text:
A. Lambert. Visualisation interactive de graphes : élaboration et optimisation d'algorithmes à coûts computationnels élevés. PhD thesis, Université Sciences et Technologies - Bordeaux I, 2012.
R. Assar, F. Vargas, and D. J. Sherman. Reconciling competing models: a case study of wine fermentation kinetics. In K. Horimoto, M. Nakatsui, and N. Popov, editors, Algebraic and Numeric Biology 2010, volume 6479 of Lecture Notes in Computer Science, pages 68-83. Springer, 2012.
M. Nadal and G. Melançon. Dessin de graphe assisté par un algorithme génétique. In A. Etien, editor, 9ème édition de la conférence MAnifestation des JEunes Chercheurs en Sciences et Technologies de l'Information et de la Communication - MajecSTIC 2012 (2012), 2012.
P. Thebault. A multi-objective heuristic integrating biological data for flux analysis in metabolic networks. In Open Source Software for Systems, Pathways, Interactions and Networks (SPIN-OSS) retreat being held at the Wellcome Trust Genome Campus, EBI, 2012.
A. Lambert and D. Auber. Graph analysis and visualization with tulip-python. In EuroSciPy 2012 - 5th European meeting on Python in Science, 2012.
A. Lambert, F. Queyroi, and R. Bourqui. Visualizing patterns in node-link diagrams. In 16th International Conference on Information Visualisation (IV'12), pages 48-53, 2012.
J. Dubois, L. Cottret, A. Ghozlane, D. Auber, F. Bringaud, P. Thebault, F. Jourdan, and R. Bourqui. Systrip: a visual environment for the investigation of time-series data in the context of metabolic networks. In 16th International Conference on Information Visualization (IV'12), page 4771a204, 2012.
T. Martin and P. Durrens. Feedback in the management of genomic data in the gdr génolevures. In ICY2012 13th International Congress on Yeasts, 2012.
T. Martin and P. Durrens. Génolevures : Politique d'annotation automatique des génomes de levures (yaga). In 10e rencontre Levures Modèles & Outils, 2012.
L. Bourgeade, T. Martin, A. Goulielmakis, A. Lonvaud-Funel, P. Lucas, and E. Bon. Cracking the pseudome code: Inside the "silent" psi-genes language to reconstruct oenococcus oeni evolutionary adaptation to wine. In U. C. VetAgroSup, editor, 18th CBL-Club des Bactéries Lactiques Meeting, 2012.
L. Bourgeade, T. Martin, and E. Bon. Pseudoe: A computational method to detect psi-genes and explore pseudome dynamics in wine bacteria from the oenococcus genus. In D. T. François Cost, editor, JOBIM2012- 13ème Journées Ouvertes en Biologie, Informatique et Mathématiques, pages 435-436. SFBI, INRIA, 2012.
A. Ghozlane, J. Dubois, I. Dutour, R. Bourqui, M. Breton, and P. Thebault. irna: Integrative pipeline for genome-wide detection of srna targets. In "Autour des ARNs non codant" - Rencontre bioinformatique 2012, 2012.
R. Assar, M. A. Montecino, and D. J. Sherman. Stochastic modeling of complex systems and systems biology: From stochastic transition systems to hybrid systems. In XII Latin American Congress of Probability and Mathematical Statistics, 2012.
F. Zaidi and G. Melançon. Topological decomposition and heuristics for high speed clustering of complex networks. In Hermann, editor, Extraction et Gestion de Connaissance, 2012, volume RNTI-E-23, pages 447-458, 2012.
F. Queyroi. Validation et optimisation d'une décomposition hiérarchique de graphes. In 12e Conférence Internationale Francophone sur l'Extraction et la Gestion des Connaissances, 2012.
A. Benzakour, S. Maabout, M. Mosbah, and M. Sistiaga. Uncertainty interval temporal sequences extraction. In 6th Int. Conf. on Information Systems, Technology and Management (ICISTM), number 285 in Com. Comp. Info. Science (CCIS), pages 259-270. Springer, 2012.
A. Gouliemakis, J. Bridier, A. Barré, O. Claisse, D. Sherman, P. Durrens, A. Lonvaud-Funel, and E. Bon. How does oenococcus oeni adapt to its environment? a pangenomic oligonucleotide microarray for analysis o. oeni gene expression under wine shock. In P. Univ. Bordeaux Segalen (Darriet, L. Geny, P. Lucas, A. Lonvaud, G. de Revel, and . P. L. Teissedre, editors, OENO2011- 9th International Symposium of Oenology, pages 358-363. Dunod, Paris, 2012.
A. Benzakour, S. Maabout, M. Mosbah, and M. Sistiaga. Extraction de séquences fréquentes avec intervalles d'incertitude. In Conférence Internationale Francophone sur l'Extraction et la Gestion de Connaissance (EGC), RNTI (Revue des nouvelles technologies de l'information), page 12 pages. Hermann, 2012.
E. Garnaud, S. Maabout, and M. Mosbah. Using functional dependencies for reducing the size of a data cube. In Springer, editor, International Symposium on Foundations of Information and Knowledge Systems, LNCS 7153, pages 145-164, 2012.
G. Sacomoto, J. Kielbassa, R. Chikhi, R. Uricaru, P. Antoniou, M.-F. Sagot, P. Peterlongo, and V. Lacroix. Kissplice: de-novo calling alternative splicing events from rna-seq data. BMC Bioinformatics, 13(Suppl 6), 2012.
N. Loira, T. Dulermo, J.-M. Nicaud, and D. Sherman. A genome-scale metabolic model of the lipid-accumulating yeast yarrowia lipolytica. BMC Systems Biology, 6(1):35, 2012.
V. Dupuy, L. Manso-Silván, V. Barbe, P. Thebault, E. Dordet-Frisoni, C. Citti, F. Poumarat, A. Blanchard, M. Breton, P. Sirand-Pugnet, and F. Thiaucourt. Evolutionary history of contagious bovine pleuropneumonia using next generation sequencing of mycoplasma mycoides subsp. mycoides "small colony". PLoS ONE, 7(10), 2012.
A. Zhukova, R. Adams, C. Laibe, and N. Le Novère. Libkisao: a java library for querying kisao. BMC Research Notes, 5:520, 2012.
A. Ghozlane, F. Bringaud, H. Soueidan, I. Dutour, F. Jourdan, and P. Thebault. Flux analysis of the trypanosoma brucei glycolysis based on a multi-objective criteria bioinformatic approach, advances in bioinfromatics, 2012, in press. international conference with published acts. Advances in Bioinformatics, 2012:16 pages, Article ID 159423, 2012.
F. El Gharniti, M. Dols-Lafargue, E. Bon, O. Claisse, C. Miot-Sertier, A. Lonvaud-Funel, and C. Le Marrec. Is30 elements are mediators of genetic diversity in oenococcus oeni. International Journal of Food Microbiology, 158(1):14-22, 2012.
G. Sacomoto, J. Kielbassa, R. Chikhi, R. Uricaru, P. Antoniou, M.-F. Sagot, P. Peterlongo, and V. Lacroix. Kissplice: de-novo calling alternative splicing events from rna-seq data. BMC Bioinformatics, 13:1-12, 2012.
F. Tardy, E. Baranowski, L.-X. Nouvel, V. Mick, L. Manso-Silvàn, F. Thiaucourt, P. Thébault, M. Breton, P. Sirand-Pugnet, A. Blanchard, A. Garnier, P. Gibert, Y. Game, F. Poumarat, and C. Citti. Emergence of atypical mycoplasma agalactiae strains harbouring a new prophage and associated with a mortality episode of alpine wild-ungulates. Appl Environ Microbiol, 2012.
S.-A. Sansone, P. Rocca-Serra, D. Field, E. Maguire, C. Taylor, O. Hofmann, H. Fang, S. Neumann, W. Tong, L. Amaral-Zettler, K. Begley, T. Booth, L. Bougueleret, G. Burns, B. Chapman, T. Clark, L.-A. Coleman, J. Copeland, S. Das, A. De Daruvar, P. De Matos, I. Dix, S. Edmunds, C. T. Evelo, M. J. Forster, P. Gaudet, J. Gilbert, C. Goble, J. L. Griffin, D. Jacob, J. Kleinjans, L. Harland, K. Haug, H. Hermjakob, S. J. Ho Sui, A. Laederach, S. Liang, S. Marshall, A. Mcgrath, E. Merrill, D. Reilly, M. Roux, C. E. Shamu, C. A. Shang, C. Steinbeck, A. Trefethen, B. Williams-Jones, K. Wolstencroft, I. Xenarios, and W. Hide. Toward interoperable bioscience data. Nature Genetics, 44(2):121-6, 2012.
B. Pinaud, G. Melançon, and J. Dubois. Porgy: A visual graph rewriting environment for complex systems. Computer Graphics Forum, 31(3):1265-1274, 2012.
R. Assar, A. V. Leisewitz, A. Garcia, N. C. Inestrosa, M. A. Montecino, and D. J. Sherman. Reusing and composing models of cell fate regulation of human bone precursor cells. BioSystems, 108(1-3):63-72, 2012.
E. Garnaud, S. Maabout, and M. Mosbah. Les dépendances fonctionnelles pour la sélection de vues dans les cubes de données. Journal of Decision Systems, 21(1):71-91, 2012.
J. Allali, C. Saule, C. Chauve, Y. D'Aubenton-Carafa, A. Denise, C. Drevet, P. Ferraro, D. Gautheret, C. Herrbach, F. Leclerc, A. De Monte, A. Ouangraoua, M.-F. Sagot, M. Termier, C. Thermes, and H. Touzet. Brasero: A resource for benchmarking rna secondary structure comparison algorithms. Advances in Bioinformatics, 2012(893048):5 pages, 2012.

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


text:
On September 5, 2018, in Hoffas v. American Seafoods Company, King County Superior Court Cause No. 17-2-01150-9 SEA, a King County Superior Court judge held that American Seafoods was “. . . negligent for failing to provide [the injured seaman] with a safe place to work on March 2, 2016 because the access to the mid-ship crane control was not reasonably safe, violated the company’s own policies, and violated relevant industry standards, without handholds . . .” on board the F/T AMERICAN DYNASTY.
The Ladder Violates American Seafoods’ Own Safety Standards.
On Saturday, the Seattle-based crab boat F/V DESTINATION went missing in the Bering Sea, approximately two miles off of St. George Island, with six crewmembers aboard. St. George Island is located about 650 miles west of Kodiak Island, and has approximately 100 residents. The DESTINATION was on its way to begin the snow crab season.
The vessel’s emergency locator beacon (EPIRB) was activated at 6:11 a.m. on Saturday, and the U.S. Coast Guard and volunteers searched for nearly three days for the vessel and crew, without success. The EPIRB can be activated manually, or activates automatically upon hitting sea water. The Coast Guard received no mayday call from the vessel, which has led to speculation that whatever befell the vessel happened quickly. Volunteer vessels assisted the Coast Guard search, as well as individuals on ATVs along the shoreline of St. George Island. There are high cliffs along the shore of St. George, which provided volunteers a vantage point to look out to sea for evidence of the DESTINATION or debris from the vessel.
Search crews reported 30 mph winds, five to eight-foot waves, and air temperature of 20 degrees. The Bering Sea is known for bad weather this time of year. In such temperatures, ice can build up on a boat, reducing stability and buoyancy.
Report Your Injury. If you get injured on a factory trawler, you need to report the injury as soon as possible in writing. Some leads or supervisors will try to delay or discourage you from filling out an accident report in order to limit the number of claims filed against the company. You should insist on filling out an accident report immediately. Remind your supervisor that company policy requires you to fill out an accident report following an injury.
Fill Out An Accident Report. Fill out an accident/incident report even if you believe the injury will resolve quickly. Some injuries that you initially believe will resolve quickly can turn into larger issues that may lead to surgery. You are not a doctor and don’t know if your injury will become more serious than you believe at first. If you fail to fill out an accident/incident report in a timely manner, the company may try to deny your claim because you did not report it.
Maintenance is a daily stipend intended to cover the room-and-board expenses of a maritime worker injured in the service of a vessel, including seafood processing and deckhands on factory trawlers owned by American Seafoods Company. An injured worker is entitled to maintenance payments until the worker reaches maximum medical improvement from the injury. Based on contracts it drafted, American Seafoods has callously taken the position that injured workers are entitled to only $30.00 per day for maintenance payments while they recover from injuries sustained on its vessel, regardless of whether their actual room-and-board expenses exceed $30.00 per day. Other seafood processing companies have allowed for higher living maintenance rates based on an employee’s actual room-and-board expenses. American Seafoods’ position against its own workers has now been rejected in cases brought by our clients in both state and federal courts in Washington.
On November 28, 2016, King County Superior Court Judge Sue Parisien ordered American Seafoods to pay maintenance of $78.43 per day to an injured seafood processor represented by Kraft Davies PLLC while he recovered from partial knee replacement surgery due to an injury at work. In ruling against American Seafoods, Judge Parisien ruled: “American Seafoods has not cited any valid basis in fact or law allowing it to limit plaintiff’s maintenance rate to $30 per day, when plaintiff’s actual room and board expenses total $78.43 per day.” Order Granting Plaintiff’s Motion for Attorney’s Fees Incurred in Pursuing Unpaid Maintenance at 3 ll. 7-10. The Court further ruled: “American Seafoods’ ongoing denial of maintenance, which forced plaintiff to hire counsel to pursue benefits which he is plainly owed, is willful.” Id. The court went on to award the injured seafood processor attorneys’ fees for the cost of increasing his maintenance rate from $30.00 per day to $78.43 per day.
This is the second time this year that a court has rejected American Seafoods’ attempts to limit maintenance payments to $30 per day and provides hope to injured workers who struggle to meet their expenses while off work due to an injury on an American Seafoods vessel. Earlier this year in Sabow v. American Seafoods Company, USDC Western District of Washington Case No. C16-0111-JCC, the Honorable John C. Coughenour ruled that American Seafoods could not limit maintenance payments to $30 per day and must reimburse injured workers based on their reasonable actual room-and-board. American Seafoods has now appealed the issue to the Ninth Circuit Court of Appeals.
On Friday, December 6, 2016, at 9:38 p.m., the crew of the F/V Exito contacted the U.S. Coast Guard reporting that they were taking on water 14 miles northeast of Dutch Harbor. Five crew members were aboard when the vessel sank and a nearby vessel, the Afognak Strait, was able to rescue three crew members from the water. The U.S. Coast Guard responded with the Coast Guard cutter Alex Haley and a Jayhawk helicopter from Air Station Kodiak. Unfortunately, the other two crew members were not found and remain missing.
After searching for the crew for three days, the U.S. Coast Guard called off the search on December 9. Our thoughts and prayers go out to the families of the missing crewmembers of the F/V Exito. The investigation into the details of the sinking of the F/V Exito remain under investigation by the U.S. Coast Guard.
The crew of the F/V Exito is covered under the Jones Act. If you have questions about your right to compensation under the Jones Act, contact our experienced maritime injury and death attorneys for a free consultation.
On November 9, the U.S. Coast Guard received a request for a medevac from F/V BLUE NORTH, a Seattle-based fishing company, when a 41-year-old crew member sustained a neck injury while working on the vessel. Neck and spinal injuries can be serious and can lead to permanent disabilities. Due to the nature of the injury, a U.S. Coast Guard flight surgeon recommended an emergency medevac from the vessel to a trauma center. At the time of the incident, the vessel was approximately 285 miles northwest of St. Paul in the Bering Sea and steamed toward shore to meet the helicopter. Taking off from Air Station Kodiak, a Jayhawk helicopter flew to Cold Bay to hoist the injured fisherman off the fishing vessel and the crew member was transported to the hospital for emergency evaluation and treatment.
At this point, there are no details about the cause of the crew member’s injury. Fishermen injured on fishing vessels are entitled to coverage under the federal Jones Act, which covers seamen, fishermen, and other maritime workers injured on boats and ships. Under the Jones Act, an injured fisherman may be entitled to lost wages and damages for pain, disability, and loss of enjoyment of life.
If you are injured on a fishing vessel, it is important that you notify your employer of the injury and fill out an incident report. In the report, you should describe exactly how you were injured, what unsafe condition contributed to your injury, and provide the names of all witnesses that were present at the scene of your injury. It is important that you obtain prompt medical attention following an injury. You have the right to select your own medical providers and do not have to go to doctors selected by the fishing company. While you receive medical treatment for your injuries, the company has an obligation to pay you a daily stipend called “maintenance” to cover your room-and-board expenses on land. The company is also obligated to pay for all medical expenses related to your injury or illness that are designed to improve your condition.
If you have been injured while working on a vessel, you may wonder if you can get your maintenance rate increased from what is set forth in your employment contact. The short answer is “yes” in many circumstances. For example, what if your employer’s contract set forth a maintenance rate of only $30 per day but your actual room-and-board expenses were $70 per day. A seaman or fisherman is entitled to actual reasonable room-and-board expenses while recovering from an injury or illness on land in most situations.
Under general maritime law, a shipowner has a duty to provide maintenance and cure to a seaman who “becomes ill or is injured while in the service of the ship.” Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S. Ct. 1381, 43 L. Ed. 2d 682 (1975); Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 76, 272 P.3d 827 (2012). “Maintenance” is a per diem living allowance for food and lodging comparable to what the seaman is entitled to while at sea; “cure” is payment of medical expenses incurred in treating the seaman’s injury or illness. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82 L. Ed. 993 (1938); Clausen, 174 Wn.2d at 76. The shipowner’s duty to pay maintenance and cure “continues until the seaman . . . reaches the point of maximum medical recovery.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-28, at 393 (4th ed. 2004) (citing Farrell v. United States, 336 U.S. 511, 522-23, 69 S. Ct. 707, 93 L. Ed. 850 (1949)). “‘Maximum medical cure’ is reached when the seaman recovers from the injury, the condition permanently stabilizes or cannot be improved further.” McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452, 459 (E.D.N.Y. 1995). . .
The 2016 Alaska salmon harvest is seeing a sharp decline from 2015, but one species is helping to save the summer fishing season. According to the Alaska Department of Fish and Game, the projected total catch for salmon during the summer of 2016 is 161 million, down 40 percent from 2015’s harvest of over 268 million salmon. To date in 2016 there has been about 88 million salmon caught. One bright spot for Alaska fishing during the 2016 salmon fishing season has been the sockeye salmon, which is projected to have a total harvest that will rank in Alaska’s all-time top ten for sockeye. While other salmon species have had low catch numbers, thus far the sockeye salmon harvest has surpassed 51 million. Bristol Bay has received a sockeye salmon catch so far of 38 million, greatly exceeding expectations, and will likely result in the largest sockeye harvest there in over 20 years.
The large decline in 2016 for Alaska total salmon harvest can be contributed to the significant decline in pink salmon harvest statewide; an estimated 90 million will be caught this year, while 190 million were caught in 2015. Some fishing areas, such as the Kodiak, are seeing the slowest pink salmon harvest since the 1970’s. Other notable Alaska salmon harvests thus far include the following: red salmon, nearly 48 million – down 7 million from last year; silver salmon, 4.4 million – up by 500,000; and chum salmon, 19 million – up by 500,000.
While Alaska salmon fishing is one of Alaska’s most important industries, with an annual average harvest exceeding 150 million fish sold by commercial fishermen, it can also be a very dangerous occupation. The National Institute for Occupational Safety and Health found that during the decade of 2000-2009, salmon fishery experienced the most occupational deaths within commercial fishing in the United States, with 39 fatalities.

matches:
v.
v.
v.
v.
v.
§ 6
v.
v.


UNITED STATES OF AMERICA, Plaintiff, v. CYNTHIA J. GERARD, ROBERT E. GERARD, and TREASURER, ALLEN COUNTY, INDIANA, Defendants.
On March 5, 2014, the United States of America filed a Complaint [ECF No. 1] against Defendants Cynthia J. Gerard, Robert E. Gerard, and the Treasurer of Allen County, Indiana seeking unpaid taxes and a judgment that the United States can enforce collection against the property of Robert Gerard, which was formally owned by Robert and Cynthia Gerard as tenants by the entirety. On November 23, 2015, the Plaintiff filed a Motion for Summary Judgment [ECF No. 27], which was denied on September 8, 2016 [ECF No. 37]. On August 10, 2017, this case was transferred to Chief Judge Theresa L. Springmann for all further proceedings [ECF No. 38]. The Plaintiff filed a Motion for Partial Reconsideration [ECF No. 43] of the prior Summary Judgment Order under Rule 54(b), which the Court granted [ECF No. 49] on October 23, 2017; however, the Court declined to consider the merits of the Plaintiff's substantive arguments at that time because the Defendants had briefed only the procedural propriety of the Motion rather than responding substantively. On November 29, 2017, the Court held a telephonic scheduling conference and set a briefing schedule for the merits of the Plaintiff's Motion. This matter is now fully briefed and ripe for review.
In 1990, Robert and Cynthia Gerard bought residential real property ("the Property") as husband and wife, which they owned as tenants by the entirety, and for which Robert paid at least ninety percent of the purchase price. From 2003 through 2008, Cynthia owned and operated a limited liability company as its sole member. Under the applicable regulations, the company was treated as a sole proprietorship for federal tax purposes. Over the years, Cynthia and her company incurred employment and unemployment tax liabilities, some of which remain unpaid. The Plaintiff and the Gerards dispute the amount of unpaid taxes but agree that unpaid taxes exist. The parties do not seem to dispute that all but two of the assessments associated with these claims liabilities attached to Cynthia's interest in the Property prior to its conveyance to Robert.
In its Motion for Summary Judgment [ECF No. 27], the Plaintiff addressed three issues. First, the Plaintiff asked for a determination regarding the amount of taxes owed. Second, the Plaintiff requested a ruling that the tax liens that arose upon assessment of the unpaid tax liabilities attached to Cynthia's interest in the Property and remain attached to a one-half interest in the Property despite its conveyance to Robert. Finally, the Plaintiff asked that the tax liens be enforced against the Property via a sale of the entire Property pursuant to 26 U.S.C. § 7403.
The Gerards responded that the Plaintiff had not submitted sufficient documentation to support its assertions regarding the amount of taxes owed and that the documents that the Plaintiff did submit were contradictory to the Plaintiff's claims. Therefore, the Gerards argued, there remains a genuine issue of material fact regarding the amount allegedly due. The Gerards also argued that because Robert qualifies as a "purchaser" under 26 U.S.C. § 6323(a), any lien that attached to Cynthia's interest in the Property prior to its conveyance to Robert is no longer valid. But, even if the Court were to find the liens valid as against the Property, the Gerards argued that the Court should exercise its equitable discretion and decline to enforce those liens against the Property.
In reply, the Plaintiff explained the apparent discrepancies in the amounts claimed in its brief with the amounts listed in the supporting documentation, specifically referencing credits applied to the balances and interest accruals. The Plaintiff also argued that, as a matter of law, Robert was not a "purchaser" under § 6323(a) because there was no consideration for the transfer of Cynthia's interest. Finally, the Plaintiff argued that the balance of the equities weighed in favor of enforcing the liens via a sale of the Property rather than against it.
After the denial of the Plaintiff's Motion and the subsequent transfer of the case to this Court, the Plaintiff moved for partial reconsideration as to the amount of taxes owed and whether the tax liens survived the conveyance of the Property to Robert. The Plaintiff did not ask for reconsideration of the issue regarding the equitability of a forced sale of the Property, conceding that there remain factual disputes that are reserved for the trier of fact. The Court now reconsiders these issues.
The Court explained its reasoning for determining that reconsideration was procedurally appropriate in its October 23, 2017, Order and Opinion [ECF No. 49].
Summary judgment is proper where the evidence of record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to "go beyond the pleadings" to cite evidence of a genuine factual dispute that precludes summary judgment. Id. at 324. "[A] court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in its favor on a material issue, then the Court must enter summary judgment against it. Id.
There appears to be no dispute that Cynthia is personally liable for some amount of unpaid taxes, that the assessments were properly made, and that the taxes remain unpaid after the IRS properly sent a notice and demand for payment to Cynthia. Rather, the dispute on this issue centers on whether the Plaintiff has sufficiently proven the amount of taxes that remain unpaid and due.
In its Motion for Partial Reconsideration, the Plaintiff included a table that detailed the assessments and amounts due for each tax period for which Cynthia's taxes are delinquent. (See Pl. Mem. in Support of Mot. for Part. Recon. 5-8, ECF No. 44.) Each row of the table includes the end-date of the relevant tax period; the date that a Form 941 was filed; assessment dates and types, including credits; assessed and accrued amounts; and a balance due as of September 20, 2017. The numbers reflected in the table are derived from IRS computer records and are certified as true by Revenue Officer Matthew B. Spickelmier, who submitted an affidavit in support of the Plaintiff's argument. (See ECF No. 43-1.) Mr. Spickelmier attached relevant computer records to his affidavit. Forms 4340, which were submitted with the Plaintiff's original Motion for Summary Judgment (see ECF No. 27-4), also evidence entries into the IRS's computer system as of November 6, 2013.
The Court disagrees with the Defendants. Certificates of Assessments and Payments, such as those supporting the Plaintiff's claim (see ECF No. 27-4), "establish the fact of assessment and carry with them a presumption of validity and that the assessments they reflect were properly made." Hefti v. I.R.S., 8 F.3d 1169, 1172 (7th Cir. 1993). The Gerards have not argued that the Certificates that the Plaintiff has produced are invalid. Mr. Spickelmier explained that he used the Certificates along with more recent Account Transcripts to account for the continuing accrual of interest and penalties and to make a determination as to the amount owed as of September 20, 2017. He also attached results from a "Payoff Calculator" that he used to verify the amounts owed, which reflects the same balances claimed in the Plaintiff's brief.
The Certificates were prepared on November 6, 2013, but the Spickelmier affidavit was not executed until September 22, 2017.
The Gerards point to the account balance listed on the Account Transcripts for their contention that the balances conflict with those claimed by the Plaintiff. However, the Account Transcripts state "this is not a payoff amount," meaning that the balance reflected in those records at the time they were prepared did not necessarily reflect the most recent statutory accruals. As a result, Mr. Spickelmier could not rely solely on the balances listed on the Account Transcripts and was required to calculate the exact balances due using multiple sources of information. This is evidenced by the fact that the Account Transcripts, although retrieved on September 20, 2017, show interest accruals through October 2, 2017. Thus, as would be expected, the balances shown on the Account Transcripts are marginally higher than the balances claimed by the Plaintiff due to an extra two weeks' worth of accruals.
"At summary judgment . . . saying so doesn't make it so; summary judgment may only be defeated by pointing to admissible evidence in the summary judgment record that creates a genuine issue of material fact." United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010). The nonmoving party cannot rest on bare pleadings alone but instead must use the evidentiary tools listed in Rule 56 to designate specific material facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). In this case, the Gerards have failed to point to any evidence that contradicts the Plaintiff's assertion regarding the amounts owed. Nor does the Court find that a reasonable trier of fact could conclude that the Plaintiff has failed to prove the amounts due. Therefore, the Court will grant the Plaintiff's Motion for Partial Reconsideration as to this issue. The Gerards owe outstanding employment tax liabilities in the amount of $60,969.04, plus statutory accruals from September 20, 2017, and outstanding unemployment tax liabilities in the amount of $293.73, plus statutory accruals from September 20, 2017.
The next question is whether, having determined the amount of Cynthia Gerard's outstanding tax liabilities, the resultant liens that attached to her interest in the Property survived the severance of the Gerards' tenancy by the entirety when Cynthia conveyed her interest in the Property to Robert. The parties do not appear to dispute that all but the last two assessments associated with these claimed liabilities attached to Cynthia's interest in the property prior to its conveyance to Robert. 1. Whether Robert Gerard is a "Purchaser"
[a] person who, for adequate and full consideration in money or monies worth, acquires an interest (other than a lien or security interest) in property which is valid under local law against a subsequent purchaser without actual notice.
tangible or intangible property, services and other consideration reducible to a money value. Money or money's worth also includes any consideration which otherwise would constitute money or money's worth . . . which was parted with before the security interest would otherwise exist if, under local law, past consideration is sufficient to support an agreement giving rise to a security interest and provided that the grant of the security interest is not a fraudulent transfer under local law or 28 U.S.C. § 3304(a)(2). A firm commitment to part with money, a security, tangible or intangible property, services, or other consideration reducible to a money value does not, in itself, constitute a consideration in money or money's worth. A relinquishing or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights is not a consideration in money or money's worth. Nor is love and affection, promise of marriage, or any other consideration not reducible to a money value a consideration in money or money's worth.
The Gerards argue that Robert is a purchaser because Cynthia used their joint marital assets to pay her individually-owned business's expenses and transferred her interest in the Property in repayment of those debts. In their Response to the Plaintiff's Motion for Partial Reconsideration, the Gerards also assert that consideration was given by way of a release by Robert of his claim against Cynthia for the repayment of the transferred assets. (See Def. Resp. Br. 9, ECF No. 56.) The Plaintiff argues that the deed transferring title to Robert specified that the transfer was made "by way of gift and without any consideration other than for love and affection" and that the Gerards may not now disavow that deed and claim that consideration was tendered for the conveyance. The Plaintiff also argues that any consideration for the transfer would have been past consideration, which is insufficient.
"The determination of whether consideration was 'full and adequate,' and if an individual is a 'purchaser' are matters of federal, not state, law." United States v. Sweeny, 418 F. Supp. 2d 492, 497 (S.D.N.Y. 2006) (citation omitted); see also United States v. McCombs, 30 F.3d 310, 330 (2d Cir. 1994)). "The question of adequacy of consideration typically turns on factual issues," and "[t]he burden of proof as to adequate consideration rests on the party seeking purchaser status." United States v. Bartle, No. IP01-0768-C, 2002 WL 75437, at *3 (S.D. Ind. Jan. 16, 2002) (citations omitted).
"It is a well-known fact that often a conveyance recites a nominal consideration whereas the true consideration is not nominal. It is therefore never certain that the recited consideration is the true consideration." Clark v. CSX Transp., Inc., 737 N.E.2d 752, 759 (Ind. Ct. App. 2000) (internal quotation omitted). Parol evidence is "always competent to prove . . . the true consideration of a deed." Guckenberger v. Shank, 37 N.E.2d 708, 712 (Ind. Ct. App. 1941) (en banc) (citations omitted); see also Kenney v Phillipy, No. 10,664, 1883 WL 5716, at *1 (Ind. Sept. 19, 1883) ("Few rules are better settled than that which declares that the question of consideration is not closed by the recitals of the deed, and that the true consideration may always be shown by parol evidence."); Swope v. Forney, 17 Ind. 385, 389 (Ind. 1861) ([T]he writing is not conclusive upon the subject. The truth may be inquired into."); Nichols, Shepherd & Co. v. Burch, 27 N.E. 737, 739 (Ind. 1891) (noting that "either party might show the true consideration for any purpose . . . although it might be entirely different from that expressed in the deed").
The deed conveying the property from the Gerards, as tenants by the entirety, to Robert, individually, states that it is "by way of gift and without any consideration other than for love and affection . . . ." (R. Gerard Aff. Ex. 3, ECF No. 56-4.) However, the Gerards are not bound by this recital and may introduce evidence that the true consideration was for money or money's worth. The Gerards have asserted that consideration was given in the form of the usage of joint assets exceeding the value of Cynthia's interest in the property for her business. There appears to be no dispute that such consideration is "past consideration." The Court notes that in the Gerards' second Response [ECF No. 56] to the Plaintiff's Motion for Partial Reconsideration, the Gerards also argue that the property was conveyed contemporaneously with Robert's release of any claim against Cynthia. Not only is this the first time of record that the Gerards have made this argument, but the Court also finds no support in the record for such an assertion. Because the Gerards have not come forward with any evidence to support this argument, the Court must reject it.
Because Robert Gerard is not a purchaser within the meaning of § 6323(a), the tax liens imposed on Cynthia Gerard's interest in the Property survived the conveyance. The parties dispute the extent to which the liens are now attached to the Property.
The Gerards initially held title to the Property as tenants by the entirety. Under Indiana law, a tenancy by the entirety can be terminated "by a conveyance of one spouse's interest to the other spouse." In re Agnew, 818 F.2d 1284, 1288 (7th Cir. 1987); see also Fuston v. Nat'l Mut. Ins. Co., 440 N.E.2d 751, 753 (Ind. 1982). Thus, when Cynthia conveyed her interest in the property to Robert, she terminated the Gerards' tenancy by the entirety. The Plaintiff contends that the liens remain attached to a one-half interest in the Property. The Gerards contend that Cynthia's actual interest in the property was something less than one-half at the time of the conveyance, and, therefore, the liens attached only to some lesser interest.
However, Indiana case law does not appear to support the Gerards' position. For example, in Radabaugh v. Radabaugh, the court found that the trial court had erred by "conclud[ing] that appellee was the owner of less than an undivided one-half interest in the mortgage loan" pertaining to real estate owned by husband and wife as a tenancy by the entirety. 35 N.E.2d 114, 115-16 (Ind. Ct. App. 1941). Despite the fact that the wife contributed a significantly smaller sum to the acquisition of the note, the court found no evidence of an intent that the wife's interest in the note be commensurate with her contribution. Id. at 115. Rather, the court noted that "[w]hen a note and mortgage is made payable to a husband and wife, it is the general rule that they own each an undivided one-half interest, even though the consideration for the note and mortgage is the separate property of the husband." Id. Thus, the court finding no "intent, understanding or agreement to the contrary" held that "the husband and wife became each the owner of an undivided one-half interest in the note and mortgage." Id. So too here. Even if Robert provided over ninety percent of the consideration for the purchase of the Property, under Indiana law, the general rule is that Cynthia and Robert each owned an undivided one-half interest in the Property, and there is no indication in the record that, at the time of purchase, the Gerards intended that Cynthia's interest in the Property be commensurate with the consideration she contributed. Thus, at the time the tax liens attached, Cynthia owned an undivided one-half interest in the Property. See also Nill v. Nill, 584 N.E.2d 602, 607 (Ind. Ct. App. 1992) (noting that upon severance of a tenancy by the entirety, each party had an undivided one-half interest as tenants in common); Ralston v. Ralston, 41 N.E.2d 817, 818 (Ind. Ct. App. 1942) (finding that where wife had purchased property and placed in her and her husband's names jointly as tenants by the entirety, upon the dissolution of the marriage, each party had an undivided one-half interest in the property).
Moreover, the Gerards have produced no authority that the Court finds persuasive in support of their position that Cynthia, as a tenant by the entirety, owned less than an undivided one-half interest in the Property based on her relatively small contribution to the purchase of the Property. In the absence of binding authority, and in light of the pertinent Indiana authority, the Court agrees with the reasoning of courts coming to the opposite conclusion—that two tenants by the entirety are entitled to one-half of the value of the property without regard to the consideration contributed by each tenant and without reference to actuarial tables. See, e.g., United States v. Tyler, 528 F. App'x 193, 199 (3d Cir. 2013) (noting that "if the property has been conveyed to a third party, the federal tax lien will be deemed to encumber a one-half interest in the hands of the transferee" when the property was owned by tenants by the entirety); United States v. Williams, No. 4:11-cv-84, 2012 WL 4505881, at *12 (S.D. Ind. Sept. 28, 2012) (finding that non-liable spouse would be "fully compensated if there [was] a sale of the property" because as a tenant by the entirety, "she would be awarded half of the sale proceeds"). United States v. Barczyk, 434 F. App'x 488, 493 (6th Cir. 2011) (finding that despite non-liable spouse's argument that she had a greater interest than her husband based on actuarial tables, tenants by the entirety "have equal interest in their home" and "the non-defaulting spouse is entitled to fifty percent of the proceeds of the foreclosure sale of the home" (internal quotations omitted)); United States v. Becker, No. 4:03 CV 1602, 2005 WL 6120994, at *15 (E.D. Mo. Sept. 25, 2005) (finding that if property was held as tenants by the entirety, at the time the lien attached, the liable spouse's interest in the property was one-half of the value). Therefore, the Court finds that the tax liens assessed against Cynthia remain attached to one-half of Robert's interest in the Property. Because all but the last two assessments attached to Cynthia's one-half interest, as of September 20, 2017, $58,132.47 remains attached to a one-half interest in the property.
The remaining issue in this case is whether to enforce the assessed liens against the Property by a forced sale. The Plaintiff admits that this analysis involves fact-finding, which is inappropriate on summary judgment, and, therefore, the Court will not consider it.
Accordingly, pursuant to the Court's Order [ECF No.49] granting the Plaintiff's Motion for Reconsideration, the Court enters PARTIAL JUDGMENT in favor of the Plaintiff, the United States of America, and against Defendants Cynthia J. Gerard and Robert E. Gerard. The Court finds: 1) The Gerards are liable to the United States for unpaid employment and unemployment taxes in the amount of $61,262.77 in United States currency as of September 20, 2017, plus any statutory additions, including interest, that continue to accrue as provided by law from and after that date; 2) The assessment liens associated with Cynthia J. Gerard and the tax liabilities of her solely owned company (the Communication and Learning Clinic, LLC) for the quarterly periods ending 9/30/2003, 12/21/2003, 3/31/2006, 6/30/2006, 9/30/2006, 12/31/2006, 3/31/2007, 3/31/2008, and 9/30/2008, attached to her interest in the Property located at 9814 Woodstream Drive, Fort Wayne, Indiana 46804, before it was conveyed by Robert E. and Cynthia J. Gerard to Robert E. Gerard; 3) Robert E. Gerard is not a purchaser of the Property within the meaning of 26 U.S.C. § 6323(a); and 4) As of September 20, 2017, $58,132.47 in United States currency, plus any statutory additions, including interest, that continues to accrue as provided by law from and after that date remains attached to an undivided one-half interest in the Property located at 9814 Woodstream Drive, Fort Wayne, Indiana 46802.
SO ORDERED on April 5, 2018.


text:
This page is generated from SCOTXblog data. If you prefer, you can access the Court's official orders list for August 26, 2011.
10-0223 CENTOCOR, INC. v. PATRICIA HAMILTON AND THOMAS HAMILTON v. MICHAEL G. BULLEN, M.D.
11-0035 VINSON MINERALS, LTD., JOHNNY H. VINSON AND CHISHOLM 2000, L.P. v. XTO ENERGY INC.
11-0218 TONI AND GEORGE HOLLINGER v. WALID SALEH AND THE SHER INSTITUTE FOR REPRODUCTIVE MEDICINE DALLAS, P.A.
11-0259 IN RE BUCKNER CHILDREN AND FAMILY SERVICES, INC.
11-0335 ALLEN GLENN THOMAS v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.
11-0396 ECF NORTHRIDGE ASSOCIATES, L.P. AND TCI 9033 WILSHIRE BOULEVARD, INC. v. ORIX CAPITAL MARKETS, L.L.C., ET AL.
10-0373 THE CITY OF HOUSTON, TEXAS v. SARGE'S FIREWORKS, ET AL.
10-0415 BP AMERICA PRODUCTION COMPANY v. DISCOVERY OPERATING, INC.
09-0073 MERCK & CO., INC. v. FELICIA GARZA, ET AL.
09-0306 BETTY YVON LESLEY, ET AL. v. VETERANS LAND BOARD OF THE STATE OF TEXAS, ET AL.
09-1010 FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.
08-0658 CARROLL G. ROBINSON, BRUCE R. HOTZE, AND JEFFREY N. DAILY v. ANNISE D. PARKER, MAYOR; CITY OF HOUSTON; HOUSTON CITY COUNCIL, ET AL.
08-0890 THE HOUSTON EXPLORATION CO. AND OFFSHORE SPECIALTY FABRICATORS, INC. v. WELLINGTON UNDERWRITING AGENCIES, LTD., ET AL.
09-0481 SUSAN COMBS, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS v. TEXAS ENTERTAINMENT ASSOCIATION, INC. AND KARPOD, INC.
09-0639 THE STATE OF TEXAS; JERRY PATTERSON, IN HIS OFFICIAL CAPACITIES AS LAND COMMISSIONER AND CHAIRMAN OF THE SCHOOL LAND BOARD; AND THE GENERAL LAND OFFICE v. BP AMERICA PRODUCTION COMPANY, AS SUCCESSOR TO VASTAR RESOURCES, INC.

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


The Federal Circuit has now issued two decisions interpreting the Biologics Price Competition and Innovation Act of 2009 (BPCIA). In Amgen v. Sandoz, the first decision to interpret the BPCIA, the majority held that biosimilar makers could opt out of the first step of the BPCIA’s pre-litigation disclosures, the provision requiring biosimilar makers to provide the innovator company with their abbreviated Biologics License Application (aBLA) and other manufacturing information describing the processes used to make the proposed biosimilar. The court held that the innovator company could sue under the BPCIA in such circumstances and obtain the needed information in discovery. In its second decision, Amgen v. Apotex, the court further buttressed its reasoning as to why the first step of the BPCIA’s pre-litigation provisions was optional. Amgen now appeals a discovery ruling in its biosimilar litigation with Hospira holding that Amgen v. Sandoz does not require Hospira to produce manufacturing information for its proposed biosimilar of Amgen’s Epogen (epoetin alfa). Hospira moved to dismiss the appeal as premature. The Federal Circuit denied the motion and is allowing the appeal to proceed on the merits while at the same time requiring the parties to further address jurisdictional issues.
On August 30 FDA approved Sandoz Inc.’s biosimilar of Enbrel (etanercept), Amgen Inc.’s blockbuster biologic for treatment of moderate to severe rheumatoid arthritis and a number of other autoimmune conditions. The biosimilar, Erelzi (etanercept-szzs), is the third biosimilar approved for marketing in the US under the Biologics Price Competition and Innovation Act of 2009 (BPCIA). Erelzi has been approved for all of Enbrel’s indications and is the first U.S. biosimilar of etanercept.
In Rapid Litig. Mgmt. Ltd v. CellzDirect, Inc., the Federal Circuit reversed a ruling of patent invalidity under Section 101, reviving a biotech patent to a method of preserving hepatocytes, liver cells, for medical use. The Federal Circuit reversed the district court at both steps of the Supreme Court’s framework for patent eligibility set out in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012). In the wake of the Supreme Court’s recent denial of certiorari in Sequenom Inc., v. Ariosa Inc., where Sequenom sought guidance on the proper application of the Mayo two-step test, the Federal Circuit’s decision provides important guidance for how to determine patent eligibility for biotech inventions that build on natural discoveries. It also may help stem what many, including several Federal Circuit judges, have described as a crisis in medical innovation due to how courts and the Patent Office have applied Mayo.
The Supreme Court today denied Sequenom Inc.’s petition for writ of certiorari, in which Sequenom asked the Court to review a decision of the Federal Circuit invalidating its patent on a breakthrough prenatal diagnostic procedure. In denying the petition, the Court has declined to revisit the patent eligibility framework it set out in Mayo Collaborative Servs. v. Prometheus Labs. Inc., 132 S. Ct. 1289 (2012) and reaffirmed in Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014).
On June 20, 2016, the full Federal Circuit declined to rehear Acorda Therapeutics Inc. v. Mylan Pharms. Inc., 817 F.3d 755 (Fed. Cir. 2016) en banc. Acorda affirmed two District of Delaware decisions finding specific jurisdiction over Mylan Pharms., an out-of-state ANDA filer, based on its plans to sell its proposed generic drugs in Delaware. After the Supreme Court’s decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014), Mylan has argued that it could only be sued in its home state of West Virginia in ANDA cases since future sales of its proposed generic drugs could not confer specific jurisdiction in Delaware. The Federal Circuit disagreed. Under Acorda, plaintiffs in ANDA cases as well as in cases brought under the Biologics Price Competition and Innovation Act (BPCIA) can bring suit in their forum of choice based on future sales of proposed generic or biosimilar products so long as considerations of fairness, such as efficiency or undue burden, do not render jurisdiction in the forum unreasonable.
In Cuozzo Speed Technologies, LLC v. Lee, No. 15-446, the Supreme Court affirmed the Federal Circuit’s holdings that an alleged defect in the PTO’s institution of an inter partes review (IPR) was not subject to judicial review even on appeal of a final decision, and that the PTO can apply the “broadest reasonable interpretation” claim construction standard in IPR proceedings. Over 30 amicus briefs were filed in this case, with pharma/biotech innovators urging the Court to reverse the Federal Circuit.
Ariosa Diagnostics, Inc., Natera, Inc., and DNA Diagnostics Center, Inc. have filed briefs in opposition to Sequenom’s petition for writ of certiorari to the Supreme Court for review of the Federal Circuit’s decision holding Sequenom’s fetal DNA diagnostic patent ineligible under Section 101 and the test set out in Mayo Collaborative Servs. v. Prometheus Labs. Inc., 132 S. Ct. 1289 (2012).
In the last couple of years, a new gene editing technique called CRISPR has taken biology by storm. Scientists worldwide are using CRISPR to turn off, turn on and alter genes in living cells. CRISPR is so precise that it is expected to turn into a promising therapy for correcting genes in people, thereby curing devastating illnesses. Gene editing startups have burst onto the scene and industry has jumped in to develop this technology for therapeutic use. But CRISPR is now embroiled in a massive patent fight between the research institutions that lay claim to the technology. In January, the Patent Trial and Appeal Board (PTAB) declared an interference, an arcane and largely obsolete proceeding, to decide who was first to invent CRISPR gene editing in eukaryotic cells (using Cas9, a CRISPR associated protein), and thus who may be able to profit from its far-reaching applications.
On March 21, 2015, Sequenom filed a petition for writ of certiorari to the Supreme Court in Sequenom, Inc. v. Ariosa Diagnostics, et al. (No. 15-1182). Sequenom seeks Supreme Court review of a Federal Circuit decision holding Sequenom’s patent on a breakthrough non-invasive fetal DNA diagnostic method invalid as directed at patent-ineligible natural phenomena. In its petition, Sequenom calls its case the “ideal vehicle” for the Supreme Court to address mounting concern – acknowledged by the Federal Circuit below – that Mayo Collaborative Servs. v. Prometheus Labs. Inc., 132 S. Ct. 1289 (2012), has been interpreted too broadly, rendering otherwise meritorious inventions patent ineligible. Sequenom argues that the Federal Circuit’s interpretation of Mayo is incorrect and would have sweeping and devastating effects on innovation in biotechnology.
The Federal Circuit affirmed two decisions by the District of Delaware to assert personal jurisdiction in ANDA cases over West Virginia-based manufacturer Mylan. Mylan had argued that it could only be sued in West Virginia in ANDA cases post the Supreme Court's decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014) because such cases are litigated before actual sales of its generic drug product are made in Delaware (and elsewhere). The Federal Circuit grounded its rejection of Mylan's approach on Mylan's filing of its ANDAs with the clear intent to market its proposed generic drugs in Delaware upon FDA approval, as well as the injury Mylan would cause in Delaware through such sales. Under the Federal Circuit's decision, plaintiffs in ANDA and BPCIA cases can obtain jurisdiction over defendants in their forum of choice based on defendants' regulatory filings with the intent to market their proposed products so long as consideration of fairness, such as undue burden on defendants, do not render jurisdiction in the chosen forum unreasonable.
In Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014), the Supreme Court rejected the Federal Circuit’s “insolubly ambiguous” standard for determining whether a patent claim meets the definiteness requirement under 35 U.S.C. §112, ¶ 2, and that “a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” In the ensuing one and a half years, the Federal Circuit and several trial courts have applied the Nautilus standard in the biotechnology and pharmaceutical contexts. We discuss three notable decisions.
Defendants in Hatch-Waxman cases continue to contest personal jurisdiction outside of their "home" state, in reliance on the Supreme Court's decision in Daimler AG v. Bauman. Most district courts have rejected such arguments, and found that jurisdiction is proper in the patent owner's preferred forum based on consent-by-registration jurisdiction or specific jurisdiction. Both theories of personal jurisdiction are on appeal before the Federal Circuit, and oral argument is likely to occur early in 2016. The lessons learned in the Hatch-Waxman context will provide guidance for litigation under the BPCIA.
In Ariosa Diagnostics Inc. v. Sequenom Inc., 788 F.3d 1371 (Fed. Cir. 2015), a Federal Circuit panel held that Sequenom Inc.’s noninvasive prenatal diagnosis patent claims patent ineligible subject matter under the two-step test of Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012). Sequenom petitioned the court for rehearing en banc, arguing that the panel failed to consider the claimed method as a whole and that its analysis was therefore contrary to Supreme Court precedent. Sequenom’s petition received strong support from amici from numerous organizations, companies and academic groups. There were 12 amicus briefs in total, raising a variety of additional arguments in support of en banc review. On September 3, 2015, the court invited appellees to file a response to the petition for rehearing en banc.
In a victory for holders of method patents, the Federal Circuit issued an en banc decision yesterday expanding the scope of direct infringement when multiple parties perform different steps of an invention. In its unanimous Akamai Techs. v. Limelight Networks decision, the appeals court provided a fact-based test for determining when “all method steps can be attributed to a single entity” such that direct infringement can be found under 35 U.S.C. § 271(a). Unlike the earlier panel decision that was overturned, the en banc court held that infringement can, in some circumstances, be attributed to a single entity even when there is an arms-length business relationship between that entity and the other parties that perform steps of the patented method.
First Round of Post-Teva Claim Construction Decisions: Business as Usual?
In Teva v. Sandoz, the Supreme Court held that findings of fact subsidiary to a claim construction decision are entitled to deference on appeal. Teva has the potential to transform claim construction proceedings, but the extent of the impact will depend on how it is applied by the Federal Circuit. Three recent Federal Circuit decisions give mixed signals about its post-Teva approach to appellate review.
The BPCIA created an abbreviated pathway for FDA approval of biological medicinal products that are “biosimilar” to an already FDA-approved product. The FDA recently approved the first U.S. biosimilar – Sandoz’s biosimilar of Amgen’s Neupogen – and is currently reviewing at least four other proposed biosimilars. Many innovators and biosimilars manufacturers are responding to the changing landscape for biologics by developing “biobetters”: new and improved versions of biologic medicinal products. While biobetters require discovery and an original Biologics License Application (BLA) with a full complement of pre-clinical and clinical data for marketing approval, they also offer many advantages. By offering superior and longer-acting medicine, biobetters provide a competitive advantage over biosimilar products. In addition, unlike biosimilars, they generally would be entitled to patent protection and 12 years of non-patent exclusivity under the BPCIA.
On June 3, the parties in Amgen v. Sandoz presented oral arguments to the Federal Circuit as part of their dispute over the Biologics Price Competition and Innovation Act (BPCIA). While both sides received heavy questioning, several commentators have suggested that the panel’s comments favored Amgen, which previously obtained an injunction pending appeal. There is no timetable for a decision but the appeal is expedited.
On May 26, 2015, the Supreme Court reversed the Federal Circuit’s decision in Commil USA, LLC v Cisco Systems, Inc. and held that a defendant’s belief regarding patent validity is not a defense to an induced infringement claim. The Supreme Court’s Decision is a big win for the pharmaceutical industry, where method of treatment patents provide important protection for innovative medical therapies. The Federal Circuit’s good-faith belief in invalidity defense gutted liability for inducing infringement of such patents. The Supreme Court’s reversal allows these valuable patents to be enforced against the companies that induce infringement. It also deters “at risk” launches prior to a district court decision on the validity of the patents.
A number of biosimilar makers have turned to inter partes review (IPR) proceedings in order to litigate the validity of patents that cover their proposed products in advance of submitting their regulatory applications to FDA. Since IPRs, unlike district court proceedings, do not require a case or controversy, they allow biosimilar applicants to resolve potential patent disputes long prior to being able to litigate these disputes in district court and to potentially avoid the patent dispute resolution procedures of the Biologics Price Competition and Innovation Act (BPCIA) of 2009 entirely.


text:
[221 U.S. 317, 318] Mr. Thomas L. Sloan for Hallowell.
Assistant Attorney General Harr for the United States.
Simeon Hallowell, plaintiff in error, was convicted in the district court of the United States for the district of Nebraska upon the charge of having introduced whisky into the Indian country, in violation of the act of January 30, 1897. 29 Stat. at L. 506, chap. 109. After sentence, Hallowell took the case to the circuit court of appeals for the eighth circuit, and that court certified to this court the question hereinafter set forth.
'That the defendant, Simeon Hallowell, an Omaha Indian, is and was, on the 1st day of August, 1905, an allottee of land granted to him on the Omaha Indian Reservation, in Thurston county, Nebraska; that the allotment so made to him was made under the provisions of the act of Congress of August 7, 1882 (22 Stat. at L. 341, chap. 434); that the first or trust patent was issued to him in the year 1884, and that the twenty-five year period of the trust limitation has not yet expired; and that the fee [221 U.S. 317, 319] title of the allotment so made to him is still held by the United States.
'That the defendant, Simeon Hallowell, on the 1st day of August, 1905, procured at a point outside the said reservation one-half gallon of whisky, which he took to his home, which was within the limits of the Omaha Indian Reservation, and upon an allotment which he had inherited, and which allotment was made under the provisions of the act of Congress of August 7, 1882, and the title of which is held by the government, as the twenty-five- year trust period has not expired. That he took the said whisky into and upon this allotment for the purpose of drinking and using the same himself, and that he did drink said whisky and did give some of it to his friends or visitors to drink.
'That the said Omaha Indian Reservation has been allotted practically in whole, and that many of the allotments of deceased Omaha Indians have been sold to white people, under the provisions of the act of Congress of May 27, 1902 (32 Stat. at L. 245, 275, chap. 888); that within the original boundary limits of the Omaha Indian Reservation there are many tracts of land that have been sold, under the provisions of said act, to white persons who are the sole owners thereof, and that the full title to such lands has passed to the purchaser, the same as if a final patent without restriction upon alienation had been issued to the allottee.
'That all of the Omaha Indians who were living in the year 1884, and by law entitled to allotments, received them.
As appears from the certificate upon which this case is submitted, the trust period named in the section had not expired at the time the alleged offense was committed.
It is apparent that, at the time of the commission of the alleged offense, the place wherein it was alleged to have been committed was a part of lands allotted to an Indian; that the title to the lands allotted was still held in trust by the United States for the benefit of the Indian to whom the allotment had been made; that the plaintiff in error had been declared to be a citizen of the United States, and entitled to the rights, privileges, and immunities of such citizenship, and entitled to the benefit of the laws, civil and criminal, of the state of Nebraska, in which the Indian allotment was situated, and upon which the offense is alleged to have been committed.
Obviously this act in terms embraced the acts stated in the agreed statement of facts, which we have set forth above. The liquor was introduced into the Indian country and into an Indian allotment, while the title to the same was still held in trust by the government.
The contention of the plaintiff in error is that the act cannot be applied to him because, at the time charged, he had become a citizen, and not subject to such regulation as a ward of the government; and furthermore, that the territory in question had become subject to the jurisdiction of the state of Nebraska, to whose police regulations upon the subject of the liquor traffic he was alone amenable.
When this case was certified here, Re Heff, 197 U.S. 488 , 49 L. ed. 848, 25 Sup. Ct. Rep. 506, had been decided, but the subsequent cases of the United States v. Celestine, 215 U.S. 278 , 54 L. ed. 195, 30 Sup. Ct. Rep. 93, and United States v. Sutton, 215 U.S. 291 , 54 L. ed. 200, 30 Sup. Ct. Rep. 116, were yet undetermined. We had occasion to consider these cases in Tiger v. Western Invest. Co., 221 U.S. 286 , 55 L. ed. --, 31 Sup. Ct. Rep. 578, and need not here repeat what was there said concerning them.
In United States v. Sutton, supra, it was held that a conviction could be had under the act of January 30th, 1897 (29 Stat. at L. supra), for the offense of introducing liquor into an Indian reservation. It is true that in the Sutton Case the reservation was within the limits of the state of Washington, and that state had disclaimed jurisdiction over Indian lands, which were to remain under the absolute jurisdiction and control of the Congress of the United States, and it was held that while this fact did not deprive the state of the right of punishing crimes committed on such reservation by other than Indians or against Indians. ( Draper v. United States, 164 U.S. 240 , 41 L. ed. 419, 17 Sup. Ct. Rep. 107), that where jurisdiction and control over Indian lands remained in the United States, Congress had the right to forbid the intro- [221 U.S. 317, 324] duction of liquor into such territory, and to provide for the punishment of those found guilty thereof. Couture v. United States, 207 U.S. 581 , 52 L. ed. 350, 28 Sup. Ct. Rep. 259, was cited, where a conviction for introducing liquor into the Indian country was affirmed.
It is a result of the recent cases decided in this court (Couture v. United States, 207 U.S. 581 , 52 L. ed. 350, 28 Sup. Ct. Rep. 259; United States v. Celestine, 215 U.S. 278 , 54 L. ed. 195, 30 Sup. Ct. Rep. 93; United States v. Sutton, 215 U.S. 291 , 54 L. ed. 200, 30 Sup. Ct. Rep. 116, and Tiger v. Western Realty Co., 221 U.S. 286 , 55 L. ed. --, 31 Sup. Ct. Rep. 578) that the mere fact that citizenship has been conferred upon Indians does not necessarily end the right or duty of the United States to pass laws in their interest as a dependent people. A discussion of the matter in those cases renders further comment unnecessary now. Furthermore, in the present case liquor was introduced into an allotment the title to which was still held by the United States, and concerning which it had the power to make rules and regulations under the authority of the Constitution of the United States. While for many purposes the jurisdiction of the state of Nebraska had attached, and the Indian as a citizen was entitled to the rights, privileges, and immunities of citizenship, still the United States, within its own territory and in the interest of the Indians, had jurisdiction to pass laws protecting such Indians from the evil results of intoxicating liquors, as was done in the act of January 30, 1897, which made it an offense to introduce intoxicating liquors into such Indian country, including an Indian allotment. In this view, the question certified will be answered in the affirmative, and it is so ordered.

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


text:
"1. Non-compliance with the contractual description that the goods are free from genetically engineered components constitutes a fundamental breach.
"2. Contractual exclusions of liability are valid if they limit the remedies of the other party to the avoidance of the contract and do not provide for a full exclusion of all remedies."
A Swiss company bought food-shaper products for making vegetarian escalopes from a Belgian supplier with a view to their exclusive resale to a producer company. It subsequently terminated the contract since the goods contained, contrary to a contractual warranty, genetically modified organisms (GMOs), and sought damages before the lower court.
The Court of Appeal of the Canton of Basel-Stadt, ruling on the dispute as the higher court, held that the CISG was applicable in accordance with its article 1 (1) (b). It did not view the choice of Swiss law by the parties as excluding the application of the CISG within the meaning of article 6. Any such exclusion would have had to be expressly agreed.
The court reaffirmed the existence of a fundamental breach of contract within the meaning of article 25 CISG. It concluded that the buyer had the right to declare the contract avoided in accordance with article 49 (1) (a) CISG and was entitled to claim damages. In spite of the contractual warranty concerning the absence of GMOs, a clause in the contract limiting the seller's liability for product defects to the total invoiced value was deemed admissible within the meaning of article 6 CISG.
The seller objected that only samples of the goods had been taken, which did not prove that all the goods were defective. The court did not uphold that objection, ruling that the buyer had the right to terminate the contract in its entirety and that the buyer's claim for damages should be determined on that basis.
I. In December 1996, company M and W AG, whose legal successor is the Claimant [Buyer], Company P AG, concluded a contract with Respondent [Seller], Company P T I M Belgium N.V., for the delivery of so-called Food Shaper products, which were to be exclusively re-sold to Company B AG in Basel. Various documents, containing previous correspondence, in particular between the [Seller] and B AG, were attached to the contract. On 20 February 1997, vegetarian schnitzel produced from goods originating from the [Seller], were subjected to an examination. In his report dated 14 March 1997, the Cantonal Chemist from Bern came to the conclusion that the sample contained DNA from genetically modified soy. Therefore, the handing over of these products to consumers was prohibited. After various telephone conversations and faxes, the [Buyer] informed the [Seller] that [Buyer] would no longer accept the Food Shaper products and declared the contract avoided. Thereafter, [Buyer] brought an action before the Civil Court of Basel-Stadt for the recovery of damages arising from the cancellation of the contract.
The Court of First Instance partially approved the claim of [Buyer] against [Seller] in its judgment dated 1 March 2002. The [Seller] was held liable to pay Swiss franks [CHF] 324,760.05 plus interest of 5% since 23 November 1998. The additional amount [Buyer] sought and the [Seller]'s counterclaim were dismissed. The [Seller] appeals against this judgment in due time by written application for dismissal of the claim and admission of its counterclaim. In contrast thereto, the [Buyer] seeks confirmation of the judgment of the Court of First Instance. During the proceedings of the Appellate Court of 22 August 2003, the representatives of the parties explained their legal positions. Reference is made to the court record for the content of these proceedings. The facts result from the judgment of the first instance and from the following reasoning.
II. 1. The [Buyer] is located in Switzerland and the [Seller] is located in Belgium. Therefore, the issue of forum becomes relevant. In this regard, in Clause 10.6 of their "Supply Agreement", the parties have agreed upon the Courts of the Canton of Basel-Stadt and have also declared Swiss law to be applicable. For the question of the jurisdiction of the court in the present case, the Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (the Lugano Convention) is authoritative (Art. 1 Lugano Convention). Art. 17 of the Lugano Convention sets out that in the case of an agreement on jurisdiction between parties, at least one of which is located in the sovereign area of a member State, the court chosen has exclusive jurisdiction. Due to this provision, the Civil Court of Basel-Stadt is rightfully hearing the present claim.
It is in dispute whether, under the choice of law as made in the present case, the choice of Swiss law in general, or exclusively the Swiss law of obligations, is intended. A reference solely to the latter would be, in itself, permissible, but would have had to be made explicitly. As this was not done by the parties, the United Nations Convention on Contracts for the International Sale of Goods (CISG), which came into force in Switzerland on 1 March 1991, is applicable (cf. Schlechtriem/Ferrari, Art. 6 CISG, para 21 et seq). The CISG is applicable, according to its Art. 1(1), to contracts of sale of goods between parties whose places of business are in different States (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State.
Contrary to the opinion of the previous instance, the applicability of the CISG cannot be based on subparagraph (a) of this provision, as at the time of the conclusion of the contract, Belgium had not yet ratified the Convention, which, according to Art. 100(2), is only applicable to contracts concluded on or after the day on which the Convention came into force for the relevant Contracting State. In contrast, the previous instance (also) rightly relied on Art. 1(1)(b) CISG, as Art. 116 IPRG [*] subjects the contract primarily to the law chosen by the parties, in this case Swiss law.
2. Among other things, the parties are in dispute about whether the [Seller] committed a breach of contract. The [Seller] is of the opinion that it delivered in accordance with the terms of the contract. Although it was mentioned in the attachments to the contract that the product had to be free from genetically modified organisms (GMO), for [Seller]'s part, it was made quite clear that the possibilities to test for such absence of GMO were limited. [Seller]'s product had been produced from the harvest of 1996. Back then, there was no such thing as GMO, as the Monsanto soy beans did not enter the market until later on.
"This is to certify that all soy protein ingredients used in the production of Protein Technologies International Food Shaper products covered under the terms of this audit by SGS on behalf of B of Switzerland are free of genetically modified soybeans."
With this declaration, the [Seller] had warranted that all "soy protein ingredients" and thereby all ingredients used in the manufacturing of Food Shaper products for Bell Coop were free from genetically modified soy. The [Seller] did not abide by this warranty. This can be seen from the examination report of the Cantonal Laboratory Berne dated 14 March 1997, the examination by the Laboratory for Food Chemistry at the University of Berne ordered by C Switzerland and its final report dated 27 March 1997, as well as from the expert report of the Cantonal Laboratory of the Sanitary Department of Canton Basel-Stadt dated 26 January 2001, with additions dated 18 June 2001, ordered by the Court of First Instance. The [Seller] claims that the positive signals lie between 0.1 and 1% and hence within the area of unavoidability, which is what eventually prompted the Swiss authorities to declare goods with positive signals in this area up to 1% as GMO-free. However, this declaration limit was first introduced in 1999, whereas, in the present case, the legal position of 1997 is authoritative. Thus the [Seller] breached the contract. Therefore, it is only of secondary interest that, since 1999, such products apply as, but are not, GMO-free. As a result, even in the case of contracts concluded after 1999, the significance of a particular warranty of a party would have to be examined.
3. Furthermore, the previous instance rightly affirmed the presence of a fundamental breach of contract by the [Seller] in accordance with Art. 25 CISG. The [Seller] asserts that, at the beginning of its contractual obligations, it was not possible to foresee the consequences of an "unavoidable feature of the goods, utterly impossible to be proven at the time of the conclusion of the contract, and hardly worth to be considered due to its small amount". Furthermore, from 4 June 1997, genetically modified RR soy beans, subject to a correct declaration, were allowed to be imported, processed and sold in Switzerland. Fundamental to the agreement of the parties was the delivery of the substance Food Shaper, whereby the GMO-freedom was only a peripheral matter. This opinion cannot be followed in view of the fact that, according to an expert report dated 26 January 2001, even the smallest contamination in the first quarter of 1997 was to be legally objected to and further processing in Switzerland was not permitted. It is also evident from the correspondence of the parties, in particular the declaration of guarantee of the [Seller] dated 31 October 1996, that fundamental significance was attached to a GMO-free product. It can therefore be assumed -- as the previous instance did -- that a fundamental breach of contract was committed by the [Seller] and the [Buyer] was thereby entitled, under Art. 49(1)(a) CISG to avoid the contract concluded with the [Seller].
"In the event [Seller]'s liability is finally established, [Seller] will replace the defective goods or if such replacement has become impossible, [Seller] will give an equivalent financial compensation, such compensation cannot exceed the invoiced value of the original transaction."
It is debatable whether this limitation of liability is to be observed even if the [Seller] has expressly warranted a certain feature of the goods. Thereby, it must be assumed that, although exemption clauses are generally not reconcilable with a warranty, as the simultaneous existence of both agreements is impossible from a legal point of view. This, however, only applies to the unlimited contracting-out of guarantees, while a restricted exemption appears indeed to be possible (Giger, Berner Kommentar, para 21 on Art. 199 OR [*]). Thus -- despite the warranty of freedom from GMO -- it was still permissible in the present case to limit the liability for delivery of defective goods in such a way that, although the buyer can avoid the contract, it does not have any further rights to additional damages. Thereby, the maximum amount of any possible damages has been obvious right from the very beginning.
5. With respect to the extent of the damages, the [Seller] is of the view that only parts of the goods, in which traces of genetically modified corn were actually found, could be regarded as unusable. However, only samples were taken, while a possible contamination of the remainder of the goods cannot be established. The [Buyer] was neither expected to examine the entire goods, nor could it have been expected to process the unexamined goods and sell them with the risk of being re-accused of the forbidden distribution of genetically modified organisms. For this reason, the [Buyer] is allowed to avoid the contract in its entirety, although as a consequence thereof, the book value of all goods delivered will apply as the maximum amount of liability. This value was estimated at CHF 379,118.70 in the judgment of the Court of First Instance, which was not disputed by the [Seller] in the appeal and is therefore to be confirmed. The customs invoices, which have been taken into account as further damage in the previous instance, are already included in the book amount of CHF 6.98 per kilogram of goods; the [Buyer] cannot claim these as damages a second time. The commission and the storage costs of the goods, which have been claimed, go beyond the "invoiced value of the original transaction" and therefore, according to Art. 5.5 Supply Agreement, cannot be allowed. The justified claim of the [Buyer] therefore amounts to CHF 379,118.70. The [Seller]'s counterclaim in the amount of CHF 184,526.45, which has been recognized by the [Buyer], is to be deducted from the total amount, which finalizes the counterclaim and confirms its dismissal by the previous instance. Interest of 5% since the submission of the claim on 23 November 1998 is due on the resulting judgment sum of CHF 194,592.25, which the [Seller] does not dispute.
6. As a consequence the [Buyer] has to bear three quarters of the ordinary and extraordinary cost of the claim in the first instance and the expert proceedings. With respect to the counterclaim, the decision on costs from the first instance is to be confirmed. The ordinary costs of the proceedings in the second instance are to be borne equally by the parties, while their extraordinary costs in this regard are to be offset.
- In partially allowing the appeal, the [Seller] is ordered to pay CHF 192,592.25 plus 5% interest at since 23 November 1998.
- The additional claim and the counterclaim are dismissed.
- The [Buyer] has to bear three-quarters of the ordinary costs of the claim and the expert proceedings in the first instance and the [Seller] one-quarter. With regard to the ordinary costs of the counterclaim, the judgment of the Court of First Instance is affirmed. The [Buyer] has to bear its own extraordinary proceeding costs of the first instance and has to pay to the [Seller] 50% of its extraordinary proceeding costs of the first instance.
- The ordinary costs of the proceedings at second instance with a charge of CHF 30,000.00, plus outlays, are borne equally by the parties. The extraordinary costs of the second instance are offset.
Under the requirements of Art. 43 et seq of the Federal Law on the Organization of the Administration of Justice [OG], this decision can be appealed against due to violation of Federal Law within 30 days of its publication. The statement of appeal is to be submitted to the appellate court in three copies in good time. Reference is made to Art. 55 OG regarding the requirements as to content. The Federal Court will decide on the admissibility of the legal proceedings.
Whether in addition to, or instead of the appeal, other legal proceedings (e.g., public law complaints to the Federal Court) are admissible arises from the applicable legal provisions.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Claimant of Switzerland is referred to as [Buyer] and the Respondent of Germany is referred to as [Seller]. Amounts in the currency of Switzerland (Swiss franks) are indicated as [CHF].
Translator's note on abbreviations: IPRG = Gezetz über das Internationales Privatrecht [Swiss Code on Private International Law]; OR = Obligationenrecht [Swiss Code of Obligations].
** Mariel Dimsey is a Research Assistant and Teaching Assistant at the University of Basel, Switzerland.
*** Daniel Nagel has been a law student at Heidelberg University since October 2002 and an exchange student at Leeds University in 2004/2005.

matches:
Art. 17
Art. 6
Art. 1
Art. 100
Art. 1
Art. 116
Art. 25
Art. 49
Art. 199
Art. 5
Art. 43
Art. 55


text:
This week, Apple launched its latest product, the iPhone X. Among its newest features, the iPhone X includes Face ID facial recognition software. According to Apple, “[w]hen Face ID detects and matches your face, iPhone X unlocks without asking for the device passcode.” Face ID is designed to “provide robust authentication with a low false match rate, and mitigate both digital and physical spoofing.” Face ID might provide easy access for users, but it also raises serious questions about constitutional protections to your right to privacy. Almost two years ago, Apple refused to assist the government in retrieving encrypted data from the San Bernardino shooter’s iPhone, citing concern about the effect this kind of “master key” would have for the privacy rights of its users. Despite this concern, however, the biometric features included in its latest phones might have the exact opposite impact on user privacy than Apple intends. While these issues originally arose with the use of fingerprint operated phones, Face ID presents the opportunity to reconsider how biometric data is treated by courts and whether it is the appropriate approach.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Apple’s shift from passcode protected phones to biometric security options––including fingerprint passcodes and Face ID––allows for police to access your phone’s content much more easily, by simply holding up the phone to your face, or ordering you to place your finger on the phone. But can the police lawfully force a suspect to use their Face ID to unlock their phone without violating their Fourth Amendment rights? The answer to this question seems to be a resounding “no”. In 2014, the Supreme Court considered whether the contents of your cell phone are protected under the Fourth Amendment. The Court held that your phone’s contents are inherently private, and “[a]llowing the police to scrutinize [a digital record of nearly every aspect of the owner’s life] on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.” Thus, the police must generally obtain a warrant if they intend to search your cell phone. Despite how easy it may be for an officer to unlock your phone with Face ID, your privacy rights have not been eroded. Without a warrant or consent, the police would not lawfully be able to access your phone.
Despite your right to privacy under the Fourth Amendment, the type of passcode you use can actually determine whether the information contained on your cell phone is protected. This is tied to the Fifth Amendment’s protection against self-incrimination, which provides that “[no person] shall be compelled in any criminal case to be a witness against himself.” The Fifth Amendment, however, only applies to “testimonial” evidence. Thus, the fundamental question is whether your face or fingerprint is considered testimonial.
In determining whether a communication is testimonial, the Supreme Court held that “an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information . . . [the] privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information.” In Doe v. U.S., the Supreme Court held that the defendant was required to sign consent forms which would disclose bank records related to accounts he was suspected of controlling. The court reasoned that the defendant’s signature was more akin to “be[ing] forced to surrender a key to a strongbox containing incriminating documents,” than it is like “be[ing] compelled to reveal the combination to [a] wall safe.” Because the consent form did not explicitly or directly establish whether the alleged accounts existed, requiring the defendant to sign the forms was not self-incrimination.
Courts have repeatedly held that there is no Fifth Amendment protection against the production of blood samples, DNA, voice, or even fingerprint evidence. Such evidence is not considered testimonial because it does not require the declarant to say anything about what is going on in his mind. In fact, the Supreme Court held that requiring a defendant to speak during a lineup was not self-incrimination by distinguishing between the “compulsion of the accused to exhibit his physical characteristics” and the “compulsion to disclose any knowledge he might have.” Under this analysis, it is likely that a court would not find a Fifth Amendment violation in requiring a defendant to unlock his or her phone through Face ID, because using Face ID seems to objectively be “exhibiting physical characteristics,” not disclosing further information.
But is Face ID just the exhibition of physical traits, or is it something more? There is no dispute that your face is a physical characteristic, but in the context of Face ID, it is being used as the passcode itself. That is, your facial structure is transformed from a simple physical trait to a communication that should be protected under the Fifth Amendment. Indeed, it seems illogical to protect a defendant from being compelled to input a numerical passcode, but to compel them to input their biometric passcode. Unless courts begin to draw a distinction between biometric data as a passcode and biometric data as a physical characteristic, as newer technology surfaces, consumers should be aware of the inverse relationship between these enhanced security measures and the legal protection of the contents of their phone.
 Face ID Security Guide, 2 (Nov. 2017), available at https://images.apple.com/business/docs/FaceID_Security_Guide.pdf.
Alina Selyukh, A Year After San Bernardino And Apple-FBI, Where Are We On Encryption?, All Tech Considered (Dec. 3, 2016), http://www.npr.org/sections/alltechconsidered/2016/12/03/504130977/a-year-after-san-bernardino-and-apple-fbi-where-are-we-on-encryption.
 See Riley v. California, 134 S. Ct. 2473 (2014).
 See Janus Kopfstein, Court: Cops Need a Warrant to Open Your Phone, Even Just to Look at the Screen, Motherboard (Apr. 24, 2016), https://motherboard.vice.com/en_us/article/yp3wpj/court-cops-need-a-warrant-to-open-your-phone-even-just-to-look-at-the-screen.
 United States v. Wade, 388 U.S. 218, 222-223 (1967) (explaining that protection against self-incrimination applies when defendant is asked “to disclose any knowledge he might have,” or “to speak his guilt”).
 Doe v. United States, 487 U.S. 201, 212 (1988).
 See Commonwealth v. Baust, 89 Va. Cir. 267 (2014) (fingerprint); Gilbert v. California, 388 U.S. 263 (1967) (handwriting); Wade, 388 U.S. 218 (voice); Schmerber v. California, 384 U.S. 757 (1966) (blood test).
 Doe, 487 U.S. at 216.
 Wade, 388 U.S. at 222.
 See Kaveh Waddell, Can Cops Force You to Unlock Your Phone With Your Face?, The Atlantic (Sept. 13, 2017), https://www.theatlantic.com/technology/archive/2017/09/can-cops-force-you-to-unlock-your-phone-with-your-face/539694/; see also Louise Matsakis, We Asked 6 Privacy and Legal Experts About Apple’s New Face ID, Motherboard (Sept. 13, 2017), https://motherboard.vice.com/en_us/article/7xkp7a/iphone-8-iphone-x-face-id-legal-privacy-surveillance.

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


§ 176-3 Higher standard to prevail; authority to issue regulations; severability.
§ 176-5 Inspection and certification required.
§ 176-6 Inspection and rental unit compliance certificate; noncompliance.
§ 176-8 Inspection and residential occupancy permit for single-family units and two-family units; noncompliance.
§ 176-9 Inspection and multiple dwelling occupancy permit; noncompliance.
§ 176-10 Display of certificate and permit.
§ 176-11 Registration of landlords.
§ 176-13 Continuation of certain preexisting conditions.
§ 176-15 Responsibilities of owners and occupants.
§ 176-16 Penalties for offenses.
Building construction and fire prevention — See Ch. 127.


Sturgis Motorcycle Rally, Inc.v.Rushmore Photo & Gifts, Inc.
STURGIS MOTORCYCLE RALLY, INC., Plaintiff and Counterclaim Defendant, v. RUSHMORE PHOTO & GIFTS, INC.; JRE, INC.; CAROL NIEMANN; PAUL A. NIEMANN; BRIAN M. NIEMANN; and WAL-MART STORES, INC., Defendants and Counterclaim Plaintiffs.
On November 13, 2013, defendants filed a second motion for summary judgment seeking dismissal of all of plaintiff's claims in the first amended complaint. (Docket 114). The court referred the motion to Magistrate Judge John E. Simko for a report and recommendation pursuant to 28 U.S.C. § 636. (Docket 117). On May 29, 2014, Magistrate Judge Simko filed a report recommending the court deny defendants' second motion for summary judgment. (Docket 127). The parties timely filed objections. (Dockets 128 & 129). The parties also filed responses to the opposing party's objections. (Dockets 130 & 131).
Fed. R. Civ. P. 72(b)(2) allows a party to respond to an opposing party's objections.
The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
For the reasons stated below, the parties' objections are overruled. The court adopts the report and recommendation of the magistrate judge.
4. The issues of fact identified by the magistrate judge are neither accurate nor complete.
(Docket 128 at pp. 4, 9, 10 & 11). Each objection will be separately addressed.
"Rushmore" is commonly used to refer to defendants Rushmore Photo & Gifts, Inc., Carol Niemann, Paul A. Niemann, and Brian M. Niemann.
Lovely Skin, Inc. v. Ishtar Skin Care Products, LLC, 745 F.3d 877 (8th Cir. 2014).
Defendants argue the court "supported by a 12-page fact appendix, has once already held that STURGIS was commonly used by hundreds of others during the time plaintiff represented its exclusive use of STURGIS.' " Id. at p. 1 (citing Docket 107 at pp. 8-9). Defendants assert "[t]his 'common use' of STURGIS by 'hundreds of others' is the very basis for finding that SMRI's use was not 'substantially exclusive' and it defeats any argument that use by others was de minimis. And yet, [R&R #2] cites de minimis use as the basis to deny Defendant[s'] motion. This is clear error." Id. Defendants submit the court's earlier finding rebuts the presumption of secondary meaning claimed in the 2(f) registration of February 22, 2011. Defendants ask the court to reverse the decision of the magistrate judge "in not finding that Defendants had rebutted the presumption of secondary meaning as of the effective registration date, as the Court's previous findings and the extensive evidence in the record conclusively establishes widespread common use of STURGIS by others before SMRI gained registration." (Docket 128 at p. 5) (emphasis in orginal).
Fraud on the [Patent and Trademark Office ("PTO")] presents a fact question to be decided by a jury. Contrary to the presentation Plaintiff Sturgis made to the PTO about its exclusive use of STURGIS, the term was commonly used by hundred of others during the time plaintiff represented its exclusive use of STURGIS. But there is a fact question for a jury to decide—was it the intention of Plaintiff Sturgis to defraud the PTO?
There is a fact question to identify into which category of distinctiveness STURGIS falls. There is also a fact question whether STURGIS has acquired distinctiveness as a result of secondary meaning, and if so, whether the distinctiveness identifies plaintiff Sturgis as the source of products or whether the secondary meaning of STURGIS is the event itself.
(Docket 107 at pp. 8-9) (italics in original). In R&R #2, the magistrate judge expanded upon and clarified these factual issues. "[T]rademarks which are merely descriptive cannot be registered unless the mark has become distinctive of those particular goods in commerce." (Docket 127 at p. 6) (referencing Lovely Skin, 745 F.3d at 882). "[T]he chief inquiry is whether in the consumer's mind the mark has become associated with a particular source." Id. (citing Lovely Skin, 745 F.3d at 882). This is the focus of the first set of factual issues identified in R&R #1. Id.
[Rushmore] and hundreds of vendors have used STURGIS when SMRI represented to the PTO that SMRI had "substantially exclusive" use of STURGIS goes a long way toward satisfying Rushmore's burden to establish a prima facie case of no secondary meaning, but not all the way. . . . Rushmore must prove to the jury that Rushmore's and other vendors' uses of STURGIS were substantial enough so that SMRI did not have "substantially exclusive" use of STURGIS and STURGIS had in fact not acquired a distinctive meaning when SMRI represented to the PTO that STURGIS had acquired a distinctive meaning because SMRI had been using it "substantially exclusively."
(Docket 127 at p. 8). In other words, SMRI's declaration of "substantially exclusive" use of STURGIS as alleged in the 2(f) registration in 2011 may ultimately be disproved by Rushmore's evidence, but that challenge remains a jury question. Whether the claim of substantially exclusive use in the 2011 registration was true, or false and made with the intent to defraud and mislead the PTO, remains a jury question. This is the conclusion reached in denying defendants' first motion for summary judgment. "[D]efendants' evidence does not rise to the standard of clear and convincing evidence required to make such a determination during the summary judgment analysis." (Docket 113 at p. 46).
"Whether the submission . . . to the Patent and Trademark Office was 'greatly exaggerated,' 'disingenuous,' not reflective of a lack of 'uncompromising candor,' or false with the intent to mislead the Patent and Trademark Office must be established by 'clear and convincing' evidence." (Docket 113 at p. 46) (citing Orient Express Trading Co., Ltd. v. Federated Department Stores, Inc., 842 F.2d 650, 653 (2d Cir. 1988)).
Fact issues remain which compel the court to deny defendants' second motion for summary judgment. Defendants' first objection is overruled.
Defendants argue the magistrate judge erred because the "record establishes that SMRI never had 'long and exclusive use' such that the relevant consumer's [sic] would associate STURGIS denoting a single thing coming from a single source." (Docket 128 at p. 9) (quoting Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 870 (8th Cir. 1994) (other citations omitted).
"In determining whether a mark has acquired distinctiveness, i.e., secondary meaning, 'the chief inquiry is whether in the consumer's mind the mark has become associated with a particular source.' " Lovely Skin, 745 F.3d at 882 (quoting Co-Rect Products, Inc. v. Marvy! Advertising Photography, Inc., 780 F.2d 1324, 1332-33 (8th Cir.1985)). "A mark registered on the Principal Register is presumed to be valid . . . and the presumption of validity is a strong one." Id. (referencing 15 U.S.C. § 1057(b), internal quotation marks and citation omitted). "[T]he presumption of validity that attaches to a § 2(f) registration includes a presumption that the registered mark has acquired distinctiveness, or secondary meaning, at the time of its registration." Id. at 882.
Defendants object to the magistrate judge comparing Lovely Skin as a "road map" for the analysis in this case. (Docket 128 at p. 10). "And when the 'road map' of Lovely Skin is applied to the evidence of record, this case is readily distinguishable from the facts of Lovely Skin." Id.
The court concluded its analysis of defendants' first two objections recognizing the guidance offered by Lovely Skin and the other cases cited above. The current objection is simply a restatement of defendants' earlier objections and requires no separate resolution by the court.
Defendants' third objection is overruled.
Defendants object to the list of fact questions identified in R&R #2 which need to be resolved at trial. (Docket 128 at pp. 11-14). The court views the fact questions posed in R&R #2 as simply illustrative, and not all-inclusive, of the issues remaining for trial. The court will independently determine what fact issues remain for trial during the pretrial conference. No separate resolution of defendants' objections need be conducted at this juncture.
Defendants' fourth objection is overruled.
Plaintiff "submits the following objections pertaining to the factual issues which have carried over from Defendants' first summary judgment motion into [R&R #2]. The Magistrate made no new findings and thus Plaintiff is limiting its submission to renewing prior objections. Plaintiff's limited objections as set forth below are identical to those made to [R&R #1] . . . and include a summary notation of the Court's resolution or ruling on the various, previously submitted objections." (Docket 129 at p. 2).
The court previously resolved plaintiff's objections to R&R #1. See Docket 113. The court will not revisit plaintiff's objections or the court's earlier rulings. For these reasons, plaintiff's objections are overruled.
ORDERED that defendants' objections (Docket 128) are overruled.
IT IS FURTHER ORDERED that plaintiff's objections (Docket 129) are overruled.
IT IS FURTHER ORDERED that the second report and recommendation (Docket 127) is adopted by the court.
IT IS FURTHER ORDERED that defendants' motion for summary judgment (Docket 114) is denied.
IT IS FURTHER ORDERED that plaintiff's motion for leave to conduct additional discovery (Docket 119) is denied. Following consultation with the parties, the court will enter a scheduling order for trial of the case.