This appeal case discusses inventive step and sufficiency of disclosure as grounds for dismissing the appeal. The Board refused most requests because they lack an inventive step. Auxiliary request 8 has been refused because it lacks sufficiency of disclosure for a second medical use claim in this request. This case shows which disclosure the Board expects in the context of a second medical use claim. In the present case the Board concludes that the skilled person has to set up a complete research program to carry out the invention.
The appeal lies against the interlocutory decision of the opposition division and was filed by the proprietor of the patent (the appellant).
"1. Use of a variant of human prolactin having a substitution of the glycin at position 129 for the preparation of a medicament for inhibiting the proliferation of a breast or prostate cancer cell which expresses a prolactin receptor.
9. A fusion protein comprising a variant of human prolactin which is linked to another protein, wherein the variant has a substitution of the glycine at position 129.
10. A fusion protein according to claim 9, wherein the prolactin variant is linked to interleukin 2.
11. A fusion protein according to claims 9 or 10, wherein the variant has a substitution of the glycine at position 129 with arginine.
12. Use of a fusion protein according to any one of claims 9 to 11 for the preparation of a medicament for treating breast or prostate cancer, wherein said breast or prostate cancer expresses a prolactin receptor."
Sufficiency of disclosure: claim 12Claim 12 was drawn up as a second medical use claim and was thus limited to fusion proteins that treated breast or prostate cancer. The opposed patent gave one example of a suitable fusion partner, IL-2, and described in detail how to screen fusion proteins for their ability to inhibit proliferation of breast and prostate cancer cells. Although it was not predictable whether or not a fusion protein possessed the therapeutic effect, the skilled person could design and produce suitable fusion proteins and test them using the assays disclosed in the patent in suit.
No further arguments were submitted relating to these requests.
1. The patent in suit relates to the inhibition of the cell proliferation-promoting effects of prolactin (PRL) on its receptor. The prolactin receptor (PRLR) is a member of the cytokine receptor superfamily and binds a group of hormones, including not only PRL but also growth hormone (GH) (see e.g. document D2, abstract). PRL and GH possess two binding sites for the receptor, termed binding site 1 and binding site 2. Binding of PRL or GH to PRLR is sequential. First the hormone, e.g. PRL, interacts with the receptor through its binding site 1, forming an inactive complex. The hormone then binds to a second receptor through its site 2, which leads to receptor homodimerisation and formation of an active complex (see e.g. document D1, page 10, left hand column, first full paragraph; Figure 3A).
2. By replacing small side chain residues with amino acids carrying large side chains, PRL and GH analogs whose binding sites 2 are sterically hindered and unable to interact with their receptor are generated. With these hormone analogs receptor dimerisation cannot occur and the hormone analog is inactive. Moreover, since such mutants maintain the ability to bind through their binding site 1, they block the receptor in the inactive 1:1 stoichiometry and thus act as hormone antagonists (see document D1, page 10, right hand column, first full paragraph; Figures 3B and 3C).
18. In view of the fact that the main request is in any event not allowable for lack of inventive step, it is strictly not necessary for the board to say anything about the Article 83 EPC objection against claim 12 of the main request. However, the board's view on this issue has consequences for the auxiliary requests and so it is convenient to deal with the issue here.
19. Claim 12 of the main request concerns the use of a fusion protein comprising a variant of human prolactin which is linked to another protein, wherein the variant has a substitution of the glycine at position 129 for the preparation of a medicament for treating breast or prostate cancer, wherein said breast or prostate cancer expresses a prolactin receptor.
20. Claim 12 is drafted as a second medical use claim and thus attaining the claimed therapeutic effect, namely treating breast or prostate cancer, is a functional technical feature of the claim. The relevant question to be addressed in the context of Article 83 EPC is whether or not the patent in suit provides enough guidance for the skilled person to manufacture fusion proteins which also show the claimed therapeutic effect without undue burden or rather whether the skilled person is faced with a research program for which no guidance is forthcoming.
"In yet other embodiments, a prolactin variant having a substitution of the glycine at position 129 is linked to another protein as part of a fusion protein. As one specific embodiment, the prolactin variant may be linked to interleukin 2. One nonlimiting example of such an embodiment is a G129R variant of human prolactin linked to interleukin 2."
22. These paragraphs thus disclose the linkage of hPRL variants, e.g. of the G129R-hPRL variant, to other proteins, e.g. to interleukin 2, but are silent as regards the type of linker used, the location of the linkage on the prolactin variant, or any other suitable fusion partner of the prolactin variants wherein the resulting fusion protein will have the effect of treating breast or prostate cancer.
23. According to the patent, the treatment of breast or prostate cancer relies on the inhibition of the cell proliferation-promoting effects of PRL on its receptor (see paragraphs , ). The patent is silent as regards the mechanism underlying this inhibition. From the prior art it is however clear that the prolactin variants act as antagonists by binding to the hPRL receptor through their binding site 1 while at the same time not dimerizing it, due to changes in their binding site 2 (see point 2 above). In order to function as an inhibitor of cell proliferation the fusion protein must thus retain the ability of the prolactin variant to bind to the hPRL receptor through binding site 1. The board considers it likely that the size of the fusion partner and the location of the linkage on the prolactin variant have an influence on the binding of the prolactin variant to the hPRL receptor by virtue of, e.g., changes in the three dimensional conformation of the protein and/or steric hindrance.
24. Without any information in the patent as regards the effect of the linker, the fusion partner or the location of linkage on the binding site 1 of the prolactin variant, the skilled person has to produce and test each and every fusion protein by a trial and error in order to determine whether or not the particular choice of linker, fusion partner and location of linkage provides a fusion protein having the claimed therapeutic effect.
25. This was not contested by the appellant, who conceded that without testing a particular fusion protein it was not predictable whether it would possess the claimed therapeutic effect.
26. The board considers that in the present case, in view of the lack of technical guidance and details in the patent, the production and the testing of fusion proteins showing the claimed therapeutic effect amounts to a research program which represents an undue burden for the skilled person.
27. The board concludes from the above that the subject-matter of claim 12 of the main request fails to meet the requirement of Article 83 EPC.
29. In the board's judgment the board's conclusions under Article 83 EPC for the subject-matter of claim 12 of the main request (see points 18 to 27, above) apply, mutatis mutandis, to the corresponding claim of auxiliary request 8 (and indeed of auxiliary requests 1, 2, 3, 5 and 7), so that auxiliary request 8 is for this reason alone not allowable.
This decision has European Case Law Identifier: ECLI:EP:BA:2015:T090810.20150115. The whole decision can be found here. The file wrapper can be found here. Photo "Alien Research lab" by Paul Albertella obtained via Flickr under CC BY 2.0 license (no changes made).
T 557/13 - Poisonous or nothing wrong?
At the closure of the debate in oral proceedings in T 557/13, the Chairman announced that the Board will refer one or more questions to the Enlarged Board of Appeal in relation to what is often referred to as partial priority, poisonous divisionals and poisonous priorities. The questions are not yet formulated - the decision will be given in writing. The topic is however of such an interest that we want to post it already now on our blog -- we will come back to the topics once the referral is done.
This appeal lies from a decision of the examining divisions to refuse the application.
The searcher in the international phase apparently considered the claimed invention to make no technical contribution. In line with the EPO policy of OJ 2007, 592, a search report was issued, but no prior art was cited - "the technical aspects identified in the present application (Art. 15 PCT) are considered part of common general knowledge. Due to their notoriety no documentary evidence is found to be required" (instead of the former approach of giving a "no search" declaration).
In the regional phase, the applicant disagreed with the lack of inventive step reasoning of the examiner. In an effort to overcome the objection, new claims were filed. The EPO rejected those as having added subject-matter (Art.123(2)).
The applicant reformulated the claims in a main and auxiliary request close to the original wording. The examining division used its discretion under R.137(3) to not admit these requests as "not addressing prima facie any objections under Art.56 EPC".
The refusal was thus based on "there being no text on file which has been agreed by the applicant"
The Board concludes that the Examining Division wrongly applied its discretion: "By refusing its consent to the main request, the Examining Division effectively took the position that any admissible request had to incorporate amendments aimed at overcoming its objections under Article 56 EPC. This unreasonably deprived the applicant of the opportunity of simply disagreeing with the Examining Division and obtaining a decision based on a set of claims, duly admitted into the procedure, reflecting what had been its fundamental position throughout."
"Where the relevant search authority has stated, either in a search report or in a declaration that no search report will be established, that it is not necessary to cite any documentary evidence of the prior art on the grounds that all of the technical features of the claimed invention are notorious, it is always incumbent upon the examining division to consider whether an additional search is necessary. The criterion to be applied is that if the invention as claimed contains at least one technical feature which is not notorious, the application should normally not be refused for lack of inventive step without performing an additional search (see Reasons, point 3.9, and T 690/06, Reasons, point 8)".
- an energy emitter (9) in engagement with the frame (100) and active on the molecules of at least one medicament to cause penetration of same into a skin region to be treated (10); (...) said energy emitter (9) being an electromagnetic wave generator (11) emitting a laser light of a wavelength comprised in the range of 600 to 650 nm."
The board has its doubts whether such a electromagnetic wave generator can really be active on the molecules of a medicament to cause penetration into a skin region. The board evaluates if there is a plausible explanation of the claimed effect and, in the absence thereof, the available evidence.
Prior to the oral proceedings in petition for review proceedings before the Enlarged Board in its five-member composition, the petitioners, by letter dated 2 June 2014, filed further submissions in support of their petition and, on pages 12 and 13 of those submissions, stated with reference to R 19/12 that: "In any event as an auxiliary measure and in order to safeguard the rights of the petitioners-patentees and not to be precluded in other proceedings, we herewith object to the chairman of the current composition of the Enlarged Board of Appeal in this case for suspicion of partiality in line with the reasoning of R 19/12".
The reader may find the below worthwhile in view of the EPO's Online consultation: Boards of Appeal (click here), where the The European Patent Office invites of users of the European patent system concerning to suggest and comment on possible improvements of the functioning of the Boards of Appeal with respect to both their autonomy and the perception of their independence and their efficiency. The user consultation will run until 30 June 2015.
The consultation is done in the context of a structural reform of its Boards of Appeal that has been launched by the European Patent Organisation. The main features of the proposed reform are described in the document (CA/16/15 (pdf)), which has been presented by the European Patent Office to the Administrative Council in March and has met with broad support. The aim of the reform is to ensure and increase the organisational and managerial autonomy of the Boards of Appeal, the perception of their independence as enshrined in Article 23 EPC, as well as their efficiency within the legal framework of the current European Patent Convention.
See also the EPO News message of 30 April 2015.
T 1756/11 - Third party excluded from the party?
This is an appeal against a decision of the Opposition Division to maintain European Patent No. 1 219 158 in amended form in accordance with the proprietor's first auxiliary request.
The opponent filed its notice of appeal on 9. August 2011 while paying the appeal fee. The grounds were filed on 23. September 2011.
Observations by third parties were filed on 17. January 2013 and, in accordance with Art. 114 (2) EPC, communicated by the Board towards the parties.
The preliminary opinion of the Board was issued on 30. September 2014. Oral proceedings took place on 14. January 2015.
Neither the Appellant or respondent commented on the Observations by third parties.
The Board in this decision decides to disregard the late-filed third party observations and to refrain from mentioning them in its decision. Cited below is the board's motivation for this.
Reason 2.3: Art. 114(2) gives the Opposition Division the right to disregard late-filed facts or evidence. However, this applies to filings by parties to the proceedings, which according to Art. 115 a third party is not. Nevertheless, Art. 114(2) is considered to still apply to third party observations which were filed after the opposition time limit by way of a legal fiction according to T 951/91, reason 5.9.
The reasoning behind this is to prevent Art. 115 being (ab)used to expand the rights of third parties or even parties to the proceedings.
Reason 2.5: Although a third party thus has no right to have its observations considered by the Opposition Division, it is common practice for the Opposition Division to at least comment on the relevance of such late-filed third party observations in their decision.
Reason 2.6: Due to the third party not being a party to the proceedings, there is thus no need to, in case of late-filed third party observations (i.e., filed after the time limit for filing the notice of opposition), to comment on their inadmissibility in case the Opposition Division considered the observations not relevant and further disregarded them.
Reason 2.7: On the other hand, the Opposition Division may nevertheless consider and examine such late-filed observations out of its own motion under Art. 114(1) if it considers them prima facie relevant.
Reason 2.8: However, in appeal proceedings, the own-motion principle applies to a lesser degree ("verliert (...) das Gewicht"), especially in inter-partes proceedings, G 9/91, G10/91, reason 18. Here, the impartiality of the Board of Appeal is of up-most importance.
Reason 2.9: The Board of Appeal thus generally needs to disregard late-filed third party observations, except when they relate to amendments during the opposition or appeal-proceedings, G 9/91, G10/91, reason 19, in which case the Board may or may not admit them into the proceedings.
Reason 2.10: A party to the proceedings may however at all times submit comments on new facts or evidence from such third party observations, when these in their view can affect the decision. This right comes forth from Art. 113(1), i.e., the right to be heard. In this case, the Board has to decide on the (in)admissibility of such late-filed comments from the party to the proceedings.
Reason 2.11: In the present case, despite there being claim amendments during the opposition proceedings, the Board is of the opinion that the (anonymous) late-filed third party observations are to be disregarded and not mentioned in the decision. No party commented on the observations either in accordance with reason 2.10.
A clear cut case, wherein the Board of Appeal overrules an earlier decision by the Opposition Division. The decision deals with an aspect in claim 1 that relates to the purity of a virus preparation that is used in cancer therapy. It was indicated in the application as filed and also not disputed by the parties, that a virus preparation should be 'clonal' or as clean as possible, which means that it should have low numbers of defective particles to reduce negative side effects (such as immune responses by the patient). The invention as claimed was directed to the word 'clonal' in the main claim, but unfortunately did not show (in the application as filed) that there was a difference in activity between a clonal preparation and a non-clonal preparation. Post-filed data did not help the proprietor to re-formulate the problem to be solved in the inventive step assessment. Yet another example that it is still wise to have the real data in there, when filing the application, and not simply rely on what might appear logical as the solution to the posed problem, or new formulated problem to be solved.
European patent No. 1 032 269.
II. The patent at issue has the title "Treatment of neoplasms with interferon-sensitive, clonal viruses".
IV. The opposition division decided that the subject-matter of the claims as granted was novel and involved an inventive step.
VIII. The parties were summoned to oral proceedings to be held on 11 December 2014. The board expressed its preliminary view in a communication pursuant to Article 15(1) RPBA.
IX. By letter dated 22 October 2014 the respondent announced that it would not attend the oral proceedings.
Document D1 represented the closest prior art. The subject-matter of claim 1 differed from the disclosure of document D1 only in the clonal character of the virus population. The technical effect of this difference was, according to paragraph  of the opposed patent: "to ensure or increase the genetic homogeneity of a particular virus strain and to remove defective interfering particles". The objective technical problem was thus the provision of an improved virus-based therapy for the treatment of neoplasms in a mammal, where the improvement consisted in increased purity.
Defective virus particles could cause an unwanted stimulation of the patient's immune system. This was in particular disadvantegous in the treatment of cancer patients due to their usually weak constitution. A high genetic homogeneity of the administered virus particles was moreover desirable for safety reasons, as viruses with deviating sequences could show increased virulence and cause non-reproducible therapeutic effects. These aspects played a crucial role in market authorisation for viral preparations for therapeutic purposes. Hence, it was the constant aim of the person skilled in the field to improve virus-based therapies by reducing the number of defective particles in the virus preparation and by ensuring that the functional virus particles were genetically homogenous. The skilled person would thus be motivated to improve the purity and genetic homogeneity of the virus population disclosed in document D1 and to provide a clonal virus population. Therefore, the skilled person would combine the teaching of document D1 with the virus purification methods disclosed in either document D4 or D11 and arrive at the claimed subject-matter in an obvious manner.
A comparison between a parent virus and a clonal population derived therefrom had not been carried out in the patent in suit. The technical effect - high therapeutic index of the clonal population - allegedly shown in document D14 could not be relied on for the formulation of the technical problem because this effect was neither disclosed in nor derivable from the patent in suit.
Document D12 would not have deterred the skilled person from using a clonal virus population in the treatment of neoplasms in mammals.
Document D1 represented the closest prior art. In the light of document D1, the objective technical problem was to provide an improved virus-based therapy for treating neoplasms. This problem was solved by the use of an interferon-sensitive clonal virus as defined in the claims of the main request.
Since the examples of the patent demonstrated a credible anti-cancer activity for clonal viruses, the supplementary post-filed evidence provided by document D14 could be taken into consideration. This document, which compared clonal virus strain PV701 and the non-clonal parent strain MK701, showed that clonal viruses resulted in lower mortality of non-cancer cell types and a higher therapeutic index. The principal concept underlying the claimed invention was that clonal viruses demonstrated lower cytotoxicity to normal cells than non-clonal viruses.
Starting from document D1, the skilled person would have found no suggestion to use a clonal virus for the treatment of neoplasms. Even if in view of document D1 a skilled person could have produced a clonal virus, the question was whether he would have done so in the expectation of some improvement. Also, there was a general acceptance in the art that viral therapies should use non-clonal viruses, see for example document D12, page 1, last paragraph, which confirmed that NDV vaccines should use uncloned NDV. Hence, the skilled person seeking to prepare an improved anti-cancer therapy would have been led towards the use of a non-clonal virus.
XIII. The appellant requested that the decision under appeal be set aside and the patent be revoked.
The respondent had requested in writing by letter dated 10 December 2010 that the appeal be rejected in its entirety, i.e. that the patent be maintained as granted.
3. The patent in suit concerns the treatment of mammalian neoplasms with viruses that are able to cause the death of neoplastic cells which have a deficiency in the interferon-mediated anti-viral response while normal cells which possess an intact interferon-mediated anti-viral response limit the replication of the virus and are not killed. The viruses are RNA viruses, in particular paramyxoviruses such as Newcastle Disease Virus (NDV).
[...] 5. It is common ground between the parties that document D1 represents the closest prior art with respect to the claimed subject-matter. Document D1 (see paragraph bridging pages 3 and 4; page 10, lines 11 to 15; examples) discloses a method of treating cancer in mammals by administering to the mammal an effective amount of a paramyxovirus. In a preferred embodiment the virus is NDV. The document discloses that NDV has direct cytolytic activity on the cancer cells and is capable of specifically differentiating cancer cells from normal, healthy cells. It is reported that one dose of NDV, given intralesionally to athymic mice, causes complete and permanent eradication of a wide variety of human tumours. Document D1 thus relates to the same purpose as the patent in suit - the treatment of cancer using interferon-sensitive, replication-competent RNA viruses capable of selectively killing neoplastic cells - and discloses one of the preferred viruses of the patent in suit, namely NDV.
9. The board notes that the patent in suit does not compare the efficacy of the parent non-clonal virus and a clonal population derived therefrom. Pursuant to paragraph  of the patent in suit the viruses of the invention possess the following three characteristics: "(i) they infect neoplastic cells resulting in their death; (ii) they are replication-competent in the neoplastic cells; and (iii) they are limited in killing of normal cells by the antiviral effects of interferon". This passage refers to the specific cytotoxicity of the viruses of the invention towards neoplastic cells, but not to a possible advantage of cloned versus uncloned virus populations. Indeed, the mention of "limited killing of normal cells" in this paragraph applies to any interferon-sensitive virus regardless of its clonality because, unlike neoplastic cells which are deficient in an interferon-mediated anti-viral response, normal healthy cells possess an intact interferon-mediated anti-viral response which protects them from virus-induced cytolysis, see paragraph  of the patent in suit.
10. Accordingly, document D14 can not be relied on for the formulation of the technical problem because the technical effect shown in document D14 is neither disclosed in nor derivable from the patent in suit (see Case Law of the Boards of Appeal of the EPO, 7th edition 2013, section I.D.4.4.1).
11. It follows from points 7 to 10 above that starting from document D1 the problem to be solved is the provision of an improved virus-based therapy for the treatment of neoplasms in a mammal. The board is satisfied that the solution provided by the subject-matter of claim 1 solves this problem.
12. It remains to be answered whether or not the skilled person, when faced with the technical problem defined in point 11 above, would have modified the teaching in the closest prior art document D1 so as to arrive at the claimed invention in an obvious manner.
13. The prior art describes the provision of clonal sub-populations of NDV strains by plaque purification, see document D4, page 435, third full paragraph, and document D11, page 116, lines 1 to 3.
16. The board is not convinced that document D12 would have deterred the skilled person from using a clonal virus population in the treatment of neoplasms in mammals. The paragraph relied on by the respondent states that "[w]e must be aware that the populations of Newcastle disease virus that spread in the field, or the populations that make up a vaccine stock [note by the board: the NDV vaccine for use in chickens] are not clonal". In the board's view this corresponds to what was known in the art at the priority date, namely that "both wild-type isolates and laboratory cultured strains of Newcastle disease virus contain several subpopulations", see document D11, page 113, first paragraph. A requirement that NDV should be uncloned when used in mammals, not in chickens, and for the treatment of neoplasms, and not as a vaccine, is not apparent from document D12.
This decision has European Case Law Identifier: ECLI:EP:BA:2014:T099510.20141211. The whole decision can be found here. The file wrapper can be found here. Picture by GH.
This appeal extends from a decision of the Opposition Division. The patent owner (Appellant) filed the appeal. Claim 8 of auxiliary request 3 has an interesting claim construction. It is a "use-claim", and as such a claim which relates to a "process". In the claim, the product-to-be-used has been defined as a product-by-process. This claim relates to a post-grant amendment and, as such, the Board has to discuss the Art. 84 EPC objection of the respondents (Opponents). When considering the Art. 84 PC objection, the Board has to consider whether the well-established case law regarding product-by-process claims also applies to this "use-claim". In this context, the Board also discusses argument of the Appellant which relate to "the interpretation of such a claim by a national court in infringement proceedings" and "similarities with Swiss-type claims".
characterized in that in step a) a powdered solid solution of the carbides or carbonitrides of zirconium and niobium having a mass ratio Nb/(Zr + Nb) of at least 0.5 is used to form said powder mixture."
"a mass ratio Nb/(Zr+Nb) of 0.6 or more".
"8. Use of the sintered cemented carbide body obtained according to the method of any one of claims 1 to 7 for the production of a cutting tool."
3.1 The feature that the use of claim 8 concerns a product "obtained according to the method of any one of claims 1 to 7" was not present in the claims as granted but is the result of a post-grant amendment. Hence, the objection under Article 84 EPC raised against this feature has to be considered.
3.2 Article 84 EPC provides that the claims shall define the matter for which protection is sought and that they shall be clear and concise and be supported by the description. The requirement laid down in this article that the claims have to be clear reflects the demand for legal certainty, which is of paramount importance in any system where the rights of the public are affected by the grant of a monopoly.
3.3 Present claim 8 is directed to the use of the sintered cemented carbide body obtained according to the method of any one of claims 1 to 7 for the production of a cutting tool. Hence, the claim [claim 1] comprises process and product features and is notionally equivalent to a claim directed to a process for the production of a cutting tool using the sintered cemented carbide body (see G2/88, point 5.1 of the Reasons, OJ 1990, 93). Accordingly, as acknowledged by the appellant itself, the steps of the method for the production of the sintered cemented carbide body do not form part of the claimed activity [claim 8]. Indeed, had the appellant intended to include these steps in the claimed method it could have drafted the claim in different terms, for instance by directing it to a process for the production of a cutting tool using a sintered cemented carbide body and comprising the production of said sintered cemented carbide body according to the method of any one of claims 1 to 7.
Therefore, the reference in claim 8 to the steps of the method for the production of the sintered cemented carbide body does not define process features but solely the features of the product (the sintered body) used in the claimed method. As a consequence, the issue at stake when considering this reference in the context of Article 84 EPC is the assessment of the clarity of product features.
3.4 To ensure legal certainty the definition of a product is normally done by means of the structural features of the product, i.e. by features which can be verified on the product. A definition in terms of the process of manufacture, in the following a "product-by-process definition", in lieu of a definition in terms of structural features is reserved for cases wherein the latter definition is not possible. This principle is well established in the case law for a claim which is directed to a product, in the following a "product-by-process claim" (see for instance T150/82, point 10 of the Reasons, OJ 1984, 309).
It is true that present claim 8 is not directed to a product but to a process. However, there is no reason to make the principles underlying the assessment of the clarity of product features dependent on the fact that said product features appear in a claim directed to a product or in a claim directed to a method.
3.5 The appellant disagreed with this position and submitted that in case of infringement the features pertaining to the method of production of the sintered carbide would be fully taken into account by the court, so that the use of a sintered body which is merely obtainable by the method of any one of claims 1 to 7 but not actually obtained by this method would not infringe claim 8.
However, the Boards of Appeal are concerned only with validity and not with infringement, which is a matter reserved for the courts of the different contracting states, which may interpret the same claim in different ways. Accordingly, the Board is not in the position of considering the (possibly different) interpretations given to a "product-by process definition" in national infringement proceedings. This applies all the more in a case like the present one, wherein no specific decision of a national court has been submitted for consideration to the Board.
Moreover, although it is in general desirable that the interpretation of the meaning of the claims given by a court in infringement proceedings and that given by a board of appeal or a court when considering the validity of a claim are consistent with each other, situations exist wherein this is not achieved. Indeed an example of such a situation concerns "product-by-process claims". In the decision of the UK High Court of Justice, Chancery Division, Patents Court of 21 November 2014, in Hospira v. Genentech ( EWHC 3857, points 143 to 147) Mr Justice Birss considered that, as far as infringement is concerned, a product "obtained by" a process means a product which has actually been obtained by that process. However, he did not adopt the same interpretation for the issue of validity but took instead the view that a new process which produces a product identical to an old product cannot confer novelty on that product, an interpretation corresponding to the established case law of the Boards of Appeal for a "product-by-process claim" (Case Law of the Boards of Appeal of the European Patent Office, 7h edition 2013, II.A.7.). Hence, the issue raised by the appellant is not specific to the use of "product-by-process definitions" in use claims but concerns also "product-by-process claims". Therefore, it cannot support the appellant's view that the requirements to allow a "product-by-process definition" are to be considered only for claims directed to a product and not for claims directed to a use.
Finally, the issue to be considered in the present case is not the interpretation of the claim for assessing novelty and inventive step, but rather whether the definition of the product chosen by the appellant is clear or not.
In view of these considerations, the allegedly different way in which claim 8 would be interpreted in infringement proceedings fails to dissuade the Board from applying the principles developed for "product-by-process" claims when considering the definition of the sintered body used in claim 8.
3.6 The same applies in respect to the reference to Swiss type claims made by the appellant. The so-called Swiss-type claims are claims directed to the use of a substance or composition for the manufacture of a medicament for a specified therapeutic application. According to decision G5/83 (OJ 1985, 64) they were to be allowed even in a case in which the process of manufacture as such does not differ from known processes using the same active ingredient, provided that the therapeutic application is new and inventive. The application of this special approach, which derived the novelty from the intended therapeutic use of the medicament, was restricted to claims to the use of substances or compositions intended for use in a method referred to in Article 52(4) EPC 1973 (corresponding to present Article 53(c) EPC), a so-called "medical use" (G5/83, last paragraph of point 21 of the Reasons). Accordingly, this approach finds no place in the consideration of a "product-by-process definition", i.e. a definition which does not involve the intended use of a product, let alone an intended "medical use", but rather concerns its process of production.
3.7 Therefore, the Board is satisfied that when considering the definition of a product in terms of its production process the principles developed in the jurisprudence for the "product-by-process claims" are in general to be applied, also in the case of a claim directed to the use of that product.
3.8 Applying said principles to present claim 8 the Board sees to reason why it would not have been possible to define the sintered body in terms of structural features, namely composition, microstructure and mechanical properties, i.e. the features which characterise the product in the examples of the patent in suit.
The appellant failed to convince the Board to the contrary, because it did not indicate concretely in which respect it would not be possible to define in terms of structural features a carbide body obtained by the method of claims 1 to 7.
3.9 Accordingly, the use of a product-by-process definition in claim 8 of auxiliary request 3 results in a lack clarity.
2. The case is remitted to the Opposition Division for further prosecution on the basis of Auxiliary Request 4 filed with the statement of grounds of appeal on 24 February 2014.
This decision has European Case Law Identifier: ECLI:EP:BA:2015:T008114.20150312. The whole decision can be found here. The file wrapper can be found here. Advertisement "Old Processee Starchee no goodee" "It smellee rots & makee shirts yellee", "I will never use any other but the New Process Starch" published by Boston Public Library obtained via Flickr under CC BY 2.0 license.
The European Patent Organisation has launched a structural reform of its Boards of Appeal.
The main features of the proposed reform are described in the document (CA/16/15), which has been presented by the President of the European Patent Office to the Administrative Council in March and has met with broad support. The Council gave its general support to the policy lines as presented. First concrete proposals will be elaborated for decision at the next Council meeting, in June 2015. These proposals will have to take due account of contributions received as a result of a broad consultation of stakeholders. The user consultation was launched on 30 April and will run until 30 June 2015.
The aim of the reform is to ensure and increase the organisational and managerial autonomy of the Boards of Appeal, the perception of their independence as enshrined in Article 23 EPC, as well as their efficiency within the legal framework of the current European Patent Convention.
The aim is also to take account of national, European and international developments aiming at enhancing the autonomy of the Judiciary and/or the efficiency.
The European Patent Office, which will prepare the relevant concrete proposals to be submitted to the Administrative Council, would welcome contributions from the users of the European patent system concerning possible improvements of the functioning of the Boards of Appeal with respect to both their autonomy and the perception of their independence and their efficiency. Contributions from the users will be duly considered in the preparation of the future concrete proposals and presented to the Administrative Council. Contributions will be processed and presented to the Administrative Council in an anonymised manner and an excerpt of the contributions will be made available to the general public.
The user consultation will run until 30 June 2015, and is available to June 30, 2015 on the EPO website under https://forms.epo.org/law-practice/consultation/ongoing/boards-of-appeal-form.html.
T 2541/11 - "Right to be heard not absolute, but must be balanced"
The appellant-opponent lodged an appeal against the interlocutory decision of the opposition division on the amended form in which European patent no. 1394387 could be maintained. The appellant-proprietor also lodged an appeal against the above interlocutory decision. The appellant-opponent filed a new document, E12, with their grounds of appeal. The Board did not admit this new document.
I. The appellant-opponent lodged an appeal, received 12 December 2011, against the interlocutory decision of the opposition division posted on 13 October 2011 on the amended form in which European patent no. 1394387 could be maintained and paid the appeal fee simultaneously. The statement setting out the grounds of appeal was filed on 23 February 2012.
The appellant-proprietor also lodged an appeal, received 14 December 2011 against the above interlocutory decision and paid the appeal fee simultaneously. The statement setting out the grounds of appeal was filed on 20 February 2012.
II. The opposition was filed against the patent as a whole and based inter alia on Article 100(a) together with Articles 52(1) and 54(3) EPC for lack of novelty and Article 56 EPC for lack of inventive step.
The division held, inter alia, that the grounds for opposition (novelty and inventive step) mentioned in Article 100(a) EPC did not prejudice maintenance of the patent as amended according to an auxiliary request, having regard to the following documents, amongst others: E1, E4, E6, E9.
III. The appellant-opponent filed the following document with their grounds of appeal: E12.
Objection acc. to Rule 106 EPC; in the name of the opponent.
In an interlocutory decision of 25 April 2014 in the Petition for Review case R19/12, the Chairman of the Enlarged Board of Appeal was replaced having been accused of potential partiality in view of his role as Vice President of the EPO and as such subject to the supervisory authority of the President of the EPO under Article 10(2)(f) EPC (R19/12 r.14.1 in conjunction with r.16).
As a consequence, the EPO took internal measures to reduce the consequences of the double function, but did not officially publish the measures.
r.39.6 Consequently, the Board considers that it is appropriate to apply the legal concept of "normative concordance" so that a balance between the conflicting legal / institutional provisions of Article 10(3) EPC (in respect of management functions) and Article 23(3) EPC (in respect of judicial functions) can be achieved with regard to the Chairman's dual duties as VP3 and Chairman of the Enlarged Board of Appeal.
r.39.7 In applying the concept of "normative concordance" to the present case, the Board concludes that the President's power to give instructions to the Chairman in his function as VP3 pursuant to Article 10(2)(f) and (3) EPC is limited by virtue of Article 23(3) EPC.
if and to the extent that any such instruction, direction or assistance might affect him and/or any other member of the boards of appeal, including the Enlarged Board of Appeal, directly or indirectly, in performing their judicial duties (see also Braendli, Münchner Gemeinschaftskommentar EPÜ, supra, Art. 10, para. 53, and Art. 11, para. 37).
In R. 8/13 this issue is raised for the third time. The focus now shifts to whether the current way of working complies with international law.
The Enlarged Board decides that that is the case. This decision seems for the time being to end the discussion on partiality of the Chairman of the Enlarged Board in view of the double function of also being a Vice President (of DG3).
The Enlarged Board reiterates that it would be best to remove the organisational conflicts but that that is in issue for the legislator.


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Orders being given for the fitting up of the place of worship, in this and the following chapter care is taken about the priests that were to minister in this holy place, as the menial servants of the God of Israel. He hired servants, as a token of his purpose to reside among them. In this chapter, I. He pitches upon the persons who should be his servants (v. 1). II. He appoints their livery; their work was holy, and so must their garments be, and unanswerable to the glory of the house which was now to be erected (v. 2-5). 1. He appoints the garments of his head-servant, the high priest, which were very rich. (1.) An ephod and girdle, (v. 6�). (2.) A breast-plate of judgment (v. 15�), in which must be put the urim and thummim (v. 30). (3.) The robe of the ephod (v. 31�). (4.) The mitre (v. 36�). 2. The garments of the inferior priests (v. 40�). And these also were shadows of good things to come.
I. The priests nominated: Aaron and his sons, v. 1. Hitherto every master of a family was priest to his own family, and offered, as he saw cause, upon altars of earth; but now that the families of Israel began to be incorporated into a nation, and a tabernacle of the congregation was to be erected, as a visible centre of their unity, it was requisite there should be a public priesthood instituted. Moses, who had hitherto officiated, and is therefore reckoned among the priests of the Lord (Ps. 99:6), had enough to do as their prophet to consult the oracle for them, and as their prince to judge among them; nor was he desirous to engross all the honours to himself, or to entail that of the priesthood, which alone was hereditary, upon his own family, but was very well pleased to see his brother Aaron invested in this office, and his sons after him, while (how great soever he was) his sons after him would be but common Levites. It is an instance of the humility of that great man, and an evidence of his sincere regard for the glory of God, that he had so little regard to the preferment of his own family. Aaron, who had humbly served as a prophet to his younger brother Moses, and did not decline the office (ch. 7:1), is now advanced to be a priest, a high priest to God; for he will exalt those that abase themselves. Nor could any man have taken this honour to himself, but he that was called of God to it, Heb. 5:4. God had said of Israel in general that they should be to him a kingdom of priests, ch. 19:6. But because it was requisite that those who ministered at the altar should give themselves wholly to the service, and because that which is every body's work will soon come to be nobody's work, God here chose from among them one to be a family of priests, the father and his four sons; and from Aaron's loins descended all the priests of the Jewish church, of whom we read so often, both in the Old Testament and in the New. A blessed thing it is when real holiness goes, as the ceremonial holiness did, by succession in a family.
II. The priests' garments appointed, for glory and beauty, v. 2. Some of the richest materials were to be provided (v. 5), and the best artists employed in the making of them, whose skill God, by a special gift for this purpose, would improve to a very high degree, v. 3. Note, Eminence, even in common arts, is a gift of God, it comes from him, and, as there is occasion, it ought to be used for him. He that teaches the husbandman discretion teaches the tradesman also; both therefore ought to honour God with their gain. Human learning ought particularly to be consecrated to the service of the priesthood, and employed for the adorning of those that minister about holy things. The garments appointed were, 1. Four, which both the high priest and the inferior priests wore, namely, the linen breeches, the linen coat, the linen girdle which fastened it to them, and the bonnet or turban; that which the high priest wore is called a mitre. 2. Four more, which were peculiar to the high priest, namely, the ephod, with the curious girdle of it, the breast-plate of judgment, the long robe with the bells and pomegranates at the bottom of it, and the golden plate on his forehead. These glorious garments were appointed, (1.) That the priests themselves might be reminded of the dignity of their office, and might behave themselves with due decorum. (2.) That the people might thereby be possessed with a holy reverence of that God whose ministers appeared in such grandeur. (3.) That the priests might be types of Christ, who should offer himself without spot to God, and of all Christians, who have the beauty of holiness put upon them, in which they are consecrated to God. Our adorning, now under the gospel, both that of ministers and Christians, is not to be of gold, and pearl, and costly array, but the garments of salvation, and the robe of righteousness, Isa. 61:10; Ps. 132:9, 16. As the filthy garments wherewith Joshua the high priest was clothed signified the iniquity which cleaved to his priesthood, from which care was taken that it should be purged (Zec. 3:3, 4.), so those holy garments signified the perfect purity that there is in the priesthood of Christ; he is holy, harmless, and undefiled.
Directions are here given concerning the ephod, which was the outmost garment of the high priest. Linen ephods were worn by the inferior priests, 1 Sa. 22:18. Samuel wore one when he was a child (1 Sa. 2:18), and David when he danced before the ark (2 Sa. 6:14); but this which the high priest only wore was called a golden ephod, because there was a great deal of gold woven into it. It was a short coat without sleeves, buttoned closely to him, with a curious girdle of the same stuff (v. 6-8); the shoulder-pieces were buttoned together with two precious stones set in gold, one on each shoulder, on which were engraven the names of the children of Israel, v. 9�. In allusion to this, 1. Christ our high priest appeared to John girt about the breast with a golden girdle, such as was the curious girdle of the ephod, Rev. 1:13. Righteousness is the girdle of his loins (Isa. 11:6), and should be of ours, Eph. 6:14. He is girt with strength for the work of our salvation, and is ready for it. 2. The government is said to be upon his shoulders (Isa. 9:6), as Aaron had the names of all Israel upon his shoulders in precious stone. He presents to himself and to his Father a glorious church, Eph. 5:27. He has power to support them, interest to recommend them, and it is in him that they are remembered with honour and favour. He bears them before the Lord for a memorial (v. 12), in token of his appearing before God as the representative of all Israel and an advocate for them.
I. The tribes of Israel were recommended to God's favour in twelve precious stones, v. 17�, 19. Some question whether Levi had a precious stone with his name or no. If not, Ephraim and Manasseh were reckoned distinct, as Jacob had said they should be, and the high priest himself, being head of the tribe of Levi, sufficiently represented that tribe. If there was a stone for Levi, as is intimated by this, that they were engraven according to their birth (v. 10), Ephraim and Manasseh were one in Joseph. Aaron was to bear their names for a memorial before the Lord continually, being ordained for men, to represent them in things pertaining to God, herein typifying our great high priest, who always appears in the presence of God for us. 1. Though the people were forbidden to come near, and obliged to keep their distance, yet by the high priest, who had their names on his breast-plate, they entered into the holiest; so believers, even while they are here on this earth, not only enter into the holiest, but by faith are made to sit with Christ in heavenly places, Eph. 2:6. 2. The name of each tribe was engraven in a precious stone, to signify how precious, in God's sight, believers are, and how honourable, Isa. 43:4. They shall be his in the day he makes up his jewels, Mal. 3:17. How small and poor soever the tribe was, it was a precious stone in the breast-plate of the high priest; thus are all the saints dear to Christ, and his delight is in them as the excellent ones of the earth, however men may esteem them as earthen pitchers, Lam. 4:2. 3. The high priest had the names of the tribes both on his shoulders and on his breast, intimating both the power and the love with which our Lord Jesus intercedes for those that are his. He not only bears them up upon his heart, as the expression here is (v. 29), carries them in his bosom (Isa. 40:11), with the most tender affection. How near should Christ's name be to our hearts, since he is pleased to lay our names so near his! and what a comfort it is to us, in all our addresses to God, that the great high priest of our profession has the names of all his Israel upon his breast before the Lord for a memorial, presenting them to God as the people of his choice, who were to be made accepted in the beloved! Let not any good Christians fear that God has forgotten them, nor question his being mindful of them upon all occasions, when they are not only engraven upon the palms of his hands (Isa. 49:16), but engraven upon the heart of the great intercessor. See Cant. 8:6.
II. The urim and thummim, by which the will of God was made known in doubtful cases, were put in this breast-plate, which is therefore called the breast-plate of judgment, v. 30. Urim and thummim signify light and integrity; many conjectures there are among the learned what they were; we have no reason to think they were any thing that Moses was to make more than what was before ordered, so that either God made them himself, and gave them to Moses, for him to put into the breast-plate, when other things were prepared (Lev. 8:8), or no more is meant than a declaration of the further use of what was already ordered to be made. I think the words may be read thus, And thou shalt give, or add, or deliver, to the breast-plate of judgment, the illuminations and perfections, and they shall be upon the heart of Aaron; that is, "He shall be endued with a power of knowing and making known the mind of God in all difficult doubtful cases, relating either to the civil or ecclesiastical state of the nation.'' Their government was a theocracy: God was their King, the high priest was, under God, their ruler, the urim and thummim were his cabinet-council; probably Moses wrote upon the breast-plate, or wove into it, these words, Urim and Thummim, to signify that the high priest, having on him this breast-plate, and asking counsel of God in any emergency relating to the public, should be directed to take those measures, and give that advice, which God would own. If he was standing before the ark (but without the veil) probably he received instructions from off the mercy-seat, as Moses did (ch. 25:22); thus, it should seem, Phinehas did, Jdg. 20:27, 28. If he was at a distance from the ark, as Abiathar was when he enquired of the Lord for David (1 Sa. 23:6, etc.), then the answer was given either by a voice from heaven or rather by an impulse upon the mind of the high priest, which last is perhaps intimated in that expression, He shall bear the judgment of the children of Israel upon his heart. This oracle was of great use to Israel; Joshua consulted it (Num. 27:21), and, it is likely, the judges after him. It was lost in the captivity, and never regained after, though, it should seem, it was expected, Ezra 2:63. But it was a shadow of good things to come, and the substance is Christ. He is our oracle; by him God in these last days makes known himself and his mind to us, Heb. 1:2; Jn. 1:18. Divine revelation centres in him, and comes to us through him; he is the light, the true light, the faithful witness, the truth itself, and from him we receive the Spirit of truth, who leads into all truth. The joining of the breast-plate to the ephod denotes that his prophetical office was founded in his priesthood; and it was by the merit of his death that he purchased this honour for himself and this favour for us. It was the Lamb that had been slain that was worthy to take the book and to open the seals, Rev. 5:9.
Here is, 1. Direction given concerning the robe of the ephod, v. 31�. This was next under the ephod, and reached down to the knees, was without sleeves, and was put on over their head, having holes on the sides to put the arms through, or, as Maimonides describes it, was not sewed together on the sides at all. The hole on the top, through which the head was put, was carefully bound about, that it might not tear in the putting on. In religious worship, care must be taken to prevent every thing that may distract the minds of the worshippers, or render the service despicable. Round the skirts of the robe were hung golden bells, and the representations of pomegranates made of yarn of divers colours. The pomegranates added to the beauty of the robe, and the sound of the bells gave notice to the people in the outer court when he went into the holy place to burn incense, that they might then apply themselves to their devotions at the same time (Lu. 1:10), in token of their concurrence with him in his offering, and their hopes of the ascent of their prayers to God in virtue of the incense he offered. Aaron must come near to minister in the garments that were appointed him, that he die not. It is at his peril if he attend otherwise than according to the institution. This intimates that we must serve the Lord with fear and holy trembling, as those that know we deserve to die, and are in danger of making some fatal mistake. Some make the bells of the holy robe to typify the sound of the gospel of Christ in the world, giving notice of his entrance within the veil for us. Blessed are those that hear this joyful sound, Ps. 89:15. The adding of the pomegranates, which are a fragrant fruit, denotes the sweet savour of the gospel, as well as the joyful sound of it, for it is a savour of life unto life. The church is called an orchard of pomegranates. 2. Concerning the golden plate fixed upon Aaron's forehead, on which must be engraven, Holiness to the Lord (v. 36, 37), or The holiness of Jehovah. Aaron must hereby be reminded that God is holy, and that his priests must be holy. Holiness becomes his house and household. The high priest must be sequestered from all pollution, and consecrated to God and to his service and honour, and so must all his ministrations be. All that attend in God's house must have Holiness to the Lord engraven upon their foreheads, that is, they must be holy, devoted to the Lord, and designing his glory in all they do. This must appear in their forehead, in an open profession of their relation to God, as those that are not ashamed to own it, and in a conversation in the world answerable to it. It must likewise be engraven like the engravings of a signet, so deep, so durable, not painted to be washed off, but sincere and lasting; such must our holiness to the Lord be. Aaron must have this upon his forehead, that he may bear the iniquity of the holy things (v. 38), and that they may be accepted before the Lord. Herein he was a type of Christ, the great Mediator between God and man, through whom it is that we have to do with God. (1.) Through him what is amiss in our services is pardoned. The divine law is strict; in many things we come short of our duty, so that we cannot but be conscious to ourselves of much iniquity cleaving even to our holy things; when we would do good evil is present; even this would be our ruin if God should enter into judgment with us. But Christ, our high priest, bears this iniquity, bears it for us so as to bear it from us, and through him it is forgiven to us and not laid to our charge. (2.) Through him what is good is accepted; our persons, our performances, are pleasing to God upon the account of Christ's intercession, and not otherwise, 1 Pt. 2:5. His being holiness to the Lord recommends all those to the divine favour that are interested in his righteousness, and clothed with his Spirit; and therefore he has said it was for our sakes that he sanctified himself, Jn. 17:19. Having such a high priest, we come boldly to the throne of grace, Heb. 4:14�. 3. The rest of the garments are but named (v. 39), because there was nothing extraordinary in them. The embroidered coat of fine linen was the innermost of the priestly garments; it reached to the feet, and the sleeves to the wrists, and was bound to the body with a girdle or sash of needle-work. The mitre, or diadem, was of linen, such as kings anciently wore in the east, typifying the kingly office of Christ. He is a priest upon a throne (Zec. 6:13), a priest with a crown. These two God has joined, and we must not think to separate them.
We have here, 1. Particular orders about the vestments of the inferior priests. They were to have coats, and girdles, and bonnets, of the same materials with those of the high priest; but there was a difference in shape between their bonnets and his mitre. Theirs, as his, were to be for glory and beauty (v. 40), that they might look great in their ministration: yet all this glory was nothing compared with the glory of grace, this beauty nothing to the beauty of holiness, of which these holy garments were typical. They are particularly ordered, in their ministration, to wear linen breeches, v. 42. This teaches us modesty and decency of garb and gesture at all times, especially in public worship, in which a veil is becoming, 1 Co. 11:5, 6, 10. It also intimates what need our souls have of a covering, when we come before God, that the shame of their nakedness may not appear. 2. A general rule concerning the garments both of the high priest and of the inferior priests, that they were to be put upon them, at first, when they were consecrated, in token of their being invested in the office (v. 41), and then they were to wear them in all their ministrations, but not at other times (v. 43), and this at their peril, lest they bear iniquity and die. Those who are guilty of omissions in duty, as well as omissions of duty, shall bear their iniquity. If the priests perform the instituted service, and do not do it in the appointed garments, it is (say the Jewish doctors) as if a stranger did it, and the stranger that comes nigh shall be put to death. Nor will God connive at the presumptions and irreverences even of those whom he causes to draw most near to him; if Aaron himself put a slight upon the divine institution, he shall bear iniquity, and die. To us these garments typify, (1.) The righteousness of Christ; if we appear not before God in this, we shall bear iniquity and die. What have we to do at the wedding-feast without a wedding-garment, or at God's altar without the array of his priests? Mt. 22:12, 13. (2.) The armour of God prescribed Eph. 6:13. If we venture without that armour, our spiritual enemies will be the death of our souls, and we shall bear the iniquity, our blood will be upon our own heads. Blessed is he therefore that watcheth, and keepeth his garments, Rev. 16:15. 3. This is said to be a statute for ever, that is, it is to continue as long as the priesthood continues. But it is to have its perpetuity in the substance of which these things were the shadows.

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Earlier this year, the Supreme Court of Canada denied leave to appeal in the case of Wright v College and Assn. of Registered Nurses of Alberta, raising uncertainty over the test for discrimination under human rights legislation, particularly in Alberta. In the Supreme Court’s most recent human rights decision, Moore v. British Columbia (Ministry of Education), the court appeared to return to the traditional prima facie approach to discrimination first set out in the 1985 decision in Ontario Human Rights Commission and O’Malley v Simpsons-Sears.
Yet in Lethbridge Regional Police Service v. Lethbridge Police Assn., the Alberta Court of Appeal declined to cite Moore, and applied a restrictive test for discrimination in the employment context. This approach operated to the detriment of Lester, a probationary police constable whose claim of discrimination was dismissed because the Lethbridge Regional Police Service appeared to have at least some non-discriminatory reasons for not extending his contract, and because there was found to be no evidence of stereotyping or egregious discrimination. The Court of Appeal took a similarly restrictive approach in Wright v. College and Assn. of Registered Nurses of Alberta, in which the Supreme Court declined to grant leave to appeal.
On June 20, 2013, the Supreme Court also denied leave to appeal in the Lethbridge Police Assn case. As is the usual practice, the panel (Justices LeBel, Karakatsanis and Wagner) did not provide reasons for decision. This is an unfortunate development given the need for clarity over the test for discrimination. Until the Supreme Court decides to tackle that issue head on, it is to be hoped that the Court of Appeal will follow the Supreme Court’s direction in Moore, and cease its inclination to impose onerous burdens on human rights claimants.
Lethbridge Regional Police Service v. Lethbridge Police Assn., 2013 CarswellAlta 197, leave to appeal denied, June 20, 2013, Supreme Court of Canada.
Moore v. British Columbia (Ministry of Education), 2012 CarswellBC 3446 (S.C.C.).
Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CarswellOnt 887 (S.C.C.).
Wright v. College and Assn. of Registered Nurses of Alberta, 2012 CarswellAlta 1528 (Alta. C.A.).
Jennifer Koshan is an associate professor with the University of Calgary Faculty of Law and a member of the Alberta Bar. Her teaching and research interests are in the areas of constitutional law, equality and human rights, state responses to violence, legal theory, and public interest advocacy. She can be reached at koshan@ucalgary.ca. This article originally appeared on the University of Calgary Faculty of Law's blog, Ablawg (http://ablawg.ca/).

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While the two statutes making the Union Pacific Railroad grants did not double the price of the even numbered sections within the place limits, yet that was done by the Act of March 6, 1868, c. 20, 15 Stat. 39, and the even numbered sections within the place limits were from that time not open to selection as indemnity lands.
The act of Congress provides in terms that the sections of land should be subject to entry only under the homestead and preemption laws, and the Land Department had no power to turn one of those sections over to a railroad company.
No title to indemnity lands is vested until an approved selection has been made; up to which time Congress has full power to deal with lands in the indemnity limits as it sees fit.
This is not an action to recover the possession of land or to quiet title thereto, but it is clearly a matter of ordinary judicial cognizance not excluded therefrom.
The contention that plaintiff in error is an innocent purchaser for value was not set up as a defense in the state courts.
On May 20, 1899, Monroe D. Herington, the defendant in error, recovered a judgment in the District Court of Labette County, Kansas, against Lee Clark for the sum of $3,032.28, which judgment was affirmed by the Supreme Court of that state on November 10, 1900. Thereupon the case was brought here on writ of error.
1877, the tract in controversy among others in lieu thereof. At the time of such selection, the tract was unimproved and without actual occupation. The selection was approved by the Commissioner of the General Land Office, but no patent was issued. On September 5, 1884, the railroad company conveyed the land to Lee Clark. He conveyed by warranty deed. Herington is a subsequent grantee in the chain of title, and is also the assignee from Clark's immediate grantee of all his rights under Clark's deed, including the right to recover damages for any breach of the covenants therein contained.
The tract was in an even-numbered section and within the place limits of the grant, made by Acts of Congress of date July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, to the Union Pacific Railroad Company, Eastern Division.
On July 21, 1886, the selection by the Missouri, Kansas & Texas Railroad Company was cancelled by order of the Commissioner of the General Land Office. Notice of this order was given to the railroad company, as also time to appeal therefrom, but no appeal was ever taken. On July 28, 1888, E. M. Cox, who had, on July 31, 1886, taken forcible possession of the land, filed his declaratory statement claiming settlement. On July 26, 1889, he made final proof, paid the government price, and received his patent certificate. Thereafter on October 15, 1890, a patent was issued to him.
"Now it is clear that the even-numbered sections, within the place limits of the Leavenworth road, were reserved by the act of 1863 for purposes distinctly declared by Congress, and which might be wholly defeated if the Missouri-Kansas company were permitted to take them as indemnity lands under the act of 1866. The requirement in the second section of the act of 1863 that the 'reserved sections' which 'remained to the United States' within ten miles on each side of the Leavenworth road 'shall not be sold for less than double the minimum price of the public lands when sold,' nor be subject to sale at private entry until they had been offered at public sale to the highest bidder at or above the increased minimum price, the privilege given to actual bona fide settlers under the preemption and homestead laws to purchase those lands at the increased minimum price, after due proof of settlement, improvement, cultivation, and occupancy, and the right accorded to settlers on such sections under the homestead laws, improving, occupying, and cultivating the same, to have patents for not exceeding eighty acres each, are inconsistent with the theory that the even-numbered sections, so remaining to the United States, within the place limits of the Leavenworth road could be taken as indemnity lands for a railroad corporation."
only to entry under those (the preemption and homestead) laws."
The even-numbered sections within the place limits of the Union Pacific railroad grants were from that time therefore not open to selection as indemnity lands. It is true that this statute was not passed until after the grant to the Missouri, Kansas & Texas Railroad Company, nor until after it had filed its map of definite location with the Secretary of the Interior, which appears from an agreed statement of facts to have been on January 7, 1868, but it was passed before the completed construction of the railroad and long before the selection made by the company, and it is familiar law that no title to indemnity lands is vested until an approved selection has been made, and that, up to such time, Congress has full power to deal with lands in the indemnity limits as it sees fit. As said in Kansas Pacific Railroad v. Atchison Railroad, 112 U. S. 414, 112 U. S. 421: "Until selection was made, the title remained in the government, subject to its disposal at its pleasure." See also Ryan v. Railroad Company, 99 U. S. 382; Grinnel v. Railroad Company, 103 U. S. 739; Cedar Rapids &c. Railroad v. Herring, 110 U. S. 27; St. Paul Railroad v. Winona Railroad, 112 U. S. 720, 112 U. S. 731; Barney v. Winona &c. Railroad, 117 U. S. 228, 117 U. S. 232; Sioux City Railroad v. Chicago Railway, 117 U. S. 406, 117 U. S. 408; Wisconsin Railroad v. Price County, 133 U. S. 496, 133 U. S. 511; United States v. Missouri &c. Railway, 141 U. S. 358, 141 U. S. 375; Hewitt v. Shultz, 180 U. S. 139; Southern Pacific Railroad Company v. Bell, 183 U. S. 675.
than it had to grant lands in a military or Indian reservation. While the lands were within the jurisdiction of the Land Department for some purposes, they were not for all. The mode of their disposal was limited, and the Land Department had no authority to ignore that limited mode and dispose of them in any other way. This general doctrine as to the limitation of the powers of the Land Department has been affirmed by this Court in many cases and under different circumstances. Wilcox v. Jackson, 13 Pet. 498; United States v. Stone, 2 Wall. 525.
the rights of the government are ended. Railway Company v. Prescott, 16 Wall. 603; Railroad Company v. McShane, 22 Wall. 44.
Again, even before the acquiring of even an equitable title to the land as against the government, contracts made by actual settlers concerning their possessory rights and the title hoped to be acquired from the United States may be valid as between the parties thereto, and enforced in the courts. Lamb v. Davenport, 18 Wall. 307; Stark v. Starr, 94 U. S. 477.
Again, it is a well known fact that many agricultural lands and many mining claims are held by their owners with only final receipts from the government and without the issue of any patent. Yet the rights which accompany title are exercised by the parties and enforced by the courts. It will be noticed that this is not an action to recover the possession of any land, or one to quiet the title thereto. It is simply an action to recover damages for the breach of a contract in respect to the land, and the decision, in no respect controlling the action of the officers of the Land Department, is simply a determination of the rights which the parties have acquired by proceeding in the Land Department. This is clearly a matter of ordinary judicial cognizance, and one which by no statute of Congress or rule of the common law is excluded from such cognizance. Garland v. Wynn, 20 How. 6; Monroe Cattle Company v. Becker, 147 U. S. 47, 147 U. S. 57; Turner v. Sawyer, 150 U. S. 578.
application; that the act of 1896 also has no application, because that refers only to cases of lands patented or certified, and the confirmations of lands acquired by deed or contract from the party holding the patent or certificate, and here the railroad company never received any patent or certificate. In addition, prior to the passage of the act, a patent had been issued to Cox, and his title thus fully confirmed.
These considerations dispose of the only federal question presented in the record, and, there appearing no error, the judgment of the Supreme Court of Kansas is affirmed.

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One of the great things about working for StreamSend is working with some really interesting businesses. Art4Now is a great example of that.
Art4Now™ is an online retailer that sells fashion and collectibles – particularly, the annual poster – for the New Orleans Jazz & Heritage Festival, with which it is in close partnership Art4Now has a new handle on email marketing that is paying off in numerous ways.
The Festival is non-profit and Art 4Now donates a portion of its sales to benefit the New Orleans community outreach programs that the Festival supports. The Festival is held the last weekend of April or the first week of May.
As a premier world jazz event from the birthplace of jazz, the festival posters are eagerly sought out by shoppers nationally and internationally with big collector followings in Tokyo, Japan, the UK and Scandinavia. Art4Now produced the 2010 poster with Tony Bennett. The posters are also sold at local galleries and used widely throughout the city as a promotional tool for the festival.
As an online-only retailer, Art4Now saw the value of email newsletters to create and build its relationships. But their existing email software had no capability to track views, traffic, etc., was difficult to integrate with the website at a critical time of year, required lots of manual administration, and could undermine their online marketer reputation with internet service providers (ISPs) by not eliminating invalid or uninterested email addresses.
They reduced their customer distribution list to 20,000 customers, parsing out 5000 undeliverable addresses – saving money and effort, plus insuring a high-quality reputation with ISPs so that the good addresses would be reached and not blocked as Spam.
Art4Now increased open rates by 30% and click-through rates by 20%.
With our easier, intuitive tools, they doubled their mailings, letting them stay better in touch with an audience geared to one annual event. Increasing their e-mailings also helped them compete with other heavily-marketed New Orleans events like the Saints in the SuperBowl and the Mardi Gras.
Mission accomplished. We wish art4Now luck and a great time at the New Orleans Jazz Festival later this month!


On April 11, 1996, a group of Connecticut Medicaid recipients filed a lawsuit in the U.S. District Court for the District of Connecticut against the Connecticut Department of Social Services (DSS). The plaintiffs filed the lawsuit under the Medicaid Act, Title XIX of the Social Security Act (42 U.S.C § 1396), as well as 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment. The plaintiffs alleged that the DSS had improperly administered Connecticut's Medicaid program with respect to the process by which payments of durable medical equipment (DME) are authorized. Specifically, the plaintiffs challenged two of defendant's regulations: one in which the defendant was permitted to deny coverage to plaintiffs for DME not included on the defendant's fee schedule; and one in which the defendant identified specific equipment as being categorically excluded from coverage, including, inter alia, air conditioners and room humidifiers. Plaintiffs sought an injunction, barring the DSS from applying the exclusive fee schedule to their requests for approval of DME and requiring the DSS to provide the medically necessary DME for which plaintiffs contend they are eligible.
On January 7, 1997, the District Court (Judge Janet Bond Arterton) granted plaintiffs' Motion for Class Certification. The class consisted of two subclasses: (1) Connecticut Medicaid recipients who have been or who will be denied coverage for equipment on the basis that such equipment is not included on the DSS's fee schedule list for such equipment, and (2) Connecticut Medicaid recipients who have been or who will be denied coverage for equipment on the basis that such equipment is not included on the DSS's fee schedule list for such equipment due to the DSS's having identified the equipment as being specifically excluded from coverage. DeSario v. Thomas, 963 F. Supp. 120, 141 (D. Conn. 1997).
On February 13, 1997, the District Court granted the plaintiffs' Motion for Preliminary Injunction. DeSario v. Thomas, 963 F. Supp. 120, 124 (D. Conn. 1997). However, the DSS appealed to the U.S. Court of Appeals for the Second Circuit, and on February 24, 1998, the Second Circuit (Judge Guido Calabresi, Judge Dennis Jacobs, and District judge Charles Brieant, Jr.) held that DSS's definition of DME was permissible under the Medicaid program as well as DSS's use of fee schedule to determine Medicaid coverage for DME. DeSario v. Thomas, 139 F.3d 80, 98 (2nd Cir. 1998).
On January 19, 1999, the U.S. Supreme Court granted the plaintiffs' petition for writ of certiorari, vacated the judgment, and remanded the case to the Second Circuit "for further consideration in light of the interpretive guidance issued by the Health Care Financing Administration on September 4, 1998." Slekis v. Thomas, 525 U.S. 1098 (1999).
After the case was remanded, the parties reached a settlement agreement, which was approved by the District Court on June 23, 1999. Under the settlement, the state agreed to (1) have a process for annually updating its DME list, (2) allow a recipient to obtain an item not on the list if she can demonstrate that there is not a less costly Medicaid service or an item that could meet her needs as effectively, and (3) adopt regulations clarifying that a request for an item which is not on the DME list will not be denied solely because it is not on the DME list. The case is now closed.


David FORLIZZI & another 1 v. COMMONWEALTH.
Robert M. Goldstein for David Forlizzi.
David Forlizzi and Fred Battista appeal from a judgment of a single justice of this court denying their petition pursuant to G.L. c. 211, § 3. The petition sought relief from the orders of a Superior Court judge denying their motions to dismiss indictments and from the judge's decision not to conduct an evidentiary hearing on their motions. The single justice denied the petition. We affirm.
Background. Forlizzi has been indicted on charges of obstruction of justice, in violation of G.L. c. 268, § 13B; three counts of corruption of a witness, in violation of G.L. c. 268A, § 2 (c ); three counts of subornation of perjury, in violation of G.L. c. 268, § 2; and multiple counts of conspiracy to violate those same laws, G.L. c. 274, § 7. He also has been indicted as a habitual offender, in violation of G.L. c. 279, § 25. Battista faces similar charges. These indictments arise out of the petitioners' alleged misconduct in connection with a prior trial involving alleged insurance fraud.
The petitioners next filed their petition in the county court pursuant to G.L. c. 211, § 3, seeking interlocutory review of those rulings. A single justice of this court concluded that the petitioners had not shown they were entitled to extraordinary relief. She considered the Superior Court judge's decision and, “inter alia, for the reasons stated by the judge in his detailed written decision,” ordered that the petition for extraordinary relief be denied.
Discussion. We have said repeatedly that the “denial of a motion to dismiss pursuant to Mass. R.Crim. P. 13[, as appearing in 442 Mass. 1516 (2004),] is not appealable ․ until after trial,” and that G.L. c. 211, § 3, “may not be used to circumvent our rule.” Ventresco v. Commonwealth, 409 Mass. 82, 83 (1991). “[T]he rights of criminal defendants are generally fully protected through the regular appellate process.” Costarelli v. Commonwealth, 374 Mass. 677, 679 (1978). In truly extraordinary circumstances, however, where a petitioner demonstrates “both a substantial claim of violation of his substantive rights and irremediable error, such that he cannot be placed in status quo in the regular course of appeal,” Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980), a single justice may exercise the court's power under G.L. c. 211, § 3, to authorize interlocutory review. In such a case, the single justice may decide the issues presented, report the matter to the full court, Ventresco, supra, or authorize an interlocutory appeal to be taken to the Appeals Court for a decision on the merits. Commonwealth v. Jansen, 459 Mass. 21, 23 (2011); Fadden v. Commonwealth, 376 Mass. 604 (1978), cert. denied, 440 U.S. 961 (1979).
Here, we affirm the single justice's denial of the petition on the ground that the petitioners failed to demonstrate irremediable error, the second Morrissette factor, which coincides with the petitioners' obligations under rule 2:21. See Cook v. Carlson, 440 Mass. 1025, 1026 n. 2 (2003); White v. Commonwealth, 439 Mass. 1017, 1017 n. 1 (2003). The fact that the single justice considered the substantive merits of the interlocutory orders does not require that we do likewise. White, supra. We express no opinion on the substantive merits of the petition at this interlocutory stage.
The petitioners' claims generally involve due process considerations, alleged violations of the attorney-client relationship, and infringement on the right to counsel. They have not, as is their burden, demonstrated that those claims involve violation of any right that cannot be remedied in a direct appeal if and when the petitioners are convicted. See Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002) (due process claims); Doe v. Commonwealth, 435 Mass. 1001, 1001 n. 1 (2001) (violation of attorney-client relationship); Barber v. Commonwealth, 353 Mass. 236 (1967) (Sixth Amendment rights). None of the petitioners' claims implicates “a right not to be tried,” a right we have protected by according interlocutory review. See Flood v. Commonwealth, 465 Mass. 1015, 1017 (2013) (double jeopardy claims and sexually dangerous persons trials). See also Soucy v. Commonwealth, 470 Mass. 1025, 1025 (2015), and cases cited.