text: Explain the meaning and significance of the provision in Section 11 Sub-section 4 that deals with a contract term seeking to restrict financial liability to a specific sum. How useful are the guidelines for applying the reasonableness test in Schedule 2? (4) Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to- (a) the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and (b)how far it was open to him to cover himself by insurance. As has been indicated, clauses excluding or restricting liability will frequently be ineffective under the Unfair Contract Terms Act 1977 unless they satisfy the requirement of reasonableness. It is for the party seeking to rely upon the exemption clause to establish that it is reasonable (section 11(5)) and the assessment is made against the time frame of the making of the contract. Under section 11(1) the term must have been a fair and reasonable one to have included in the contract having regard to all the circumstances which were or ought reasonably have been known to, or in the contemplation of the parties when the contract was made. The actual breach is not relevant to the reasonableness of an exemption clause, merely potential breaches within the reasonable contemplation of the parties when they contracted. There are guidelines in schedule 2. For historical reasons, they are only relevant by 'legislative prescription' when the requirement of reasonableness is applied by sections 6 or 7, but they are a list of factors which the courts have recognised to be generally factually relevant to the requirement of reasonableness, under whichever section it is applied. There is also further specific guidance as to the treatment of clauses which limit liability in section 11(4). In relation to such clauses, regard is to be had to the resources available to the proferens to meet potential liability and how far it was open to that party to obtain insurance cover. In general, the courts have indicated the relevance of considering the insurance situation eg whether the exemption clause placed the risk of some problem with performance on the person best able to insure and whether the allocation of the need to insure was reflected in the contract price. Also, in Smith v Bush (1990 p.858), Lord Griffiths set out a list of four factors he regarded as generally relevant to the requirement of reasonableness - the relative bargaining power of the parties; availability of an alternative source of supply of the contract performance; the nature of the task being undertaken by the proferens (one with a high degree of risk more readily justifying an exemption clause); the practical consequences of the decision on reasonableness, having regard to the sums of money potentially at stake; the ability of the parties to bear the losses involved and the availability of insurance to meet such losses. However, despite these statements as to generally relevant factors, the limited nature of the role of the appellant court in this context should be noted. Recognising that the type of weighing of factors which is required in applying the requirement of reasonableness means that there is scope for a 'legitimate difference of opinion as to what the answer should be', the House of Lords has indicated that 'the appellate court should treat the original decision with the utmost respect and refrain from interference with it unless satisfied it proceeded upon some erroneous principle or was plainly and obviously wrong' (George Mitchell Ltd. v. Finney Lock Seeds Ltd. (1983 ), Lord Bridge at 816). Decisions on the requirement of reasonableness provide only limited guidance. The first of the specific cases to consider here is The Salvage Assn v. CAP Financial Services Ltd. (1995) which was concerned with two contracts for the design, development and supply of computer accounting software for the plaintiff marine surveying company. After two years the system was not complete and had numerous problems. The plaintiff terminated the second contract (the first being over) and sued the defendant for the contract price (GBP 300,000) and wasted expenditure (GBP 500,000). Inter alia, and the relevant point to be considered here, the defendants sought to rely upon clauses limiting their liability to GBP 25,000 under each contract. Under sections 2(2) and 3 of the 1977 Act, the question arose as to whether the limitation clauses satisfied the requirement of reasonableness. The judge took the view that (at 676) 'Generally speaking where a party well able to look after itself enters into a commercial contract and, with full knowledge of all relevant circumstances willingly accepts the terms of the transaction, I think it is very likely that those terms will be held to be fair and reasonable.' In the particular case, the parties were viewed as being of equal bargaining power and the contract terms as considered and negotiated over a period of time. Had matters rested there the judge would have accepted that the defendants had established the reasonableness of the limitation clauses. However, there were additional factors to consider. In particular, the defendants had not justified the level of the limitation - it bore no relationship to the value of the contract, to the defendant's turnover, to the level of the defendant's insurance cover, or to the financial risk to the plaintiff. Even more particularly, the GBP 25,000 limit was one which the defendants themselves regarded as inappropriate by the time the contracts with the plaintiffs were made (the new limit decided on was GBP 1,000,000). The judge seems to have viewed this last factor as particularly damning of the defendant's claim that their limitation clause was reasonable, and that might seem to be self evident. However, the test of reasonableness in s11 must be borne in mind - it refers to the circumstances 'which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made' (emphasis added). The defendant's views as to the appropriate level of limitation were obviously known to themselves but it is difficult to see how they could have been within the reasonable contemplation of the plaintiffs. Similarly, the judge considered the actual levels of the defendant's insurance cover (GBP 5,000,000 with an excess of GBP 500,000) and again that would seem to be outside the plaintiff's reasonable contemplation. In Flamar Interocean Ltd. v. Denmac Ltd. (1990), Potter J. made it clear that unless parties have discussed their actual insurance positions before contracting, section 11(1) only allows for consideration of the insurance that was available at the time of contracting. In the absence of such discussions, it is only the possible insurance arrangements that can have been within the reasonable contemplation of 'the parties' (ie both of them) at the time the contract was made. In other words much of what was considered in The Salvage Assn. case in relation to reasonableness was not relevant under the test stated in section 11(1). However, that is not to say that the decision is not justifiable. As has been indicated, under section 11(5) the burden lay on the defendants to establish the reasonableness of their clause and, as was pointed out, they had done nothing to show that the limitation to GBP 25,000 was anything other than arbitrary. In addition, whilst the specifics of the defendant's own view of the limit and its actual insurance position were not relevant, their position more generally (eg size of the company) and the availability of insurance to them clearly were, and might be seen as indicating that the limit was not reasonable. The general point to be made is that the basis of the level of limitation in a clause restricting liability will have to be justifiable if the clause is to be found to be reasonable. The second case specifically to be considered here is St Alban's City and District Council v. International Computers Ltd. (1995). That case arose because of the Council's decision to install its own computer with appropriate software to deal with the implementation of the Community Charge and with the Council's finances in general. After taking expert advice on tenders, the Council contracted with the defendants, ICL. However, the program proved to be defective and it produced an overstatement, by about 3,000, of the population figure for the Council's area and that led the council to claim a loss of something in excess of GBP 1.3m. The question was whether this was recoverable from ICL. Scott Baker J found a clear breach by ICL of an express term that ICL would provide software which was reasonably fit for the Council's purpose of maintaining and retrieving a reliable register of the local community. ICL claimed to rely on clause 9(c) of their contract to limit their liability to GBP 100,000. Scott Baker J found that clause was rendered ineffective by the Unfair Contract Terms Act 1977 as ICL could not establish that it satisfied the requirement of reasonableness which was applied under section 3, inter alia. It is that conclusion which must be considered here. On appeal (St Alban's City and District Council v. International Computers Ltd (1996)), the Court of Appeal reduced the damages payable by the defendants for reasons unconnected with the limitation clause. In relation to the application of the reasonableness test, there was reference to the limited intervention approach to be taken to appeals and the Court left that part of the decision untouched. Nourse L.J. did add that he believed 'he would have given the same answer' himself (at 492)). One point which should be emphasised is that ICL had mistakenly used an earlier version of their standard terms in contracting and the version current at the time of the contract with the Council limited liability to GBP 125,000, rather than GBP 100,000. This, in itself, would seem to have made it very difficult for ICL to argue that the clause was a fair and reasonable one to have included in the contract - as the higher limit was part of the standard terms ICL were then using, it could have been within the parties' reasonable contemplation. However, whilst that error on ICL's part must not be lost sight of, what is of more interest is the judge's general approach to the reasonableness test. He concluded that there were four determining factors showing that the clause was unreasonable. Firstly, he referred to the parties' unequal bargaining power. However, whilst the Council might not have been able to contract without the clause, it was in a very different situation to that of the average consumer. It had legal advisers amongst its employees, for example. Secondly, Scott Baker J emphasised that the defendants had not justified the figure of GBP 100,000 which he regarded as small, both in relation to the potential risk and the absolute loss. Of course, against the background of their use of the wrong version of their standard terms, justifying the precise sum would have been virtually impossible for ICL, but, as has already been indicated, it would seem that in general the level of a limitation will have to be justifiable. The third point made by Scott Baker J was that ICL were well covered by insurance (an aggregate of GBP 50m worldwide) and finally, he looked at the practical consequences of the clause being effective or ineffective. He thought it more appropriate for the loss to be borne by a well insured large company than by the community charge payers of St. Albans. Again the point made above as to consideration of the parties' actual insurance position should be remembered, but the type of cover available could be within the parties' reasonable contemplation In addition, Scott Baker J summarised the factors which pointed to a finding that the clause was reasonable. They were 'that bodies such as computer companies and local authorities should be free to make their own bargain, that the companies contracted with their eyes open, that limitations of this kind are commonplace in the computer industry and that [the software package] was an area of developing technology'. As has been indicated, he considered those latter factors to be outweighed by those indicating the unreasonableness of the clause and, of course, the burden of proof was on ICL to establish the reasonableness of the clause. That weighing exercise should be considered further. In deciding that the clause was unreasonable the judge placed great emphasis on the size of the company and its insurance. However, it is usual to relate the question of insurance cover to the contract price. Was it clear that, given the risks involved in developing software, that increased liability would not have involved increased insurance costs for ICL and an increased contract price? The need to inquire into such a relationship should be emphasised. Of course, even if a defendant would have had to increase insurance cover, and costs, to increase the limit on their liability, that is not necessarily determinative of the question of reasonableness. In Smith v. Bush, (1990), the fact that surveyors would have had to increase their insurance, and charge their customers more if a disclaimer of liability was ineffective did not render the disclaimer reasonable. The practical consequences of the disclaimer being effective were such that it was regarded as unreasonable and in the St Alban's case Scott Baker J emphasised the practical consequences of the limitation clause being effective and loss falling on the local population rather than on an 'international computer company'. However, the appropriateness of an analogy between the situation of the consumer in Smith v. Bush and the Council in the instant case must be questioned. In Smith v. Bush Lord Griffiths noted that the surveyors were insured and said (at 858) 'Bearing the loss will be unlikely to cause significant hardship if it has to be borne by the surveyor but it is on the other hand quite possible that it will be a financial catastrophe for the purchaser who may be left with a valueless house and no money to buy another'. The possibility of financial disaster for the individual in Smith v. Bush seems to be very different to the situation of the Council in the St Alban's case even when it is emphasised that the burden would eventually fall on the individuals within the Council's area. In the consumer context, exemptions are unlikely to satisfy the requirement of reasonableness and may also be subject to the test of fairness under the 1994 Regulations. However, in the commercial context, it can be contended that more account needs to be taken of the special nature of software problems. In Smith v. Bush Lord Griffiths indicated that a high degree of risk in the contract performance might indicate the reasonableness of an exemption. This should be considered in the light of the difficulties in eliminating bugs from software which has been explained by analogy with chaos theory. It has been said (Lloyd and Simpson ( 1994) at 79-80) 'It is impossible to test even the simplest program in an exhaustive fashion. This is because of the myriad possibilities for interaction (whether desired or not) between the various elements of the program ... [Chaos theory] suggests that every event influences every other event; that the beating of a butterfly's wings has an impact upon the development of a hurricane ... The theory's hypothesis is reality in a software context. Although software can and should be tested, it has to be accepted that every piece of software will contain errors which may not materialise until a particular and perhaps unrepeatable set of circumstances occurs'. Of course, these difficulties may impact upon the content of the contractual performance in itself (eg affecting what will be required for goods to be of satisfactory quality under section 14(2) of the Sale of Goods Act 1979) (see Rowland and Macdonald (1997)), but nevertheless they should be acknowledged in relation to the question of the reasonableness of at least some exemptions. In addition, whilst a high level of insurance may be available to some suppliers, and against that background a limitation may appear to be low, before any such conclusion is reached consideration should be given to another special feature of a breach involving a software bug. The point has been made by Lloyd (1997, at 455) 'if one copy of a software product exhibits defects it may be extremely likely that all products will be so tainted. With manufactured products generally, most defects are introduced at the production stage and affect only a portion of the products in question. A finding that one copy of a software package is [not of satisfactory quality] might, by way of contrast, leave its producer liable to every purchaser.' This should be relevant when levels of insurance cover are considered in addressing the reasonableness of a limitation clause.

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Louboutin sued Darveys.com before the High court of Dehli for infringement of its trademark rights, an opportunity for the high court to clarify the issue on the liability exemption that intermediaries can potentially benefit. In the present case, given Darveys.com’s active and central role in its business model and in the content of its platform, the High Court considered that this marketplace could not be qualified as an intermediary under the India Information Technology Act (High Court of Delhi, Christian Louboutin SAS v. Nakul Bajaj and Ors., CS (COMM) 344/2018).
3.1. What is an intermediary?
Darveys.com is an online marketplace specialized in luxury goods. Darveys.com claims that the products are obtained from shops in the USA and Europe at discounts as high as 60%. Its business is based on dozens of partnerships with boutiques all over the world. The platform indicates that it does not sell the goods, but only allows consumers to book them from partner stores. In order to shop on Darveys.com, customers have to pay a certain amount of money and obtain a membership. The marketplace ensures that the goods offered are authentic. The platform prides itself on the authentication procedure it has established: a panel of experts reviews and validates or invalidates products before they are sent to consumers. However, Darveys.com does not go so far as to guarantee the authenticity of the products in its terms and conditions. If the products turn out to be counterfeit, Darveys.com will return twice the money.
The French company Louboutin came to know that Darvey.com was offering Louboutin products. The website was also displaying a photograph of the French designer Mr. Christian Louboutin. Louboutin sued Darveys.com before the Indian courts. On September 26, 2014, the High Court of Dehli granted Louboutin an interim injunction ordering Darveys.com to stop promoting Louboutin products.
Marketplaces seem to be specifically targeted. The platform Darveys.com could, therefore, prima facie, be considered as an intermediary (para 11).
“(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(b) upon receiving actual knowledge or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
The India legal regime is supplemented by the Information Technology (Intermediary Guidelines) Rules, 2011. In particular, these guidelines provide that the intermediary that faces illegal content must act within thirty-six hours (Article 3(4). See also Clarification on The Information Technology (Intermediary Guidelines) Rules, 2011 under section 79 of the Information Technology Act, 2000, 18 March 2013).
In the decision rendered on 2 November 2018, the High Court of Dehli, as usual, refers to the case-law of other legal systems: that of the European Union (CJEU, 23 March 2010, C 236 / 08 to C 238/08, Google France SARL, Google Inc. v. Louis Vuitton Malletier SA & Ors., CJEU, July 12, 2011, C-324/09, L’Oreal SA & Ors v. EBay International AG & Ors.) and subsequently that of the French courts (mentioning the various decisions rendered in the litigation between Louis Vuitton Malletier and eBay), as well as the American case law (Tiffany vs. eBay 600 F.3d 93, Inwood Laboratories, Inc. v. Ives Laboratoes, Inc. 456 US 84, Hard Rock Café v. Harry’s Sweat Shop 955 F.2d, Lockheed Martin Corp. v. Network Solutions, Inc. 194 F.3d 980, Sony Corp. of America v. Universal City Studios, Inc. 464 US 417). These references are more than welcome in a legal world swept along in a movement of, if not harmonization, at least “glocalization“, which helps right holders to have a better understanding of the legitimate expectations they can draw with regard to a given legal system.
“A review of the judgements on Section 79 in India shows that intermediaries in general have been given exemption in various fact situations including in the case of uploading of content by users, copyright infringement and violation of design rights. However, the position that is being considered in the present case i.e., violation of trade mark rights by ecommerce platforms and the extent of protection/exemption that is to be awarded to them as also the conditions under which the same are to be awarded, are yet to be gone into in extensor” (para. 54).
In other words, when it comes to marketplaces and e-commerce sites, everything has to be built!
This first step leads the court to consider whether a marketplace performing one or more of these tasks may qualify as an intermediary within the meaning of Article 2(w) (para 58). In other words, can such a platform be considered inactive, passive or merely technical? On the other hand, should such a platform be considered as playing an active role in the marketing and the sale of products? (ibid.).
“When an e-commerce website is involved in or conducts its business in such a manner, which would see the presence of a large number of elements enumerated above, it could be said to cross the line from being an intermediary to an active participant. In such a case, the platform or online marketplace could be liable for infringement in view of its active participation” (para. 63).
“Needless to add, e-commerce websites and online marketplaces ought to operate with caution if they wish to enjoy the immunity provided to intermediaries.” (ibid.).
“So long as they are mere conduits or passive transmitters of the records or of the information, they continue to be intermediaries, but merely calling themselves as intermediaries does not qualify all e-commerce platforms or online market places as one” (para 64).
In this case, the Dehli court considers that Darveys.com exercises full control over the products insofar as the platform is able to identify the sellers, select them, promote and sell the products. For the court, Darveys.com is much more than an intermediary (para 61).
Moreover, and in any event, similarly to the European and American legal systems, the exemption is not absolute. Indeed, the court of Dehli recalls that under Article 79(2)(b), to benefit from the exemption, the intermediary must not initiate the transmission, select the receiver of the transmission and select or modify the information contained in the transmission (para. 66). In these conditions, it is hard to see how Darveys.com could have benefited from the exemption.
The court also reiterated that the exemption from liability does not apply in the two situations set out in Article 79(3). The first (Article 79(3)(a)) excludes the exemption where, actively or by omission, the platform contributes to the performance of the illegal act. The second imposes due diligence on the Internet operator. In this regard, the court makes reference to the need to establish a policy and procedure for the removal of illegal content (para 68). Moreover, Article 3(2)(d) of the Information Technology (Intermediary Guidelines) Rules, 2011 specifically refers to intellectual property rights, including trademarks (para 69). The court states that these guidelines require intermediaries to enter into contractual relationships with their users, which must include clauses whereby users undertake not to infringe the intellectual property rights of third parties.
“any online market place or e-commerce website, which allows storing of counterfeit goods, would be falsifying the mark. Any service provider, who uses the mark in an invoice thereby giving the impression that the counterfeit product is a genuine product, is also falsifying the mark. Displaying advertisements of the mark on the website so as to promote counterfeit products would constitute falsification. Enclosing a counterfeit product with its own packaging and selling the same or offering for sale would also amount to falsification. All these acts would aid the infringement or falsification and would therefore bring the e-commerce platform or online market place outside the exemption provided under Section 79 of the IT Act.” (para. 77).
“The use of the mark, Christian Louboutin, the name, the photograph of the founder, without the permission of the Plaintiff, and without ensuring that the products which are sold are in fact genuine, would constitute violation of Plaintiff’s rights” (para. 79).
The court concludes that Darveys.com cannot be qualified as an intermediary that would be potentially eligible to the exemption provided by Article 79 of the Information Technology Act.
Finally, concerning the use of the “Louboutin” trademark in the source code, as meta tags, the court recalls that this practice, that of a free rider, dilutes the trademark (paras 80 and 81).
vi. It shall also seek a guarantee from the sellers that the product has not be impaired in any manner and that all the warranties and guarantees of the Plaintiff are applicable and shall be honoured by the Seller. Products of any sellers who are unable to provide such a guarantee would not be, shall not be offered on the Defendant’s platform.
These injunctions could replace the risk management consultation Darveys.com did not ask for before starting its business. In the United Stated, SunFrog also benefited from the judge’s advice in the recent Davidson c. SunFrog decision, with the difference that it was much more expensive! (see iptwins.com, June 27, 2018).
“It is alleged on behalf of Darveys.com that no plaintiff’s product was actually sold on its platform, although the website advertised and promoted the products under the plaintiff’s trademark. Thus, no order of damage/refunding of accounts or expenses is passed “.
IP Twins is an ICANN-accredited registrar with 15 years of experience in domain name strategy and management. We also offer anti-counterfeiting monitoring services. Our Detective monitoring software identifies counterfeits online. We collect evidence and remove counterfeits from over a hundred marketplaces platforms and social networks. Should you need to complete these investigations, our team based in China can help. Click here to contact us!

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Even with billions of dollars of funding and the cumulative knowledge and experience of over a hundred years of experimental pharmacology, de novo discovery of effective and safe therapeutics remains a costly and risky endeavor. The number of unsuccessful attempts to obtain Food and Drug Administration (FDA) approval of drugs for specific indications is far greater than the number of successes. As a result, there is an extensive and ever growing list of “failed” drugs, most of which are ultimately abandoned by pharmaceutical companies.
More recently, failed drugs previously considered to be lost causes are being reconsidered as possible therapies for different indications than those for which they had originally been considered. Such drug “repurposing” provides researchers and clinicians with a cost-effective way to identify potential new therapies without needing to start from scratch. Many failed drugs have already established their relative safety in Phase I clinical trials, which can simplify and reduce the cost of obtaining FDA approval should a new indication be found. Drug repurposing is not limited to failed drugs but is also being considered for currently marketed drugs as well as “off patent” generic compounds to expand and extend their usefulness.
But because drug repurposing primarily concerns previously-known drugs, obtaining patent protection can be challenging. In some cases, a drug to be repurposed is still protected by a patent that can be acquired and/or in-licensed, but often the drug itself is not protected by patent. Without patent protection, commercialization of a repurposed drug (i.e., maximizing the potential beneficial impact of the drug) is not realistic. This article discusses certain issues to be considered when trying to obtain new patent protection for repurposed drugs. It should be expected that each attempt to patent a repurposed drug will have its own fact-specific challenges. Accordingly, the concepts discussed here are generalized and non-exhaustive.
The foundational inquiry for determining whether a repurposed drug can be patented in the United States is to consider whether, under 35 U.S.C. § 101, the drug constitutes patentable subject matter. Section 101, in relevant part, provides: “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor …” Repurposed drugs are often non-nature-based compositions of matter (i.e., synthetic compounds that are not naturally occurring) that can be used in useful processes (e.g., methods of treating a disease by administering to a patient in need thereof a therapeutically effective dose of a drug). Therefore, claims directed to repurposed drugs and methods of their use should not typically run afoul of § 101. Even repurposed drugs that are nature-based compositions of matter may still be patentable, for example, if recited in a method of treatment claim. Indeed, method of treatment claims reciting nature-based compositions of matter seem to be on more secure footing under § 101 in light of the recent decision in Vanda Pharmaceuticals Inc. v. West-Ward Pharmaceuticals, at least because the United States Patent and Trademark Office has issued a recent memorandum to the Patent Examining Corps advising that the Patent Office intends to follow the legal reasoning in this case. Nevertheless, care must be taken when drafting claims to avoid § 101 issues.
Another significant hurdle to overcome with respect to patenting repurposed drugs is 35 U.S.C. § 102. Section 102, as applied to a repurposed drug, requires that it was not previously patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before a patent application is filed to cover the repurposed drug. In other words, a claim to the repurposed drug itself must be novel, in that it must recite something not previously publicly known. Practically speaking, most composition of matter claims reciting only the repurposed drug will be excluded from patentability under § 102, because (almost by definition for a “repurposed” drug) the drug was previously known and thus its earlier public disclosure would be prior art to any subsequent patent filing. Accordingly, composition claims directed to the repurposed drug itself will likely be anticipated because they are not reciting anything new. Yet there are ways to overcome § 102 to obtain composition claims on repurposed drugs.
Section 112 also requires an application to have one or more claims “particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.” Basically, § 112 requires that, at the time of filing, the written description must enable a skilled artisan to replicate the invention (much like a scientific paper should enable a researcher to replicate the experiments and data presented in the paper) and that the claims must be fully supported by the written description.
Careful patent application planning and drafting can avoid or overcome § 112 rejections. At a minimum, literal support for each claim should be provided, examples of various embodiments of the invention described (e.g., the repurposed drugs and indication, possible drug substitutions and/or derivatives, dosing amounts, dosage forms, excipients, dosing regimens, methods of treatment, etc.), and experimental data establishing drug effectiveness included. The written description should also be drafted with sufficient detail and distinct variations of the invention to permit claim amendments that can dispose of a prior art rejection (under either § 102 or 103). Indeed, all important details and variations of the invention envisioned must be included before filing because § 112 prohibits addition of “new matter” after filing.
 See Memorandum from Robert W. Bahr, Deputy Comm’r for Patent Examination Policy, to Patent Examining Corps (Jun. 7, 2018), available at https://www.uspto.gov/sites/default/files/documents/memo-vanda-20180607.PDF.
 Other important objective evidence of non-obviousness, also known as “secondary considerations,” includes evidence of commercial success, long-felt but unsolved needs, and failure of others. See Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17 (1966).


text:
Rehearing Denied June 28, 1993.
See U.S. , 113 S.Ct. 3066.
should apply to bar habeas review of Williams' Miranda claim.
against applying the Fourth Amendment exclusionary rule of Mapp v.
Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, on collateral review.
opportunity to present evidence bearing on that claim's resolution. Pp.
which WHITE, BLACKMUN, STEVENS, and KENNEDY, JJ., joined.
concurring in part and dissenting in part, in which THOMAS, J., joined.
Jeffrey Caminsky, Detroit, MI, for petitioner.
Seth P. Waxman, Washington, DC, for respondent.
report indicates that the officers arrested Williams at his residence. App. 12a13a, 24a-26a.
other, the officers decided not to advise Williams of his rights under Miranda v.
"You know everything that went down. You just don't want to talk about it.
told him where he had discarded the weapon and other incriminating items.
Williams maintained that he had not been present at the crime scene.
and during subsequent questioning made several more inculpatory statements.
N.W.2d 416 (1989). We denied the ensuing petition for writ of certiorari.
Williams v. Michigan, 493 U.S. 956, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989).
point and his receipt of the Miranda warnings. App. to Pet. for Cert. 49a-52a.
review. See Stone, supra, 428 U.S., at 494-495, n. 37, 96 S.Ct. at 3052-3053, n.
underlying Stone ); Kimmelman v. Morrison, 477 U.S. 365, 379, n. 4, 106 S.Ct.
exercise of federal-court jurisdiction under 28 U.S.C. 2254"); cf. 28 U.S.C.
854 (1973) (Powell, J., concurring)).
review such a claim on habeas imposed no great burdens on the federal courts.
Id., at 321-322, 99 S.Ct., at 2790-2791.
federal courts are to exercise their Fourteenth Amendment responsibilities"
would not likely raise tensions between the state and federal judicial systems.
accused's right to effective representation." Id., at 378, 106 S.Ct., at 2584.
purposes they were designed to serve, is in order.
U.S. 104, 109-110, 106 S.Ct. 445, 448-449, 88 L.Ed.2d 405 (1985).
attorney one will be appointed for him prior to any questioning if he so desires.
taken in violation of Miranda).
"particular solution for the inherent compulsions of the interrogation process,"
and left it open to a State to meet its burden by adopting "other procedures . . .
S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984); see Michigan v. Tucker, 417 U.S.
As we explained in Stone, the Mapp rule "is not a personal constitutional right,"
criminal process by improving the reliability of evidence introduced at trial.
the guilt or innocence of the defendant." 428 U.S., at 490, 96 S.Ct., at 3050.
in protecting a defendant's Fifth Amendment privilege against selfincrimination Miranda safeguards "a fundamental trial right." United States v.
'a shelter to the guilty,' is often 'a protection to the innocent.' " Murphy v.
12 L.Ed.2d 678 (1964) (citations omitted).
Ashcraft v. Tennessee, 322 U.S. 143, 153-154, 64 S.Ct. 921, 925-926, 88 L.Ed.
74 S.Ct. 716, 719, 98 L.Ed. 948 (1954); the defendant's maturity, Haley v.
S.Ct. 1338, 1341, 18 L.Ed.2d 423 (1967); physical condition, Greenwald v.
Miranda, but not the back.
question requiring an "independent federal determination" on habeas. Miller v.
Fenton, 474 U.S., at 112, 106 S.Ct., at 451.
occasional abuse that the federal writ of habeas corpus stands ready to correct."
Jackson, 443 U.S., at 322, 99 S.Ct., at 2791.
her insufficient notice to address a due process claim. Brief for RespondentAppellant in No. 90-2289, p. 6 (CA6). Petitioner pursues the objection here.
See Pet. for Cert. 1; Brief for Petitioner 14-15, n. 2.
and the case is remanded for further proceedings consistent with this opinion.
part and dissenting in part.
449, 83 S.Ct. at 854 (dissenting).
afford forever to question the correctness of its every judgment. "[T]he writ,"
however, "strikes at finality," McCleskey v. Zant, 499 U.S. ----, ----, 111 S.Ct.
justice require a federal court to forgo the exercise of its habeas corpus power."
long recognized that habeas corpus [is] governed by equitable principles"
relief until after state proceedings had terminated. Ex parte Royall, 117 U.S.
L.Ed.2d 269 (1992) (actual innocence of penalty); Murray v. Carrier, 477 U.S.
different occasions. Ante, at ____.
did the exclusionary rule claims at issue in Stone itself.
428 U.S., at 486, 96 S.Ct., at 3048 (quoting United States v. Calandra, 414 U.S.
truthfinding process and often frees the guilty." Id., at 490, 96 S.Ct., at 3050.
solely because a police officer bungled.
and fair opportunity to litigate.
prophylactic rule. See, e.g., McNeil v. Wisconsin, 501 U.S. ----, ----, 111 S.Ct.
203, 109 S.Ct., at 2879; New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct.
307, 105 S.Ct., at 1292.
Criminal Judgments, 38 U.Chi.L.Rev. 142, 163 (1970).
of an admittedly guilty individual who may pose a continuing threat to society."
Any rule that so demonstrably renders truth and society "the loser," McNeil v.
pay its way by deterring official lawlessness.' " United States v. Leon, 468 U.S.
rule on habeas "falls short" of justification. Ante, at ____.
concerns but find them misplaced nonetheless.
(quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct.
obtained without the benefit of Miranda's now-familiar warnings, should be.
The questions are not the same; nor are their answers.
1056, 1060, 108 L.Ed.2d 222 (1990)), is thus both correct and irrelevant.
93 S.Ct., at 2047 (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct.
voluntary, be excluded at trial. Miranda, 384 U.S., at 444, 86 S.Ct., at 1612.
conviction rested on an involuntary confession").
added)). On that much, our cases could not be clearer. See, e.g., Michigan v.
only from the prophylactic standards later laid down by this Court in Miranda."
habeas, surely they do so where there is no constitutional harm to remedy.
decisively against the Court's decision today.
[will] simply be recast" and litigated as voluntariness claims. Ante, at ____.
pressure, or mistreatment. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct.
me ironic. If the police have truly grown in "constitutional . . . sophistication,"
errors in the administration of Miranda's warnings are just that.
lines to be drawn with precision in each case.
confession outside the prosecution's case in chief, Harris v. New York, 401 U.S.
222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct.
compelled confessions but tainted subsequent confessions as well, Clewis v.
only one factor in determining voluntariness).
sovereignty; it diminishes only our justification for intruding in the first place.
against claims raised by federal prisoners under 28 U.S.C. 2255).
review might reveal flaws . . . that went undetected at trial and on appeal."
any reason to question the truth of Stone 's observation.
efficiency, and federalismcounsel in favor of the Court's chosen course.
Court's opinion but respectfully dissent from the remainder.
mocks our federal system to accord state convictions less respect.
require a claim of legal error in the original proceedings, compare Herrera v.
laws. It is impossible to widen this jurisdiction." Ex parte McCardle, 6 Wall.
318, 325-326, 18 L.Ed. 816 (1868).
U.S. 72, 90-91, 97 S.Ct. 2497, 2508-2509, 53 L.Ed.2d 594 (1977); Coleman v.
see Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886).
tempered by the restraints that accompany the exercise of equitable discretion.
shall appertain." 1 id., at 131.
tribunals of the Union and of the States," ibid.
extend habeas relief to all cases of state procedural default, the Court in Fay v.
Noia said: "Discretion is implicit in the statutory command that the judge . . .
equitable principles such as "finality," "comity," and "federalism." Brecht v.
As the Court today acknowledges, see ante, at ____, the rule of Stone v.
an innocent person) will ordinarily not exist.
defendant for violation of unconstitutional statute); Frank v. Mangum, 237 U.S.
67 L.Ed. 543 (1923) (same); Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct.
to say that such prior opportunity is no longer a relevant equitable factor.
or to the accuracy of the ultimate result.
the accuracy of the ultimate result.
v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).
profoundly wrong for several reasons.
proceedings there would be plenary federal review of all constitutional claims.
on habeas corpus. 117 U.S., at 253, 6 S.Ct., at 741. See Fay, 372 U.S., at 453454, 83 S.Ct., at 856-857 (Harlan, J., dissenting). See also Schneckloth v.
filed after state conviction, Royall cited Ex parte Lange, 18 Wall. 163, 21 L.Ed.
says all state courts are bound by, and all state judges must be sworn to uphold.
demeaning to the States in its consequences, and must be eliminated.
Miranda claim on habeas corpus.
consequently extended to those statements as well. App. to Pet. for Cert. 72a75a.
petition be precluded?"), and we see no good reason to address it in this case.
Constitution or laws or treaties of the United States."
We have in the past declined to address the application of Stone in this context.
S.Ct. 2497, 2506, n. 11, 53 L.Ed.2d 594 (1977).
organizations. See Brief for the Police Foundation et al. as Amici Curiae.
cert. denied, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988); Cobb v.
(drunk driver questioned at accident scene before arrest; not in custody), cert.
denied, 498 U.S. 1014, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990).
(defendant volunteered information without questioning), cert. denied, 495 U.S.
904, 110 S.Ct. 1923, 109 L.Ed.2d 287 (1990); United States ex rel. Church v.
finding condom filled with white powder, constituted interrogation), cert.
invocation of right to silence), cert. denied, 484 U.S. 1077-1078, 108 S.Ct.
of contact waived previous invocation of rights).
S.Ct. 3037, 3067, 49 L.Ed.2d 1067 (1976) (Brennan, J., dissenting).

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text:
Corning, Peter. Nature's Magic. Synergy in Evolution and The Fate of Humankind. Cambridge. Cambridge University Press. 2003. Octavo. Hard cover. First edition. Fine copy (remainder mark, bottom edge) in fine dust jacket (in mylar).
Cornwell, John (ed. Nature's Imagination. The Frontiers of Scientific Vision. A Debate on the Future of Science. Oxford. Oxford University Press. 1995. Octavo. Hard cover. First edition. Illustrated. Review copy. Fine copy in fine dust jacket (in mylar).
Cornwell, John. The Power to Harm. Mind, Medicine and Murder on Trial. New York. Viking Press. 1996. 320 pps. Octavo. Hardcover. First edition. Fine copy in near fine dust jacket (in mylar).
Corrigan, Timothy. New German Film. The Displaced Image. Austin. University of Texas Press. 1986. 213 pps. Octavo. Soft cover. Reprint. Illustrated. Fine copy.
Corry, P. Lighting the Stage. London. Sir Isaac Pitman & Sons. 1964. 156 pps. Octavo. Hardcover. Reprint. Illustrated. Near fine copy. Light soiling to front cover, front end paper missing.
Corss, Donna. Word Abuse. How the Words we Use Use Us. New York. Coward McCann. 1979. 232 pps. Octavo. Hardcover. First edition. Fine copy in near fine dust jacket (in mylar).
Corti, Count Egon Caesar (1886-1953). The Rise of the House of Rothschild. Translated from the German by Brian and Beatrix Lunn. Belmont. Western Islands. Cosmopolitan. 1972. 430 pps. Octavo. Soft cover. Reprint. Fine copy.
Cosentino, Geraldine. Carnival Glass. Racine. Golden Press. 1976. 125 pps. Octavo. Soft cover. First edition. Illustrated in color and black & white. Fine copy.
Costa, Carol. The Complete Idiot's Guide to Surviving Bankruptcy. np. Alpha. 2002. 4to. Soft cover. Illustrated. Fine copy.
Costonis, John. Icons and Aliens. Law, Aesthetics, and Environmental Change. Urbana. University of Illinois. 1989. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Cotner, June. Bedside Prayers. Prayers & Poems for When You Rise and Go to Sleep. San Francisco. Harper. 1997. Octavo. Hard cover. First edition. Illustrated. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Cotterell, Arthur (ed). Encyclopedia of World Mythology. Bath. Dempsey Parr. 1999. 4to. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
Cotterell, Arthur (ed). The Encyclopedia of Ancient Civilizations. New York. Mayflower. 1980. 367 pps. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in near fine dust jacket (in mylar).
Cotterell, Arthur (ed). The Encyclopedia of Ancient Civilizations. New York. Mayflower. 1980. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Coulombe, Charles. Haunted Castles of the World. Ghostly Legends and Phenomena from Keeps and Fortresses Around the Globe. Guilford. Lyons. 2004. Octavo. Soft cover. First edition. Fine copy.
Coulson, John (ed). The Saints. A Concise Biographical Dictionary. New York. Hawthorne. 1958. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in edge chipped dust jacket (in mylar).

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