of diffraction lines in the pattern of the ball-milled sample as compared to the bulk sample (Fig. 2). Analysis of the line broadening effect was carried out using the Scherrer equation,15 which relates the average particle size (D) to the line broadening (Δ(2θ)) at various diffraction angles (θ): D = Kλ/[Δ(2θ) × cos θ]. The shape factor K was set to 0.9, and Si powder was used as a standard to evaluate the intrinsic line broadening of the diffractometer. This analysis led to D ≈ 25 nm, indicating the substantial decrease in the crystallite size as compared to the bulk sample, as desired for electrocatalytic studies. This estimate, however, does not account for the line broadening due to strain introduced by ball-milling. Thus, it provides only the lower bound for the particle size, as will be demonstrated below by electron microscopy.
Fig. 2 PXRD patterns for the samples of AlFe2B2 obtained after arc-melting and homogenizing annealing (a) and after ball-milling under Ar atmosphere for 1 h (b). The minor Al2O3 impurity peak is labeled with an asterisk. The calculated PXRD pattern of AlFe2B2 is shown for comparison (c).
In our previous work on bulk AlFe2B2, we observed that this material also dissolves in dilute HCl (although slower than the Al13Fe4 impurity). Given the much higher stability of the binary FeB under acidic conditions,16 one might assume that the reactivity of AlFe2B2 toward the acid is initiated by leaching of Al from the space between the [Fe2B2] layers. This assumption is also supported by the fact that the Al–Fe (2.622 Å) and Al–B (2.430 Å) bond lengths are substantially longer than the bonds within the [Fe2B2] layer (B–B at 1.605 Å and Fe–B at 2.048 and 2.199 Å).
To evaluate more quantitatively the strengths of the bonds in the AlFe2B2 structure, we carried out quantum-mechanical calculations to obtain the COHP curves for each of the aforementioned interatomic contacts. Integrating the –COHP curves, shown in Fig. 3, up to the Fermi energy (EF) gives –ICOHP (Table 1), an energy value which correlates with the bond strength.12 The positive values of –ICOHP represent a negative energy term, which indicates an overall stabilizing interaction, while the negative values indicate destabilizing interaction. As expected, the B–B bonds are the strongest in the structure, while the two crystallographically unique Fe–B contacts are moderately strong. The weakest interactions are observed for the Al–Fe and Al–B contacts. As will be shown below, this finding agrees not only with our chemical intuition, but also with experimental results.
Fig. 3 Calculated –COHP curves for the five shortest interatomic contacts in the crystal structure of AlFe2B2.
The nanoparticles of AlFe2B2 obtained by ball-milling were converted into a catalyst ink and loaded on a Ni foam current collector. This electrocatalytic assembly was evaluated in 1 M KOH electrolyte, revealing high OER activity of the AlFe2B2 electrocatalyst. Specifically, the current densities of 10, 100, and 300 mA cm−2 were achieved at remarkably low overpotentials (η) of only 240, 290, and 320 mV, respectively. For comparison, we evaluated (under the same conditions) the bare Ni foam and four other control catalysts, FeB (SBET = 43 m2 g−1), Fe3O4 (SBET = 74 m2 g−1),17 RuO2 (SBET = 11 m2 g−1), and IrO2 (SBET = 2 m2 g−1). As can be seen from Fig. 4a, when considering the activity based on the current density by electrode surface area, AlFe2B2 exhibits substantially lower overpotentials at all current densities, outperforming all the reference systems. Further comparisons of the catalytic performance normalized by SBET18 shows that AlFe2B2 demonstrates the strongest catalytic current on anodic polarization, and only IrO2 has higher activity than the AlFe2B2-based anode (Fig. S1†).
Fig. 4 Performance of different OER electrocatalysts in a 1 M KOH electrolyte solution: (a) the current density vs. applied potential curves, with the inset showing an enlarged low-current part of the plot. (b) The Tafel plot, showing the overpotential as a function of logarithmic current density. The numbers indicate slopes of the corresponding linear fits. (c) The Nyquist complex-plane impedance plot with the equivalent electrical circuit model shown in the inset. (d) The TOF plot at overpotentials of 0.25, 0.30, and 0.35 V. (e) The chronopotentiometric plot of the performance of AlFe2B2 electrocatalyst at the constant current density of 10 mA cm−2.
The kinetic behavior of the electrocatalysts was compared by means of Tafel and Nyquist plots. The Tafel plot relates the rate of the electrochemical reaction to the overpotential by revealing the dependence of η on the logarithmic current density: η = TS log(j/j0). The Tafel slope (TS) derived from this dependence indicates how susceptible the reaction rate is to changes in the applied voltage. The Tafel plots in Fig. 4b show that AlFe2B2 exhibits not only the lowest overpotential per geometric area but also the smallest TS value in comparison to the reference electrocatalysts. An impressive TS value of 42 mV dec−1, determined for AlFe2B2, indicates the fastest OER rate in the 1 M KOH electrolyte. The Nyquist plot, obtained from the AC impedance measurements, also demonstrates a significantly smaller charge-transfer resistance for AlFe2B2 as compared to the reference electrocatalysts (Fig. 4c).
The O2 TOFs were examined at various overpotentials (Fig. 4d). AlFe2B2 shows a TOF value of 0.12 s−1 at the overpotential of 350 mV, at which the OER benchmarks RuO2 and IrO2 achieved substantially lower TOFs values of 0.05 s−1 and 0.04 s−1, respectively.
Lastly, we observed excellent stability of the AlFe2B2 electrocatalyst under the harsh OER conditions. More specifically, under the constant current density of 10 mA cm−2, in the 1 M KOH electrolyte solution, AlFe2B2 maintained an essentially constant overpotential of 240 mV for over a 10 day period. Overall, our electrochemical studies establish AlFe2B2 as a highly active and inexpensive OER electrocatalyst with the remarkable long-term stability.
Upon examination of the catalyst's stability plot, we also noticed an obvious decrease in the overpotential value in the very beginning of the reaction (Fig. 4e). To further explore this feature, we carried out several electrocatalytic cycles and monitored the current–potential curves, which revealed that the electrocatalyst was becoming more active, exhibiting progressively lower overpotential upon the initial cycling (Fig. 5). As can be seen from these results, the overpotential appeared to stabilize after the first 20 cycles. To obtain a better insight into the origin of such behavior, we examined both the initial and activated catalysts by means of electron microscopy.
Fig. 5 The current density vs. applied potential curves recorded over the AlFe2B2/Ni-foam electrocatalyst after OER catalytic cycles in a 1 M KOH electrolyte solution.
The TEM investigation showed that the original ball-milled sample contained particles of different sizes, ranging from ∼30 nm to ∼500 nm (Fig. 6a). The EDX spectroscopy showed the Al : Fe ratio of approximately 1 : 2, in agreement with the composition of the bulk material. The elemental mapping also showed the presence of a thin oxide layer (Fig. 6b), which agrees with the minor oxidation and the presence of a peak that belongs to Al2O3 in the PXRD pattern of the ball-milled material (Fig. 2b).
Fig. 6 HAADF-STEM images and the corresponding STEM-EDX elemental maps of AlFe2B2 particles before (a, b) and after (c) electrocatalytic activation in a 1 M KOH solution. The growth of the shell structure in the electrocatalytically activated sample can be clearly seen by comparing the EDX elemental maps shown in panels (b) and (c), where the element distribution is shown with green (Fe), red (Al), and blue (O) colors. Panel (d) shows the EELS mapping of the electrocatalytically activated sample. In the grayscale panels, lighter areas indicate a higher content of the corresponding element. The colored overlay shows the EELS signals for the B-K (green), Fe-L2,3 (red), and O-K (blue) edges.
The activated sample, obtained after 20 initial OER cycles, appeared much more heterogeneous, which made its analysis difficult. Nevertheless, the overall appearance of this sample clearly revealed the formation of a core–shell structure. In comparison to the sample before the catalysis (Fig. 6b), the EDX elemental mapping showed the presence of a thick layer of iron oxide on the surface of the catalytically activated AlFe2B2 particles (Fig. 6c). The EDX elemental mapping also showed that the Al : Fe ratio had drastically decreased, from 1 : 2 in the initial catalyst to 1 : 6 in the activated one. This finding suggests that Al is partially leached out of the layered AlFe2B2 structure under the harsh basic conditions of electrocatalysis, a hypothesis supported by our theoretical analysis of the relative bond strengths (Table 1).
EELS was used to probe the changes in the nature of the Fe sites during OER and to confirm the presence and localization of boron, which is difficult to detect by EDX spectroscopy. Importantly, we observed that B was consistently present in the core–shell structures (Fig. 6d), along with Fe. Recording the combined EELS elemental map required the choice of a specific energy window to monitor the presence of different elements. Nevertheless, the EELS mapping observed in Fig. 6d clearly shows the appearance of the AlFe2B2 nanoparticles (seen as the light yellow-green colored area) shelled with a layer of iron oxide (seen as a pink shell due to the combination of red (Fe) and blue (O) colors). Furthermore, a careful look at the figure also allows us to distinguish yellow-greenish areas hidden underneath the pink areas, in agreement with the in situ formation of the iron oxide layer around the AlFe2B2 particles.
Taking into account the EDX results and combining them with the EELS data, we can conclude that these particles, indeed, consist of the AlFe2B2 core shelled with a layer of iron oxide. Analysis of the EELS data indicates that prior to catalytic testing the AlFe2B2 particles mainly contain Fe0 sites, with minor Fe3+ impurities. After activation, the thick oxide shell appears to be magnetite, Fe3O4. This phase can be distinguished from α-Fe2O3 and FeO by examining the iron L-edge and oxygen K-edge EELS fine structure observed in the energy regions around 705–725 eV and 530–570 eV, respectively (Fig. 7). In particular, the Fe L3 peak is shifted to lower energies as compared to the peak of α-Fe2O3, while the Fe L2 peak is shifted to higher energies as compared to the peak of FeO. The formation of Fe3O4 nanoparticles was also confirmed by selected area ED patterns and HRTEM imaging (Fig. 8). The ED patterns were perfectly indexed using the unit cell parameters of Fe3O4, while the Fourier transform (FT) of the HRTEM image produced an identical ring diffraction pattern with the pronounced (111) spots characteristic of Fe3O4.
Fig. 7 Fe-L2,3 edge (left) and O-K edge (right) EELS spectra of AlFe2B2 particles before and after electrocatalytic activation. The reference spectra of α-Fe2O3, Fe3O4, and FeO are shown for comparison.
Fig. 8 HRTEM image of the activated electrocatalyst and the corresponding ED and FT ring patterns, which were indexed with the unit cell parameters of Fe3O4. The characteristic (111) spots observed in the FT pattern are absent in the ED pattern due to preferential orientation of the nanoparticles.
where “FeB” stands for the modified AlFe2B2 with partially etched Al layers.
These considerations notwithstanding, our studies conclusively show that AlFe2B2 acts as a pre-catalyst, with the [Fe2B2] layers providing a robust support for the in situ generated Fe3O4 nanoclusters, which act as active sites for the OER catalysis (Fig. 9). A comparison with other non-oxide OER catalysts (borides and phosphides)10a,18 reveals a remarkably stable and efficient performance of the catalytic system developed in this work (Fig. 10).
Fig. 9 Hypothesized structure of the electrocatalyst formed from the AlFe2B2 scaffold. The partial etching of Al atoms (gray) in alkaline electrolyte exposes the [Fe2B2] layers (Fe = blue, B = orange), which are subsequently surface-oxidized to afford the formation of a shell composed of electrocatalytically active Fe3O4 nanoclusters (O = red).
Fig. 10 Comparison of OER electrocatalytic activity and stability of previously reported boride- and phosphide-based systems10a,21 to the performance of the AlFe2B2-based electrocatalytic system.
In summary, we have established that the layered-structure boride, AlFe2B2, serves as an excellent OER pre-catalyst, maintaining high electrocatalytic activity for more than 10 days under alkaline conditions. This material, composed of inexpensive and earth-abundant elements, outperforms the well-known PGM-based catalysts, IrO2 and RuO2. The high OER activity of AlFe2B2 is explained by its ability to act as a robust support for in situ formed Fe3O4 nanoclusters, which serve as active catalytic sites. This notion is supported by the much poorer performance of the catalyst prepared solely with Fe3O4 nanoparticles, as well as by electron microscopy studies, which clearly demonstrate the fast formation of the Fe3O4 shell on the surface of the AlFe2B2 particles upon initial electrocatalytic cycling.
It is also possible that the Al layers not only separate the [Fe2B2] layers and thus provide a more structured pre-catalyst, but also act as efficient electron-transport pathways, thus additionally facilitating the electrocatalytic reaction. To address this possibility, as well as other intriguing questions raised by the present work, we are currently expanding our studies to the other AlM2B2 (M = Cr, Mn) compounds, which are isostructural to AlFe2B2. Our findings in this direction will be reported in due course.
The manuscript was written through contributions of all authors. All authors have given approval to the final version of the manuscript.
The work performed at Florida State University was supported by the Petroleum Research Fund of the American Chemical Society (award 59251-ND10) and in part by the U.S. National Science Foundation (award DMR-1507233). The work performed at the International Iberian Nanotechnology Laboratory was partially supported by the European Union's Horizon 2020 research and innovation program through the CritCat Project under Grant Agreement No. 686053, and by FROnTHERA (NORTE-01-0145-FEDER-000023) project cofinanced by European Union Funds, through Portuguese NORTE 2020 program. The EELS studies were performed with the financial support from the Agence Nationale de la Recherche in the framework of the “Investissements d'avenir” program with the reference ANR-11-EQPX-0020.
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‡ Both authors contributed equally to this manuscript.

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


On February 2, the House passed and sent to the Senate HB 95. HB 95 modifies § 490.715, precluding the admission into evidence of the amount an injured party was billed for medical care that is alleged to have been caused by the defendant, but only if the amount billed was discounted or if the amount billed was satisfied by an amount less than the amount billed.
That same day, the Senate passed SB 31, allowing the introduction into evidence of the “actual cost” of the medical care rendered to an allegedly injured party. “Actual cost” is defined as the dollar amount paid by or on behalf of the injured party, plus any balance owed, after adjustment or reduction. SB 31 expressly repeals the 2005 amendment to § 490.715, removing the rebuttable presumption that the “value” of such medical treatment was the amount paid in satisfaction of the financial obligation to the provider.
There are differences in the bills that will need to be resolved by conference committee or otherwise before an amendment to § 490.715 could be sent to Gov. Greitens. Most significantly, HB 95 precludes the admission of the amount charged, while SB 31 permits the introduction into evidence of the “actual cost” of the medical care rendered to an allegedly injured party. Both bills are functionally the same, limiting the amount an injured party can claim as damages to the amount paid to satisfy an obligation to the party’s health care provider.
Even though the purpose of the bills is uniform, these differences will need to be resolved so that as the language of any bill signed into law will be critical. HB 95, in my opinion, more clearly states the intent of the legislature, although the definition of “actual cost” in SB 31 would be helpful in preparing and arguing future motions should this become law.
The Missouri Legislature had much the same, if not exactly the same, intent when it amended § 490.715 in 2005. With that amendment, the legislature created a “rebuttable presumption” that the “value” of medical expense damages was the amount “necessary to satisfy the financial obligation to the health care provider.” The law went on to identify factors that trial courts were to use to determine whether the presumption applied. When put into practice, trial courts typically allowed the parties to introduce to the jury both the amount billed by the provider and the amount paid to satisfy the obligation to that provider, especially after the Missouri Supreme Court’s 2010 decision in Deck v. Teasley, overturning a trial court’s limitation of damages to only the amount paid.
In light of the Missouri Supreme Court’s opinion in Deck, and the practice of trial courts throughout Missouri allowing the admission of competing evidence regarding the amount of medical expenses, the Missouri Legislature is attempting to more clearly codify its intent to strictly limit an allegedly injured party’s recovery of medical expenses to the actual amount paid to the provider. Being a politically charged issue, it will be interesting the see the development of a final bill. Even with Republican super-majorities in the House and Senate and a Republican Governor, all presumably friendly to tort-reform, the Missouri Association of Trial Attorneys (MATA) and other similar interest groups may have an impact on the final product. Medical negligence practitioners on both sides need to watch closely, as any amendment to § 490.715 will have a substantial effect on their cases.


City Court, City of Poughkeepsie.
PEOPLE of the State of New York, Plaintiff, v. Daniel BRYAN, Defendant.
David Goodman, Public Defender, Poughkeepsie (Thomas N.N. Angell, Esq. of counsel), for defendant. William V. Grady, District Attorney, Poughkeepsie (Cindy Murphy of counsel), for plaintiff.
Defendant is charged with Obstruction of Governmental Administration in the 2nd Degree in violation of Penal Law Section 195.05. The defendant is also charged with a City Ordinance violation for littering, but that charge is not a subject of the instant motion. Defendant has moved for, inter alia, dismissal of the charge for facial insufficiency. The Court will address that issue first.
the west bound arterial on Mill Street Rt. 44/55 stopping traffic, through local yards and climbing over fences and was finally apprehended in the area of 28 Smith Street.
The People do not argue that the defendant committed the crime of Obstructing Governmental Administration in the 2nd Degree “by means of intimidation, physical force or interference” (Penal Law § 195.05). Rather, the People argue that the defendant obstructed a governmental function “by means of an independently unlawful act.” Specifically, the People assert that the defendant could have been charged with, among other things, Resisting Arrest, and that these uncharged offenses constitute an “independently unlawful act” upon which the charge of Obstructing Governmental Administration in the 2nd Degree may be grounded.
The section charged (Penal Law, § 195.05) was not designed for this situation. It was, rather, intended to make criminal conduct designed to interrupt or shut down administrative governmental operations. This court fears that there is a tendency to pervert its purpose in the manner disclosed in this case. This Judge would discourage the practice as unnecessary and counterproductive.
The Offen case was cited approvingly by the New York Court of Appeals in Matter of Davan L., 91 N.Y.2d 88, 91, 666 N.Y.S.2d 1015, 689 N.E.2d 909 (1997).
This Court has held, and it is undisputed on this appeal by the presentment agency, that purely verbal interference may not satisfy the “physical” component under Penal Law § 195.05. (People v. Case, 42 N.Y.2d 98, 102, 396 N.Y.S.2d 841, 365 N.E.2d 872; see also, People v. Lopez, 97 Misc.2d 124, 410 N.Y.S.2d 787; People v. Offen, 96 Misc.2d 147, 408 N.Y.S.2d 914).
The police activity area was confined and defined, and the juvenile was put on specific, direct notice. There was evidence that he intentionally intruded himself into the specific area of police activity and directed his warnings toward a known criminal activity and assembly at the location identified to the juvenile by the police officer.
Thus, in Davan the Court of Appeals appears to have carefully avoided allowing the “independently unlawful act” component of Penal Law § 195.05 to stand on its own. Rather, Davan found that a “physical” component was present in that the defendant was said to have intentionally cause “a physical reaction” which obstructs governmental administration.
As a result of the Davan finding of a “physical” component even where the defendant engaged in no direct physical force or interference, and viewing this in conjunction with Davan's approving citation of Offen where the defendant's only physical action was in running away from the police, lower courts are left to ponder whether there remains in Penal Law § 195.05 any “independently unlawful act” element that may exist as the basis of a charge separate and apart from the “physical” component of that statute. Fortunately, the statute itself provides a clue to answering this question.
The crime of “obstruction of governmental administration” was originally a single-degree crime designed and written to apply generally to any person who intentionally obstructs a governmental function “by means of intimidation, physical force or interference, or by any independently unlawful act.” See Penal Law § 195.05 (practice commentaries). Through a series of amendments, the law was eventually subdivided into two degrees, with the original crime being further amended to include three parts. Id.
The first part of the current Penal Law § 195.05 1 prohibits the intentional obstructing of governmental administration “by means of intimidation, physical force or interference, or by means of any independently unlawful act.” The term “physical” has been held to modify both the term “force” and the term “interference.” People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977). The second part of that statute 2 , however, prohibits obstruction by means of interfering with certain radio, telephone, television or other telecommunications systems “whether or not physical force is involved.” (Emphasis added.) By specifically providing in the second part of the statute that obstruction may found “whether or not physical force is involved,” it may at least arguably be inferred that the legislature intended that a “physical” component apply to the entirety of the first part of the statute. Considering the specific wording of the statute, and in light of previous judicial interpretation thereof, it is the opinion of this Court that the legislature did so intend.
Thus, it is the finding of this Court that the first part of Penal Law § 195.05 requires a “physical” component in all respects, including as applied to the “independently unlawful act” component of that provision, where “physical” may be broadly defined to include not only direct physical force but also any conduct that intentionally causes a “physical reaction” which can be said to have in turn caused the prohibited obstruction. Such an interpretation, it seems to this Court, not only comfortably encompasses the holdings of Davan and Offen, but also provides a bright line (or if not bright, at least a visible line) by which prosecutors and police may be guided in the application of the law.
Here, the defendant is alleged to have run away from the police after being told that he would be charged with an offense. His actions caused a “physical reaction” in that the police chased him, but it cannot be said that being chased was his intent. Therefore, the accusatory instrument fails to sufficiently allege the charge of Obstructing Governmental Administration in the 2nd Degree. Furthermore, the failure to set forth all the elements of the charge amounts to a jurisdictional defect that must be deemed fatal.
Therefore, for the reasons set forth above, the charge of Obstructing Governmental Administration in the 2nd Degree is dismissed, leaving only the littering city ordinance charge to be determined.
3. This Court does not mean to suggest by this finding that a defendant may never be charged both with Obstructing Governmental Administration in the 2nd Degree and with Resisting Arrest. Certainly, a defendant may resist an arrest for the obstructing charge and thereby be charged with both. People v. Cacsere, 185 Misc.2d 92, 712 N.Y.S.2d 298 (App. Term 2nd Dept.2000). Furthermore, it is conceivable that a defendant may run from the police for the very purpose of having them give chase in order to obstruct some other governmental activity that was about to take place.


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Dr. Pooja V. Anand is currently Assistant Professor of Psychology at Daulat Ram College, University of Delhi, India. She has been teaching Psychology for more than eleven years. Her teaching and research interests include Positive Psychology, Organizational Behaviour, Human Resource Management, and Social Psychology. She was awarded her PhD degree from University of Lucknow, India on the topic “Problem Solving and Emotional Intelligence: Correlates of Self-efficacy” in 2010. She won the gold medal for being the topper in M.A. Psychology from University of Lucknow in 2003 and Junior Research Fellowship Award from University Grants Commission, 2003.
She is the author of the book “Emotional Intelligence-Journey to Self-Positive” published in January, 2017. She has authored book chapters for The Psychological Realm, and Career Development: Different Voices Different Choices. She has published many research articles in scientific journals. She has also written many articles on emotional intelligence, and other positive psychology topics in newspapers of national repute like The Tribune, Millennium Post, Free Press Journal and Nai Duniya.
She is a member of the Indian Association of Positive Psychology and India Career Development Association. She is the Assistant Editor of the Journal of Positive Psychology published by the Indian Association of Positive Psychology and reviewer for many reputed scholarly journals.
Dr. Anand teaches courses on Emotional Intelligence, Organizational Behaviour, Human Resource Management, Social Psychology, Applied Social Psychology, Research Project, Experiments, Psychological testing etc. in undergraduate course in Psychology at Daulat Ram College, University of Delhi and has taken classes for post-graduate course in Psychology and Ph.D. course at Department of Psychology, University of Delhi. She is currently guiding many PhD scholars enrolled at Department of Psychology, University of Delhi, India.
She has completed refresher courses in Psychology, and Research Methodology (2015) from Centre for Professional Development in Higher Education, University of Delhi and Faculty Development Programme on Qualitative and Quantitative Research Methods using SPSS from Daulat Ram College, University of Delhi, India (2016).
Dr. Anand is currently the Convenor for Skill development courses (2015-16, 2016-17) in her College and has started many Skill development courses in Psychology like “Enhancing Emotional Intelligence Skills”, “Personality development”, and “Self-enhancement skills” as well as courses in various disciplines. In the three skill development courses in Psychology she has been resource person for modules on Intrapersonal Understanding, Interpersonal Management, Emotional Skills, Positive thinking etc.
She has been invited for lectures/ workshops on emotional intelligence, and positive thinking at various prestigious national and international forums. She was invited to conduct a workshop on “Developing EQ” in the "Personality, Employability and Skills Development" for the Below Poverty Level (BPL) students by the School of Open Learning, University of Delhi (2016).
Dr. Anand has supervised many undergraduate research projects in new and upcoming areas in Psychology like Emotional intelligence, Positive Psychology, Self-efficacy, Psychological Capital, Subjective well-being, Leadership, Positive Organizational Behaviour etc. She has been conducting research on Emotional Intelligence for more than a decade now including her Ph.D. and has studied the relationship of emotional intelligence with a wide range of variables such as Self-efficacy, Happiness, Problem solving style, Satisfaction with life, Occupational Stress, Psychological Capital, Work Engagement, Job satisfaction etc as well as the impact of interventions based on emotional intelligence on health and well-being.
She has presented many papers at various national and international conferences: International Conference on Health and wellbeing (2016), International Conference on Public Health (2016), 3rd National and First International Conference of Positive Psychology (2015), Annual InSPA International Conference (2014), First International Conference on Career Development (2013), National Seminar on Aggression and Violence (2010), 6th Regional Conference of PhD Scholars (2005); 29th Indian Social Science Congress (2005). She won the First prize for the Best Paper Presentation in a Scientific Session for the paper titled “Self-efficacy and lifestyle patterns: Finding the link” in the International Conference on Public Health in January, 2016 organized by Daulat Ram College, University of Delhi and Krishi Sanskriti (First and Principal author). She has been invited as Chairperson in scientific sessions at various national and international conferences.
She has participated in many workshops: Training Workshop on “Assessment and Development Centre”(Work Psychology and Human Resource Forum, Faculty of Arts, University of Delhi, 2015); Workshop on “Advances in Applied Positive Psychology” (Deptt of Humanities and Social Sciences, IIT Delhi, 2015); Workshop on “Positive Psychology at the workplace” (Indian Association of Positive Psychology, 2015).
Dr. Anand has been the paper coordinator for Social Psychology and co-coordinator for Positive Psychology paper for the E-pathshala project sponsored by University Grants Commission-Ministry of Human Resource Development, India. She has also authored modules for these papers. She has been the member of the Core Committee for formulating the syllabus for B.A. (Hons) Psychology, B.A. (Hons) Applied Psychology, and B.A. (Programme) Psychology for the Choice Based Credit System taught at all central universities in India. She was invited as expert for undergraduate and post-graduate syllabus formulation at Manav Rachna International University, Faridabad, India. She has also translated many questionnaires for various research projects.
Anand, P. V. (2017). Emotional Intelligence - Journey to Self-Positive. New Delhi: The Readers Paradise.
Anand, P. V. (2014). Career self-efficacy and career related behaviours. In Career Development: Different Voices, Different Choices (pp. 81-99). New Delhi: The Readers Paradise.
Anand, P. V. (2014). Intelligence. In The Psychological Realm: An Introduction. (pp. 472-525). New Delhi: Pinnacle Learning.
Anand, P. V. (2016). Attitude towards homosexuality: A survey based study. Journal of Psychosocial Research, 11 (1), 157-166.
Anand, P. V. (2015). Enhancing emotional intelligence: An intervention based study. Journal of Positive Psychology, 4 (1), 5-16.
Anand, P. V. & Singh, S. (2015). Religious orientation, self-esteem, and happiness among undergraduate students. Indian Journal of Positive Psychology, 6 (4), 349-355.
Anand, P. V. (2013). Aging and emotional intelligence. Indian Journal of Health and Well-being, 4 (9), 1760-1763.
Anand, P. V. & Kumar, Y. (2013). Subjective well-being of performing artists and its relationship with self-efficacy. Indian Journal of Positive Psychology, 4 (2), 235-243.
Anand, P. V. (2013). Emotional intelligence and self-efficacy as predictors of life satisfaction among undergraduate students. Journal of Positive Psychology, 2 (1), 34-49.
Anand, P. V. & Marwaha, R. (2016). Self-efficacy and lifestyle patterns: Finding the link. (Conference proceedings, International Conference on Public Health: Issues, challenges, opportunities, prevention, awareness organized by Daulat Ram College, University of Delhi and Krishi Sanskriti, Delhi), Vol. 1, 76-81.
Anand, P. V., Singh, V. & Basu, A. (2016, March). Emotional intelligence and optimism: Understanding the relationship with health behaviours. (Conference proceedings of the International Conference on Health and well-being organized by Jamia Millia Islamia, New Delhi). In Positive vistas on health and well-being, pp.212-222.
Bora, D. & Anand, P. V. (2014). The effect of emotional intelligence on self-esteem and adjustment among adolescents. (Conference proceedings of the Annual InSPA International Conference organized by the Department of Psychology, Guwahati University & Psychologists’ Association of North East India (PANEI)), Pp. 302-315.
Anand, P. V. & Marwaha, R. (2016, January). Self-efficacy and lifestyle patterns: Finding the link. Paper presented at International Conference on Public Health organized by Daulat Ram College, University of Delhi and Krishi Sanskriti, Delhi. (proceedings published). (Won the First prize for the best paper presentation for the session).
Anand, P. V. (2015, February). Happiness in young adults: The role of gratitude, emotional intelligence, and forgiveness. Paper presented at 3rd National and First International Conference of Positive Psychology organized by the Indian Association of Positive Psychology at Manav Rachna International University, Faridabad.
Bora, D. & Anand, P. V. (2015, February). Leadership style, emotional intelligence and emotional creativity: a study on school and college principals. Paper presented at 3rd National and First International Conference of Positive Psychology organized by the Indian Association of Positive Psychology at Manav Rachna International University, Faridabad.
Kaur, J. & Anand, P. V. (2015, February). Subjective well-being: relationship with organizational commitment, job satisfaction, work engagement and emotional intelligence. Paper presented at 3rd National and First International Conference of Positive Psychology organized by the Indian Association of Positive Psychology at Manav Rachna International University, Faridabad.
Anand, P. V. (2010, March). Working with Emotional Intelligence: Controlling Aggression and Violence and Promoting Well Being. Paper presented at the National Seminar on Aggression and Violence: Challenges for Social Well Being organized by the Department of Psychology, Jamia Millia Islamia University, New Delhi.
Anand, P. V. (2005, December). Creating a New Civilization through Emotional Intelligence. Paper presented at the 29th Indian Social Science Congress at Lucknow organized by the University of Lucknow, Lucknow.
Anand, P. V. (2005, March). Problem Solving and Emotional Intelligence: Correlates of Self Efficacy. Paper presented at the 6th Regional Conference of PhD Scholars organized by the G.B. Pant Social Science Institute, Allahabad.
Anand, P. V. (2015, May 26). Importance of EQ in day-to-day life. The Free Press Journal, Mumbai, p. 11.
Anand, P. V. (2015, June 02). Diagnosing Strengths and Virtues. Millennium Post, New Delhi, p. 09.
Anand, P. V. (2015, June 04). Manovigyaan ke sahaare sudhaarein karmchaariyon ki dakshta. Nai Duniya, Indore, p. 08.
Anand, P. V. (2015, September 23). Why emotional intelligence matters. The Tribune.
Anand, P. V. (2015, November 18). MAGIK FOR Happiness. The Millennium Post, New Delhi, p. 9.

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The California Supreme Court’s 2009-2010 term will be remembered as the year Chief Justice Ronald M. George announced his intention to bring his distinguished career of leadership and public service to a close. What a remarkable career it has been. Not since the great Chief Justice Roger Traynor has California been blessed by such a towering judicial figure.
During his 19-year tenure on the Supreme Court, 14 years as its chief, Ron George successfully re-established the preeminence of California’s highest court as one of the leading state courts in the country. The court’s national reputation and prominence had taken a steep dive in the late 1970s and early 1980s, and the failure of three justices to win their retention elections in 1986 further damaged the court's prestige and credibility. In the aftermath of the 1986 election debacle, the court swung hard to the right.
Chief Justice George slowly but surely led the court back to the center, and from that position of strength, the court re-emerged in this decade as a jurisprudential and constitutional leader. Its jurisprudence has been marked by fundamental themes that express the very essence of a judiciary that is independent yet appropriately restrained and respectful of the people’s political power and the powers of the other branches of government.
The court has repeatedly demonstrated deference to the voters in its approach to the interpretation and review of voter initiatives. The most obvious recent example was the court’s decision in 2009 upholding Proposition 8, which limited marriage to persons of different genders. In Strauss v. Horton (2009) 46 Cal.4th 364, the court upheld the power of the voters in Proposition 8 to overturn the court's decision of only one year earlier that same-gender marriage was constitutionally protected (see In re Marriage Cases (2008) 43 Cal.4th 757). The court properly held that, under the state Constitution, the voters had the final say.
Whether Proposition 8 survives under the federal Constitution was not litigated in Strauss, and that issue is now squarely before the Ninth Circuit Court of Appeals in an appeal of Judge Vaughn Walker’s decision striking down Proposition 8 on federal equal protection grounds. The conventional wisdom is that the United States Supreme Court will inevitably grant review in this case, but I suspect that depends very much on what the Ninth Circuit does. If the Ninth Circuit affirms, Supreme Court review would be a near certainty; by contrast, if the Ninth Circuit reverses and upholds Proposition 8, the four reliably liberal votes on the Supreme Court might hesitate to grant review fearing that the high court may not be ready to rule in favor of gay marriage. The fact that an issue is important does not mean it is necessarily ripe for review by the U.S. Supreme Court.
Returning to the California Supreme Court, we also saw the court defer to the voters in the 2000 term by broadly interpreting and implementing the provisions of Proposition 209, which forbids discrimination or preferential treatment in public contracting, education and employment based on race or gender. See Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537.
Proposition 209 was back before the court this year in Coral Construction, Inc. v. City and County of San Francisco (2010) 2010 Westlaw 2991113, where the court rejected a challenge to Proposition 209 based on the “political structure doctrine” of the federal equal protection clause. Under that doctrine, a state will be prohibited from changing the structure of its civil rights laws in a way that raises obstacles to equal treatment. See Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457; Hunter v. Erickson (1969) 393 U.S. 385.
According to the court in Coral Construction, that doctrine did not apply because Proposition 209 did not formally raise an obstacle to equal treatment; instead, it raised an obstacle only to preferential treatment. Both the concurring opinion by Justice Carol Corrigan and the concurring and dissenting opinion by Justice Carlos Moreno correctly point out that the Seattle and Hunter cases contain language that, fairly read, would consign Proposition 209 to the “unconstitutional obstacle” side of the page, and both correctly observe that Seattle and Hunter are in significant tension with subsequent U.S. Supreme Court cases. Faced with this uncertainty, the majority understandably went with the voters and the more recent federal authorities.
Similarly, the court has repeatedly deferred to the legislature and governor in the interpretation and review of statutes and executive decisions. For example, in Obrien v. Jones (2000) 23 Cal.4th 40, the court upheld the constitutionality of a statute that took away from the Supreme Court the power to appoint all of the members of the State Bar Court in favor of an appointment system in which, of the five judges of State Bar Court hearing department, only two judges were appointed by the court, one was appointed by the governor, one by the Senate Committee on Rules and one by the Speaker of the Assembly. Although the decision transferred significant authority from the Supreme Court to the governor and legislature, the court did not reflexively declare the statute unconstitutional in a vain effort to protect its bureaucratic turf. Instead, the court engaged in a careful analysis of the purposes for the change and its actual likely consequences, ultimately concluding that the change did not violate separation of powers.
The court reached a similarly deferential conclusion five years later in Marine Forests Society v. California Coastal Commission (2005) 36 Cal.4th 1, where the court upheld the constitutionality of provisions giving the legislature a majority of the appointments to the California Coastal Commission.
In cases involving the governor’s parole powers, the court has regularly deferred to executive authority, brushing back claims that Gov. Gray Davis had implemented an unlawful “no parole for murderers” policy in In re Robert Rosenkrantz, 29 Cal.4th 616 (2002), and rejecting lower court instructions to the Parole Board that purported to limit the board’s consideration of relevant evidence and factors in cases remanded to the board for further consideration. In re Michael B. Prather (Cal. 2010) 234 P.3d 541.
The extent of the court’s deference to executive authority will be tested again in a series of cases that are before the court right now involving the legality of the governor’s orders furloughing state employees. Given the court’s general history of deference, those who are challenging the governor’s authority have their work cut out for them.
In the area of civil common law, the court has steered a centrist’s course. The pro-plaintiff excesses of the Bird court ended in 1986 when Gov. George Deukmejian appointed three conservatives to fill the seats vacated by the three justices who lost their retention elections. There was a hard swing to the right under the leadership of newly appointed Chief Justice Malcolm Lucas, and several Bird court precedents were overruled as a result. See, e.g., Parvaneh Moradi-Shalal v. Fireman’s Fund Insurance Companies (1988) 46 Cal.3d 287, overruling Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880; Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, overruling Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752.
As the composition of the court gradually changed with appointments by Govs. Pete Wilson, Davis and Arnold Schwarzenegger, and under the strong leadership of Ron George, who was appointed chief in 1996, we have seen the California Supreme Court move to the center and express respect for the ordinary person’s interests in employment and privacy and as consumers.
For example, in the field of employment, although the court reiterated its support for the contract-based “at will” doctrine as set forth in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, over a period of years, the court delineated a sophisticated framework for determining when a discharge violated public policy considerations and could nevertheless result in the imposition of tort liability upon the employer notwithstanding the “at will” doctrine. See, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880 (tortious wrongful discharge as applied to older workers); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 (tortious wrongful discharge based on federal aviation safety regulations). The court never adopted an all-or-nothing rule in this area of law to the benefit of employees.
In the field of privacy, in a decision this term, the court held that an employee’s privacy interest in his or her office may be invaded when the employer secretly installs a camera in the office to determine whether a computer in the office is being misused during overnight hours, although the court also held that the intrusion on the particular facts in this case was not “highly offensive” (primarily because the defendant carefully limited the scope of the videotaping activity in an attempt to discover only improper use during off hours). Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272. In prior years, the court has recognized that season ticket holder’s privacy may have been violated by a policy of subjecting all ticket holders to a pat-down search prior to entering the stadium to watch a football game. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992. Privacy interests receive special protection in California.
In the field of consumer protection, the court has given Section 17200 of the Business and Professions Code a broad interpretation to protect consumers against any and all types of unfair, unlawful or fraudulent business practices, Cel-Tech Communication, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, and the court has recognized the broad standing rules which apply to such actions. Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553. However, the court has tried to steer a middle course as to the remedies available to consumers by rejecting the effort to use Section 17203 to secure disgorgement of profits from a business in a representative action absent proper certification of a class. Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116. See also Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134 (limiting the disgorgement remedy further to restitution).
In each of these areas and more, the court has searched for, and usually found, a middle ground where common sense and reasonableness rule the day. It has avoided the extremes, whether on the pro-plaintiff side or on the pro-business side.
Chief Justice George was equally successful in leading the judicial branch as the chair of the Judicial Council. Throughout his 14 years as chief, he was committed to strengthening the judiciary as a co-equal branch of government, to improving access to the courts for all, particularly for those who were unrepresented or underrepresented, to advancing the cost-effective and accountable administration of the courts and to bringing the courts into the 21st century in its use of technology.
The list of administrative accomplishments and successes is long: state trial court funding; unification of the trial courts; negotiation of a trial court employee protection act; transfer of ownership of court facilities from the counties to the state judiciary; jury system improvement; increased availability of court interpreters, and creation of family court self-help centers for unrepresented litigants, to name just a few.
In addition to these significant “macro” changes, the chief’s leadership has resulted in a culture of innovation within our court system that will benefit Californians for decades to come. California’s courts and their employees, both judges and staff, are relentless problem solvers, all of whom are committed to improving access to justice.
There is only a little unfinished business from George’s ambitious agenda. The courts’ management of their facilities and management of a multi-billion dollar construction program will be a challenge for the next chief since the courts have taken on a very large portfolio of buildings and construction projects. In addition, the statewide court case management system is entering its most sensitive, expensive development and implementation phase, and large technology projects are a challenge for any organization.
And of course there is the death penalty. Notwithstanding the chief’s decade-long effort to streamline the review process and find more lawyers willing to take on death penalty appeals, the death penalty process in California remains stuck firmly in “park,” mostly for reasons beyond the chief’s control.
There are now almost 700 inmates on Death Row, almost 250 inmates more than when Ron George was appointed chief 15 years ago. If you assume – contrary to all experience and reasonable expectations – that we somehow started executing one inmate on Death Row every two weeks, it would take the state an amazing 27 years just to clear the backlog (and this assumes zero new death penalty convictions for the next 27 years). Each of those years will cost the state hundreds of millions of dollars in excessive corrections and litigation costs associated with maintaining the death penalty. Just this month, the administration announced it was starting construction on a $350 million new Death Row facility because the current facility has run out of space and is literally falling apart. Finally, there is the burden on the Supreme Court itself. Again this year, 20 percent of the court’s opinions were automatic death penalty appeals, a terrible waste of the court’s precious attention and resources. It is time to stop throwing good money after bad. The state simply does not have the will, capacity or money to implement the death penalty in a reasonable fashion.
The chief has earned his retirement and our gratitude for his service. He will be leaving the California judiciary much stronger than when he joined the Supreme Court. The courts are more accessible and better prepared to meet the many challenges of the coming decades. Public trust in the judiciary remains at high levels. And Chief Justice George led the California Supreme Court back to national stature. Throughout his tenure, he was the most influential vote on the court, and he often took responsibility for authoring the court’s most difficult and politically sensitive decisions.
Ron George has been a leader in every sense of the word. We will not likely see his equal for generations to come.
• Clark Kelso is a professor at the University of the Pacific McGeorge School of Law and he serves as the federally-appointed receiver responsible for California’s prison medical care system. The views expressed in this article are solely the personal views of the author.

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