Federal Circuit Addresses Fee Shifting Statute–Kilopass Tech. v. Sidense Corp.
Posted on January 7, 2014 by PSMN® | Comments Off on Federal Circuit Addresses Fee Shifting Statute–Kilopass Tech. v. Sidense Corp.
While Congress continues to consider various bills that would make it easier for prevailing parties in patent cases to collect their attorneys’ fees from non-prevailing parties, the Federal Circuit is not sitting by quietly. In Kilopass Technology, Inc. v. Sidense Corp. (Case No. 2013-1193), the Court vacated and remanded a District Court’s decision not to award attorneys’ fees to a prevailing defendant. In an opinion written by Judge O’Malley, the Federal Circuit reviewed the Court’s jurisprudence on fee shifting and clarified the elements that must be met for a defendant that prevails.
This case was a more typical competitor-on-competitor patent infringement lawsuit, rather than the “troll” variety that has been in the news of late. Kilopass and Sidense are competitors in the embedded non-volatile memory market. Kilopass became concerned that Sidense may infringe some of Kilopass’s patents after reviewing a Sidense patent application, so Kilopass hired a law firm to conduct an infringement analysis. Based on an initial review, counsel believed that there was a sufficient basis to send a friendly letter to Sidense, asking if it wanted a license and for an explanation of why it did not infringe. Sidense responded by pointing out differences between its design and the claims of the patent and declined a license.
After receiving Sidense’s response, counsel noted that his infringement analysis assumed that Sidense was making a product according to the design in its patent application, which is not always the case. He noted that if Sidense was making the product in a different way, it did not infringe (at least literally). He recommended that Kilopass try to find out how Sidense’s memory cells were made in order to better assess its potential infringement.
A Kilopass employee obtained further information that showed that Sidense was not making its memory cells the same way that it described in its patent application. With this information, counsel determined that Sidense was likely not infringing and that Kilopass would have a tough case.
Kilopass hired another law firm to conduct another analysis. The second firm preliminarily determined that Kilopass appeared to have a valid claim of infringement via equivalence, but that it needed to conduct a more detailed analysis to be sure. Counsel started this analysis, but was instructed by Kilopass to stop all work.
A team of engineers from Kilopass then concluded that Sidense infringed under the doctrine of equivalence after reviewing the patent and Sidense’s products. Kilopass filed suit approximately two years later.
During the litigation, the District Court found out that Kilopass was making inconsistent arguments regarding the proper claim construction before the Court and before the USPTO BPAI during a concurrent inter partes re-examination. The Court then chastised Kilopass for its gamesmanship. The Court ultimately granted summary judgment of non-infringement to Sidense, which the Federal Circuit summarily affirmed.
Sidense sought its fees, which the District Court ultimately denied because Kilopass performed substantial pre-filing investigations and obtained opinions from two different law firms and its own engineers that it had a non-baseless claim of infringement.
The Federal Circuit ultimately vacated the District Court’s determination that an award of attorneys’ fees was not warranted and remanded for a further determination. In doing so, the Court clarified the current state of the law with respect to whether a court should award attorneys’ fees to a prevailing defendant in a patent infringement lawsuit.
The determination of whether to award fees is a two-step process, which must be shown by clear and convincing evidence. First, the prevailing defendant must show that the patentee’s claims of infringement were objectively baseless. Second, the defendant must show that the patentee brought the claims in subjective bad faith.
In assessing the subjective prong, a defendant does not have to show that the patentee knew its claims were baseless. A showing that it should have known based on the totality of the circumstances, which can include how objectively baseless the claims were, is sufficient. The Court noted that direct proof of subjective bad faith is often very difficult to come by, so indirect proof can be sufficient.
Interestingly, the Court considered whether clear and convincing evidence should be required to prove these elements. It ultimately concluded that it must, but did so based on the fact that it had to follow the precedent set by earlier panels.
Finally, the Court rejected Sidense’s proposal that fee shifting should be appropriate whether a patentee files a lawsuit having little likelihood of success. Unlike Sidense’s other arguments, the Federal Circuit did not seem inclined to expand liability in this fashion.
The Federal Circuit set forth a clearer statement of the law regarding awards of attorneys’ fees to prevailing defendants in patent infringement lawsuits. This was not a patent troll case, so the overtones and political issues associated with that topic were not present. The decision seemed to signal that the panel would have considered significant changes to the law but for the prior precedent that bound it. This may signal that this case is ripe for an en banc review. We shall have to wait and see.
The other take away is that the Federal Circuit is not going to tolerate patentees bringing weak cases, especially when counsel expresses in writing that infringement is unlikely. Patentees need to be cautious about bringing such suits, especially where it appears that literal infringement is not present.
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What to Do About Patent Trolls?
Posted on October 7, 2013 by PSMN® | Comments Off on What to Do About Patent Trolls?
The problem with patent assertion entities (PAEs), also called patent trolls, continues to be a hot-button issue among practitioners, companies, and the government. Recently, Gene Quinn from IPWatchdog wrote about one proposed solution he and others see to this problem—encouraging companies to fully litigate these lawsuits and not to settle quickly, thereby raising the costs of this kind of litigation to discourage the bringing of weak lawsuits. But, is this really a practical solution to the troll problem for everyone?
In March 2011, Lodsys approached 55 companies demanding compensation for their alleged infringement of Lodsys patents. 51 of the companies settled out of court, and 3 others settled a few weeks after Lodsys brought suit. Only Kapersky Labs decided to vigorously defend itself. After over two years of litigation and just days before trial, Lodsys unilaterally gave up and dropped its lawsuit against Kapersky Labs. Because Kapersky Labs adopted this approach, Quinn expects that it will no longer be considered an “easy target” and that it will not be sued as often as before.
My feeling is that Quinn is correct that settling weak patent infringement lawsuits only encourages and perpetuates the troll system. The problem that I have with his solution is that it is not a universal solution and is really only effective for a limited number of defendants.
While some trolls are looking for a large payday, many are willing to settle for relatively small amounts in comparison to the litigation costs—in the thousands or tens of thousands range (see, e.g., here and here). Patent litigation is expensive, with pre-trial costs ranging from $350,000 to $1,000,000 for modest size cases and total costs ranging from $700,000 to $2,000,000. Thus, a company is faced with a decision of whether to pay a few thousand dollars now to end the litigation and receive a fully-paid up license or spends hundreds of thousands or millions to hopefully defeat the troll in the courts (which is no guarantee, as any litigator will tell you).
The law potentially allows a prevailing defendant to collect its fees and expenses, but there is no certainty that a defendant can meet the high standard required to get such an award or that it will be able to collect such an award from the troll. Many of these trolls are shell companies with little to no real assets. Even if the company is able to get and collect its fees and expenses, that still would not make it whole. The company will likely have wasted 2+ years in the litigation process, with all the distractions and stresses that it creates.
In addition, for many companies the litigation costs represent a significant portion of its annual profits. It may have to lay off workers, forgo development, or otherwise restrict its operations during the litigation simply to pay its legal bills. That is a lot to ask of a company in order to fulfill some greater societal goal of discouraging patent trolls, especially if it is not a frequent target of patent trolls itself.
Trolls are obviously counting on companies to engage in exactly this type of analysis, which is why they offer certainty at a relative low cost. It encourages companies to pay quickly and avoid both the long-term legal costs and the potential of a large judgment against them. As a purely business decision, it is hard to ignore, even if it is extortionate.
So, what is the solution? Larger companies that are frequent troll targets should seriously consider the approach that Kapersky Labs used (and Quinn encourages) of aggressively litigating these kinds of cases. (Of course, these companies always need to evaluate the merits of the case before deciding whether to litigate.) By raising the costs of doing business and denying the trolls an easy score, trolls will likely begin to avoid suing that company, which is a win for both the company and the legal system.
It is more difficult for smaller companies to adopt this approach, however. These companies likely will need help from the Courts, Congress, and the President to create disincentives to discourage trolls from bringing frivolous lawsuits in the first place. In the end, as long as there is money to be made, the trolls will exist and will find ways around whatever rules are in place.
Some of the approaches being discussed in Congress (see here, here, and here) are a step towards solving this problem, but they are likely not the final answer. Given that the large patent litigation costs are the primary driver that forces companies to settle, mechanisms that reduce these costs or delay them until a patent holder can establish that it has brought a legitimate lawsuit may be part of the answer.
In addition, in the rush to rid the world of trolls, Congress needs to be careful that they don’t tip the balances in traditional, “legitimate” patent infringement lawsuits so as to make it unreasonably difficult for patent owners to enforce their patents against actual infringers. The bottom line is that there do not appear to be any easy answers to this problem.
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The Federal Circuit issued an interesting decision this week in Network Signatures, Inc. v. State Farm Mut. Ins. Co., No. 2012-1492, that reversed a District Court’s finding of inequitable conduct based on a patentee’s late payment of a maintenance fee. The Court found that even though the patentee intentionally did not pay the maintenance fee, such a failure could be excused when the reason for not paying was based on an erroneous assumption that no one wanted to license the patent. Judge Newman wrote the opinion for the Court, joined by Judge Wallach. Judge Clevenger dissented.
A scientist at the Naval Research Labs (NRL) obtained a patent relating to internet security. There did not appear to be any commercial interest in the patent, so NRL permitted the patent to lapse by not paying the 7.5-year maintenance fee. Unbeknownst to NRL, a company (Network Signatures) was interested in licensing the patent. The company attempted to contact NRL via phone and e-mail before the maintenance fee was due, but was unable to do so because NRL’s systems were not functioning properly. Network Signatures was finally able to reach NRL two weeks after the maintenance fee was due. At this point, NRL’s lawyer filed a petition with the PTO for delayed payment, asserting that the failure to pay was unintentional. The PTO granted the request, and NRL ultimately licensed the patent to Network Signatures.
Network Signatures sued State Farm for patent infringement. After discovery, State Farm moved for summary judgment on inequitable conduct, arguing that the failure to pay the maintenance fee was not unintentional. The District Court granted summary judgment, and Network Signatures appealed.
The Federal Circuit reversed. In doing so, it looked at the nature of the proceedings before the PTO. NRL’s lawyer submitted a standard form relating to late payments and checked a box indicating that the failure to pay was unintentional. The Court stated that “[w]e do not agree that this action constituted material misrepresentation with an intent to deceive.” The Court found no irregularities with NRL’s conduct after learning of Network Signatures’ desire to license the patent and that it was not improper to use the PTO’s forms (which did not require an explanation).
The dissent disagreed, and found that NRL intentionally allowed the patent to lapse. This was not the kind of unintentional delay that should be excused. While the dissent agreed with the District Court that State Farm had proven the first element of an inequitable conduct defense (material misrepresentation), the dissent found that the second element (specific intent to deceive) was a factual question that precluded summary judgment.
This is a rather odd decision. NRL clearly intended to allow its patent to lapse, but would not have done so but for a problem in communication. But, is this a “mistake of fact” that would excuse its abandonment? The majority failed to address the boundaries of the “mistake of fact” defense proffered by the patentee, and, instead, seems to have relied on the bare-bones nature of the PTO form used. This decision does not seem to provide much clarity as to what constitutes an “unintentional” abandonment of a patent.
Posted by Henry M. Sneath, Esq., Chair of the Intellectual Property group at Pittsburgh law firm Picadio Sneath Miller & Norton, P.C.
Following a December 2012 Patent verdict in favor of CMU against Marvell in the amount of just over $1 Billion, the trial Judge Nora Barry Fischer of the USDC for the Western District of Pa. has denied the post trial motions filed by Marvell. Carnegie Mellon University v. Marvell Technology Group, Ltd., Case No. 09-290 (W.D. Penn. Feb 28, 2013). She has also found that the infringement was willful, but has not determined yet whether to multiply the verdict as an enhanced award. The lengthy opinion is attached for review. More analysis to come and we will follow what is surely to be an appeal to the CAFC by Marvell. Opinion available only on PACER at the moment but we will search for an independent copy to post.
UPDATE: The full decision of the Court is available here.
Last Thursday, the U.S. Government Accountability Office (GAO) issued a report on patent infringement litigation and recommended steps that may be taken to improve both litigation and the patents themselves. The 61-page report, entitled “INTELLECTUAL PROPERTY: Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality,” makes a number of recommendations, as well as providing a background in this area, including statistics summarizing recent trends in patent litigation.
We’ll be taking a look at this report in more detail and providing some commentary on it in the near future as a part of our ongoing analysis of the issues presented by NPE/PAE/patent troll litigation.
The Federal Circuit issued an opinion in Taurus IP, LLC v. DaimlerChrysler Corp. (No. 2008-1462), upholding a verdict in favor of a technology user in the continuing patent wars between non-practicing entities (NPEs) and companies. Judge Schall delivered the opinion of the Court, joined by Judges Prost and Reyna.
The case involved two separate actions—one for patent infringement and one for a breach of warranty involving a prior settlement agreement between the parties. In the patent action, the Federal Circuit affirmed the district court’s determination that Taurus’s patent was invalid, that defendants did not infringe, and that the case was exceptional because plaintiff failed to conduct proper due diligence and filed a frivolous lawsuit. In the breach of warranty action, the Court affirmed the finding that the court had jurisdiction over the parties, that plaintiff and related third parties (Orion IP, LLC and Erich Spangenberg) breached the warranty provisions, and that two of the third parties engaged in witness tampering. The Court affirmed-in-part and reversed-in-part the damage awards relating to defendants’ attorneys’ fees.
The case has a rather long and convoluted history, starting with a different lawsuit back in 2004.
Orion (an NPE owned by Spangenberg) sued DaimlerChrysler and Mercedes in 2004. Prior to filing suit, it acquired the rights to a patent (the ‘658 Patent) that would be at issue in the later lawsuit. To resolve the 2004 case (which involved different patents), the parties entered into a settlement agreement in 2006. Under that agreement, Orion warranted that had not assigned any patent rights relating to the 2004 litigation. However, five days after filing the 2004 lawsuit, Orion assigned the ‘658 Patent to another of Spangenberg’s companies and did not disclose that fact.
In 2007, Taurus (another NPE) acquired the rights to the ‘658 Patent from one of the many Spangenberg companies. Taurus then filed suit against DaimlerChrysler and Mercedes 10 days later. This is the case that was on appeal before the Federal Circuit.
The ‘658 Patent involved a “a computer system for managing product knowledge related to products offered for sale by a selling entity.” Taurus alleged that defendants infringed the patent through their internal and external web sites that allowed customers to select various options on different car models and then see if any dealers had that configuration available for sale in the area.
The district court issued a claim construction that was unfavorable to Taurus. The court then granted summary judgment in favor of defendants, finding that defendants did not infringe and that the asserted claims of the patent were invalid in light of prior art that pre-dated the earliest conception date that Taurus could prove. In addition, the court found that the case was an exceptional case that warranted an award of defendants’ attorneys’ fees.
The court found that Taurus failed to conduct a proper due diligence before filing suit, that there was no reasonable basis to believe that defendants infringed, and that Taurus needless prolonged the litigation in bad faith. The court then awarded over $1,600,000 in attorneys’ fees.
With respect to the breach of warranty claims, the court found that it had jurisdiction over all of the parties and denied Taurus and the third-party defendants’ attempts to dismiss the claims. A jury then found for DaimlerChrysler and Mercedes. On post-trial motions, the court found damages caused by the breach in the amount of almost $2,500,000 for the costs incurred to defend the patent infringement lawsuit and $ 1,300,000 in attorneys’ fees relating to the breach of warranty claims.
In addition, the court found that Erich Spangenberg and an attorney working with him attempted to tamper with a witness. The attorney used to represent DaimlerChrysler in prosecuting its patents, but left to work for one of Spangenberg’s companies during the course of the litigation. Spangenberg contacted the attorney and told him that he believed that one of DaimlerChrysler’s witnesses was going to commit perjury and that the attorney should take steps to deal with it. The attorney then called and sent the witness a letter “reminding” the witness of certain “facts.” The attorney never indicated that he worked for Spangenberg.
When this contact came to light, the court conducted a closed hearing to address what happened and what should be done. The court ultimately concluded that (1) the communications were designed to intimidate the witness and influence his testimony, (2) that the attorney should have been screened from the case due to his prior employment with DaimlerChrysler, (3) that the “facts” were not supported by the record. As a sanction, the court prevented Spangenberg and his companies from evoking testimony refuting one of the elements to the breach of warranty claim.
On appeal, the Federal Circuit affirmed all of the patent infringement-related issues in full. It upheld the claim construction, the non-infringement ruling, the invalidity ruling, and the award of attorneys’ fees.
With respect to the breach of warranty issues, the Federal Circuit largely affirmed, including the witness tampering sanctions, but did reverse on the issue of the damages for a lack of evidence presented at trial.
This was a fairly convoluted case before the Federal Circuit. While the lengthy opinion makes for an interesting read, there are some high-level take aways. First, Chief Judge Rader has repeatedly indicated that district courts should exercise their inherent and statutory powers to sanction NPEs and other litigants that bring frivolous patent infringement lawsuits. The district court apparently took that to heart and the Federal Circuit backed her up. Second, the failure to conduct appropriate pre-filing due diligence proved very costly to plaintiff. Finally, parties need to be very careful before communicating (or inducing another to communicate) with an opposing witness prior to testifying, as the sanctions can be devastating to a case.
The Federal Circuit issued an interesting decision today in Hamilton Beach Brands, Inc. v. Sunbeam Products, Inc. (No. 2012-1581). The opinion, written by Judge O’Malley and joined by Judge Bryson, invalidated a patent based on the patentee’s contractual agreement with its own supplier to purchase a product that utilized the patented invention more than one year before the date of the patent application. The dissent, written by Judge Reyna, argued that this decision is inconsistent with the requirement that an offer for sale must by a commercial offer and that it will eviscerate the experimental-use exception.
The patentee, Hamilton Beach, developed an improved slow cooker with clips to hold the lid of the cooker to the body of the cooker. Hamilton Beach’s original design had the clips mounted to the body. Sunbeam designed a competing version of the product with clips mounted to the lid. In response, Hamilton Beach filed a continuation patent application that specifically incorporated Sunbeam’s new design. This application eventually matured into the patent involved in the lawsuit.
In defense, Sunbeam argued that it did not infringe and that the patent was invalid as anticipated because Hamilton Beach introduced new matter into its continuation application and therefore could not take advantage of the earlier filing date. Sunbeam also argued that the patent was invalid due to an offer for sale more than one year before the earliest priority date.
More than one year before the original patent application was filed, Hamilton Beach issued a purchase order to one of its foreign suppliers, asking it to manufacture nearly 2,000 slow cookers based on Hamilton Beach’s specifications and designs. The supplier agreed to fulfill the order once it obtained a release from Hamilton Beach. The supplier’s confirmation occurred more than one year before Hamilton Beach filed its patent application. Hamilton Beach issued the release to its supplier within the one-year period before it filed its application, though.
The District Court ultimately agreed with Sunbeam on all three grounds, finding that Sunbeam did not infringe and that the patent was invalid.
A patent can be invalidated under 35 U.S.C. § 102(b)’s on sale bar provision “when two conditions are satisfied before the critical date: (1) the claimed invention must be the subject of a commercial offer for sale; and (2) the invention must be ready for patenting.” There is an exception to the on sale bar where the use is experimental in nature, which negates the commercial requirement of § 102(b).
The Federal Circuit only addressed Sunbeam’s on-sale bar argument, finding that the offer from Hamilton Beach’s supplier to manufacturer the slow cooker once it received the release was an offer for sale under § 102(b). Because this offer occurred more than one year before Hamilton Beach filed its patent application and Hamilton Beach clearly had specifications and drawings of its invention, the patent was invalid as anticipated.
It reaching its decision, the Court noted that there need not be a binding contract for purposes of § 102(b)—only an offer is required. Moreover, the Court found that there is no “supplier exception” to the on-sale bar.
The key dispute between the majority and dissent was whether Hamilton Beach’s purchase order should have been analyzed under the experimental use exception.
“Experimental use” is simply not at issue. There is, thus, no threat that this decision will have any impact on that defense; it certainly will not “eviscerate” that defense as the dissent fears.
The dissent disagreed, finding that Hamilton Beach had raised this issue and that there was sufficient evidence to suggest that the 2,000 units were being ordered in order to work out a defect in the design. The dissent further expressed concern that this ruling would “eviscerate” the experimental use exception and create havoc for companies that have third parties manufacture their goods.
It is somewhat difficult to predict how this case will be used in the future, but there are certainly some points to take away from it. First, companies need to be aware that contractual negotiations and offers with their own suppliers potentially can be used against them to invalidate their patents. This highlights the need to file provisional applications and keep track of the relevant dates so as not run into this issue. Second, where a use is experimental in nature, it is helpful to document its experimental nature for use later in litigation. Third, the majority fairly clearly states that this decision does not destroy or even implicate the experimental use exception, so that exception should still be available if properly raised at the trial court. Finally, this case highlights the importance of preserving this argument explicitly and clearly.
The SHIELD Act is designed to shift the costs of litigation to certain kinds of patentees that lose patent infringement lawsuits. Specifically, patentees that (1) are not the original inventor or assignee of the patent, (2) have not made a “substantial investment” to exploit the patent through production or sale of item covered by the patent, or (3) are not a university or a university’s technology transfer organization will be required to pay the full costs and attorneys’ fees of the prevailing party that asserted invalidity or non-infringement, unless the court finds that exceptional circumstances exist.
A party asserting invalidity or non-infringement may move the court for a judgment that the patentee does not fall within one of these three classifications. If the motion is made before initial disclosures are due, the court must stay discovery, except for that necessary to resolve this motion. If the motion is made after the initial disclosures, the court may wait until after entry of final judgment to decide the motion.
There are a couple of interesting points about this proposed litigation. First, there is no good faith or reasonable basis exception explicitly contained in the determination of whether to award fees. Thus, unless courts consider a good-faith basis for filing the suit to be an “exceptional circumstance,” entities that do not fall within one of the three categories must pay a defendant’s costs and fees regardless of the reasonableness of the lawsuit.
Second, the bill does not indicate what happens with mixed verdicts. If a patentee prevails on all but one claim, is a defendant entitled to collect all of its costs and fees, or only some pro-rated amount?
Third, how would this bill affect declaratory judgment actions? The language is not written in terms of plaintiff or defendant, but in terms of the “party asserting invalidity or noninfringement.” If a company receives a cease-and-desist letter from an entity that does not fall within one of the three categories and files a declaratory judgment action, is the patentee subject to this rule? Presumably, it would be, which means that these kinds of patentees would have to be extremely careful when sending licensing or cease-and-desist letters.
This act is fairly straightforward. It simply requires that a patent owner file a disclosure with the USPTO of the real party in interest of any patent when (1) the patent issues, (2) a maintenance fee is paid, and (3) within 90 days of any transfer of ownership. If a patent owner does not, it cannot collect any damages in a patent infringement lawsuit until it cures its failure to do so.
These two acts are basically mirror images of one another, except one was introduced in the Senate and one in the House. Both remove the sunset provision in 35 U.S.C. § 321 note, subsection (a)(3), which provides for a streamlined post-grant review of financial business method patents, and makes the program permanent. The acts would also expand the scope of review from financial business method patents to all types of business method patents.
All six pieces of legislation target the patent “troll” problem, but do so in different ways. None of these approaches seem to be the silver bullet to solve this problem, however. In fact, some of them are likely to cause significant issues in the traditional patent litigation context. Also, there are many questions and ambiguities about how these laws would be applied. It will be interesting to see if any of these proposal garner enough support to become law (and whether any changes are made to do so).
The Patent Litigation and Innovation Act of 2013 (“PLIA”) is in many ways very similar to the Patent Abuse Reduction Act of 2013 (“PARA”) we discussed in the first part of this series, although there are some notable differences. These two bills are the most comprehensive and far-reaching of the currently proposed legislation. The bill would make five major changes to the patent laws that will affect all patent lawsuits, not just the “troll” variety.
First, like the PARA, the PLIA would require a patentee to plead substantially more information than is currently required in a complaint, including (1) identifying the patents that are allegedly infringed; (2) identifying the claims that are allegedly infringed; (3) identifying each allegedly infringing product, method, process, etc., including the specific name and model numbers; (4) identifying how each element of each claim is infringed; (5) identifying whether the infringement is literal or under the doctrine of equivalents; (6) for indirect infringement, identifying the acts and parties who directly infringed and the indirect infringer’s acts that give rise to liability; (7) identifying the basis of the patentee’s right to sue; (8) describing the principal business of the patentee; (9) identifying the owners, assignees, and exclusive licensees of the patents; and (10) identifying anyone who has a legal right to enforce the patents.
Unlike the PARA, the PLIA does not require that the patentee identify any previously-filed complaints involving the patents, whether the patent is subject to any licensing or pricing commitments, or the identity of anyone who has a financial interest in the patent (and the basis for that interest).
Given that the bare-bones nature of the current model Form 18 for patent lawsuits, the bill would also require that Form 18 be updated to include this information.
Second, like the PARA, the PLIA would require courts to join any interested parties on a defendant’s motion if the defendant shows that the plaintiff’s interest in the patent is limited “primarily to asserting any such patent claim in litigation.” The court may deny the motion if the interested party is not subject to service or would deprive the court of subject matter jurisdiction.
Third, the PLIA provides a mechanism for staying any actions against “secondary parties,” who are defined to be those whose alleged infringement is based on the use, distribution, resale, or consumption of a product or process by a primary party. Primary parties are those who manufacture or supply the product or process that allegedly infringes. If the primary and secondary parties agree, they can move the court, which then must stay the action against the secondary parties. The secondary party will then be treated as a non-party for purposes of discovery, hearings, and trials. However, the secondary party will be bound by any judgment against the primary party relating to common issues between the two.
Fourth, the PLIA creates a number of automatic stays of discovery. The court must stay discovery while ruling on any motion to dismiss, motion to transfer, or claim construction, although there are provisions for lifting the stay in extraordinary circumstances. The court can also allow whatever discovery is necessary to decide these issues.
Finally, the PLIA provides that the court must include specific findings in its final adjudication regarding the parties’ and attorneys’ compliance with Rule 11(b) and may impose sanctions for any violations.
While this bill is clearly directed at curbing abusive patent litigation, its effects will be felt in all patent lawsuits. Given that, all patent litigators should be aware of how patent litigation may change. In particular, there are many unanswered questions about this bill that could have some interesting consequences.
First, as with the PARA, the amount of information required in a complaint is extraordinary, especially in comparison to what is required now under the notice pleading standard of the federal rules. The same concerns discussed in the article on the PARA apply equally to the PLIA. As a practical matter, it is difficult to see what the purpose behind these changes is, especially in jurisdictions that have local patent rules that require this type of disclosure early in the process. Most plaintiffs, whether of the “troll” variety or not, have put together detailed infringement charts as part of their due diligence. While pleading this information will be time consuming, it should not be particularly difficult. In addition, what is the recourse if a plaintiff is “wrong”? A court should not be resolving questions of fact on a motion to dismiss. On the other hand, requiring this kind of information, whether in the pleadings or early in the litigation, is extremely helpful for defendants to understand the scope of the lawsuit and what products and claims are actually at issue and should help streamline the litigation. Whether it should be required in the complaint or as part of early disclosures is another matter.
Second, the provisions regarding staying the action against secondary parties are potentially very helpful in reducing the distractions caused by this kind of litigation tactic. It will be interesting to see how secondary parties react and whether they are willing to be bound to whatever judgments are entered against the primary party. In theory, a primary party should have a far greater interest in defending the lawsuit and the greater knowledge to do so.
Third, the stay of discovery while the court is construing claims could be helpful, but it also could prove problematic. For instance, sometimes it is difficult to know exactly what claims could be at issue until a defendant provides the details of how its product works or what the steps in its process are. Certain elements or steps may be unknowable without access to source code or knowledge of the precise process used. And, this cuts both ways. Sometimes, a patentee may believe that additional claims are infringed after learning more about the defendant’s products, but it could also be the reverse, where discovery reveals that certain claims that it believed were infringed are not infringed. In addition, a patentee may not appreciate that a particular claim term needs to be construed until it sees how the accused products work and the positions that the defendant is taking. Courts are unlikely to be thrilled at the prospect of having to engage in the claim construction process multiple times or having to construe claim terms that later turn out to be irrelevant once additional discovery is done.
Finally, it is unclear how useful the requirement that courts make specific findings regarding Rule 11(b) compliance will actually be. Presumably, if one of the parties or the court felt that another party’s behavior was inappropriate, they would have raised that issue anyway. Further, it is unlikely that a court will have sufficient evidence to make any findings of inappropriate behavior in those cases that settle early, even if the case actually had little merit.
There are clearly issues with patent litigation now, especially with respect to suits brought by “trolls.” While not as drastic as the PARA, it is not clear how helpful the PLIA will actually be in addressing some of the abuses that currently exist. It will also be interesting to see the discussions surrounding this piece of legislation and whether it ever becomes law.
Along with the Patent Litigation and Innovation Act of 2013 that will be discussed in the next installment, the Patent Abuse Reduction Act of 2013 is the most comprehensive and far-reaching of the currently proposed legislation. The bill would make four major changes to the patent laws that will affect all patent lawsuits, not just the “troll” variety.
First, the bill would require a patentee to plead substantially more information than is currently required in a complaint, including (1) identifying the patents that are allegedly infringed; (2) identifying the claims that are allegedly infringed; (3) identifying each allegedly infringing product, method, process, etc., including the specific name and model numbers; (4) identifying how each element of each claim is infringed; (5) identifying whether the infringement is literal or under the doctrine of equivalents; (6) for indirect infringement, identifying the acts and parties who directly infringed and the indirect infringer’s acts that give rise to liability; (7) identifying the basis of the patentee’s right to sue; (8) describing the principal business of the patentee; (9) listing each previously filed complaint relating to the asserted patents; (10) identifying whether the patent is subject to any licensing terms or pricing commitments; (11) identifying the owners, assignees, and exclusive licensees of the patents; (12) identifying anyone who has a legal right to enforce the patents; (13) identifying anyone with a direct financial interest in the lawsuit or its proceeds; and (14) describing the basis for that direct financial interest.
Second, the bill would require courts to join any interested parties on a defendant’s motion if the defendant shows that the plaintiff’s interest in the patent is limited “primarily to asserting any such patent claim in litigation.” The court may deny the motion if the interested party is not subject to service or would deprive the court of subject matter jurisdiction.
Third, the bill would substantially change the timing and scope of discovery, including shifting the costs for non-core discovery materials. If a court determines that claim construction is required, discovery is limited to only that necessary for construction until after the court issues its ruling. After that ruling, discovery is divided into two groups—core documentary evidence and additional discovery. Core documentary evidence is limited to documents that (1) relate to conception, reduction to practice, and application for the patent; (2) are sufficient to show the technical operation of the accused products or services; (3) relate to invalidating prior art; (4) relate to prior licensing of the patent; (5) are sufficient to show the revenues attributed to the invention; (6) are sufficient to show the organizational structure of each party; (7) relate to the defendant’s awareness of the patent or infringement before the lawsuit was filed; and (8) are sufficient to show any marking, lack of marking, or notice of infringement.
Notably, computer code and electronic communications (e-mail, text messages, etc.) are not core discovery, unless the court finds good cause to classify them as such. Additional discovery is the discovery of every other kind of evidence. Each party bears the burden of producing its own core discovery, as is currently the case. However, the burdens shift with respect to additional discovery. There, a requesting party is not entitled to the additional discovery unless it pays for it (including both actual costs and reasonable attorneys’ fees) or posts a bond in that amount.
Finally, the court is to award costs, expenses, and attorneys’ fees to the prevailing party, unless the non-prevailing party’s positions and conduct were objectively reasonable and substantially justified or exceptional circumstances make such an award unjust. If the non-prevailing party cannot pay these costs, the court can make them recoverable against any interested party.
While this bill is clearly directed at curbing abusive patent litigation, its effects will be felt in all patent lawsuits. Given the far-reaching impact of these proposed changes, all patent litigators should be aware of how patent litigation may change. In particular, there are many unanswered questions about this bill that could have significant consequences.
First, the amount of information required in a complaint is extraordinary, especially in comparison to what is required now. Some of this information may be very difficult for a plaintiff to know at the filing stage, even with substantial pre-filing due diligence. For instance, it may be difficult to determine all of defendant’s allegedly infringing products beforehand. Indeed, discovery often reveals additional products that infringe. What are the consequences if a plaintiff later discovers infringing products? How can they be added to the lawsuit? Interestingly, there is no equivalent requirement for defendants to plead this level of detail with respect to their non-infringement or invalidity positions.
Second, how will these pleading changes affect declaratory judgment lawsuits? Normally, an infringement counterclaim must be raised in an answer as a mandatory counterclaim. These pleading requirements apply for counterclaims, as well as the initial complaint. What happens if a patentee is sued based on a licensing demand and does not have this information? Or does not have this information for all of the accused infringer’s products? Patentees would have to be extremely careful before sending out cease-and-desist or licensing letters.
Third, given that core discovery specifically excludes e-mails, how will the parties obtain some of the core discovery that may only be in e-mail format? For instance, a defendant’s awareness of the patent or infringement may only be found internal e-mail communications. Core discovery also excludes computer code. Presumably, a court will find this code to be core discovery for computer software patents or inventions that use a computer, but that is not clear.
Fourth, the bill states that a party is not entitled to additional discovery until it first pays for it. How will those issues be addressed? What happens if there is a dispute over the reasonableness of the costs? Will courts have to micromanage litigation budgets and fees? What happens if a party cannot afford the discovery? Is it completely barred from obtaining it? Is this a due process concern?
Fifth, core discovery is defined as “core documentary evidence” and only includes documents relating to the topics described above. How are depositions and expert discovery treated? What about interrogatories? Are they “additional discovery” that must be paid for by the requesting party? If so, this is especially problematic with experts. Unlike document requests and interrogatories, a party has no control over what experts (or how many) the other side hires. The bill is silent on how to address these issues.
Sixth, this bill turns patent litigation into a loser pays proposition. In other words, it is the equivalent of a default finding of exceptional circumstances in our current system. The bill is silent as to what happens if a position that was reasonable becomes unreasonable in the middle of the litigation. For instance, an infringement or non-infringement position may become unreasonable after the court issues its claim construction. What happens then? If a plaintiff does not withdraw its suit or a defendant does not immediately settle, are they liable for all of the fees? Only those fees after the ruling? A defendant may not be able to extricate itself on reasonable terms at that point, especially if the plaintiff now knows it will be able to collect its attorneys’ fees.
Finally, while this payment requirement can be challenged, this change will create even more pressure on a defendant to settle a case, especially if it is likely to be costly. Plaintiffs can presumably take more precautions to make sure that their positions are reasonable and substantially justified before they choose to file suit. A defendant may not have that luxury.
There are clearly issues with patent litigation now, especially with respect to suits brought by “trolls.” It is not clear whether the Patent Abuse Reduction Act of 2013 will help or hurt more, however. It will be interesting to see the discussions surrounding this piece of legislation and whether it ever becomes law.


§ 178-1 Drug-Free School, Public Parks and Public Buildings Zone Map adopted.
§ 178-2 Location and boundaries of school property, public parks and public buildings.
§ 178-3 Changes in location and boundaries.
§ 178-4 Map on file; availability of copies.
In accordance with and pursuant to the authority of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-7.1 and the authority set forth by the Legislature, the Drug-Free School and the Drug-Free Park and Public Building Map attached hereto and made a part hereof produced by T&M Engineers is hereby approved and adopted as an official finding and record of the location within the Borough, which is used for school, park and public building purposes, and that the additional areas are within 1,000 feet of the designated property used for school purposes and 500 feet of property used for park and public building purposes.
The Drug-Free School, Park and Public Building Map approved and adopted pursuant to § 178-1 of this chapter shall continue to constitute an official finding and record as to the location and boundaries of areas on or within 1,000 feet of property owned by or leased to any elementary or secondary school or school board which is used for school purposes and shall further constitute an official finding and record as to the location and boundaries of property used as parks and boundaries of parks and as to property used for public buildings until such time, if any, that this chapter shall be amended to reflect any additions or deletions with respect to the location and boundaries of school property and drug-free school zones and parks and drug-free park zones.
The Clerk of the municipality is hereby directed to receive and to keep on file the original of the map approved and adopted pursuant to § 178-1 of this chapter and to provide, at a reasonable cost, a true copy thereof to any person, agency or court which may from time to time request such a copy, along with a certification that such copy is a true copy of the map approved and adopted herein and kept on file. It is hereby further directed that a true copy of such map and of this chapter shall be provided without cost to the County Clerk and to the Office of the Monmouth County Prosecutor.
The location and boundaries of areas which are on or within 1,000 feet of such school property; the location and boundaries of areas which are on or within 500 feet of a park; and the location and boundaries of areas which are on or within 500 feet of a public building.
Except as is otherwise expressly noted on the face of the approved and adopted map, all of the property depicted on the map approved and adopted herein as school property was owned by or leased to a school or School Board and was being used for school purposes as of July 9, 1987; all of the property located on the map as depicting parks were being used for park purposes as of January 9, 1998; and all of the property located on the map as depicting public buildings were being used as public buildings as of January 9, 1998.
Pursuant to the provisions of P.L. 1988, c. 44, and P.L. 1997, c. 327, a prosecutor is not precluded from introducing or relying upon any other evidence or testimony to establish a violation of the offense defined in that statute, including the use of a map or diagram other than the one approved and adopted pursuant to § 178-1 of this chapter. The failure of the map approved herein to depict the location and boundaries of any property which is, in fact, used for school purposes and/or parks and/or public buildings and which is owned by or leased to any elementary or secondary school or School Board, whether the absence of such depiction is the result of inadvertent omission or the result of any changes in the location and boundaries of such property which have not yet been incorporated into a revised approved map, shall not be deemed to be an official finding and record that such property is not owned by or leased to a school or school board, or that such property is not used for school, park or public building purposes.
Editor's Note: See N.J.S.A. 2C:35-7 and 2C:35-7.1, respectively.
All of the requirements set forth in P.L. 1997, c. 327, concerning the park and preparation, approval and adoption of a drug-free public building map have been complied with.


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Protection of your personal data in the collection, processing and use on the occasion of your visit to our homepage is an important matter for us.
Below, we would like to inform you about the fact that and how personal data from you are inquired, electronically stored and processed by us.
To ensure professional data protection, we have outsourced the protection of our operational data. We are supported by Mauß Datenschutz GmbH.
Personal data is information that is specific to your person. This includes your name, address, telephone number and email address, but also other data such as your location, your IP address, or bank details. To use our internet site, it is not necessary for you to disclose your personal details. However, in certain cases, we need your name and your address as well as further information, so that we can provide the requested information.
All the data you enter on our sites is transmitted to us in encrypted form. The same applies for the delivery of our web pages. It applies even when you access the site without specifying encryption (using http protocol instead of https); the site’s response to such unencrypted access is automatically encrypted.
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For details, please refer to the following remarks.
When you access our website, the company we have commissioned to operate the website processes and stores technical information about the device you are using (operating system, screen resolution and other non-personal characteristics) and the browser (version, language settings), in particular the public IP address of the computer you are using to visit our website, and the date and time of access. The IP address is a unique numerical address under which your device sends or retrieves data on the Internet. As a rule, we/our service provider do not know who is behind an IP address unless, while using our website, you provide us with information that enables us to identify you.
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For recording and evaluating your user path through our website, we use piwik, a software application that has been configured according to the recommendations of the Independent State Centre For Data Protection In Schleswig-Holstein (Uld).
We operate Piwik on the same server on which our homepage is operated, so no data about your user behaviour is transferred to third parties.
If you do not wish to be recognised, you can delete the cookies we have set at any time. You can object to the collection and evaluation of your user behaviour and the setting of cookies at any time by removing the check icon by the corresponding declaration of consent at the top of this page. Alternatively, you can activate "Do Not Track" in your browser. Please note that any objection to the evaluation of your surfing behaviour is also stored in a cookie. If you delete the cookies we have set, you will have to object again.
Piwik allows us to compile usage statistics for our website and demographic data on visitors and their user behaviour in a non-personally identifiable way. Statistics are also compiled to help us better understand how our site is found, so that we can improve our search engine optimisation and advertising efforts. With this processing, we pursue our legitimate interest to be able to improve our website as well as our advertising measures. The legal basis for this processing is Article 6(1)(f) GDPR.
The pseudonymous data is deleted after 24 months.
A cookie is a small text file that is stored on your device by your browser when you access our website. If you access our website again at a later time, we can read these cookies again. Cookies are stored for differing periods of time. In your browser settings you have the option of specifying, at any time, which cookies it should accept, but this can result in our website no longer functioning properly. You can also delete cookies yourself at any time. If you do not do this, we can specify how long a cookie is to be stored on your computer once it is saved. A distinction is made here between ‘session cookies’ and ‘persistent cookies’. Session cookies are deleted from your browser as soon as you leave our website or close the browser. Persistent cookies are stored for the duration that we specify when we store them.
Technically necessary cookies that are absolutely necessary for using our website’s functions and features (e.g. detecting whether you have logged in). Without these cookies, certain functions could not be provided.
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Analysis cookies that are used to analyse your user behaviour. For details, please read the information about Piwik.
With the exception of the above-mentioned transmissions to Google in connection with the use of Google Maps and Google Analytics, we do not transmit any kind of personal data to countries outside the EU. The servers we use are located in the EU.
We do not use plugins or widgets from social media on our website. Accordingly, we do not transmit any personal data to the relevant providers.
If you wish to exercise any of the rights to which you are entitled, please contact us – the responsible party – using the above contact details or any of the other methods we provide for sending us this message.
In accordance with Art. 15 GDPR, you have the right to request confirmation from us as to whether we are processing any personal data relating to you. If this is the case, you have a right of access to this personal data and to further information mentioned in Art. 15 GDPR.
In accordance with Art. 16 GDPR, you have the right to request us to promptly correct any incorrect personal data relating to you. Taking into account the purposes of the processing, you also have the right to request the completion of incomplete personal data, including by means of a supplementary declaration.
You have the right to demand that we promptly delete any personal data relating to you. We are obliged to delete personal data immediately if the corresponding requirements of Art. 17 GDPR are met. For details, please refer to Art. 17 GDPR.
In accordance with Art. 18 GDPR, you have the right, under certain conditions, to request us to restrict the processing of your personal data.
In accordance with Art. 20 GDPR, you have the right to receive the personal data relating to you that you have provided to us, in a structured, current, and machine-readable format, and you have the right to transmit this data to another responsible party without our interference, provided that the processing is based on a consent pursuant to Article 6 para. 1 a) GDPR or Article 9 para. 2 a) GDPR or which is based on a contract pursuant to Article 6 para. 1 b) GDPR, and that the processing is carried out using automated procedures.
In accordance with Art. 21 GDPR, you have the right to object to the processing of personal data relating to you that is based on Article 6 para 1 e) or f) GDPR; this also applies to profiling based on these provisions.
If we process your personal data for purposes of direct marketing, you have the right to object at any time to the processing of personal data relating to you for the purpose of such advertising; this also applies to profiling to the extent that it is associated with such direct marketing.
In accordance with Art. 77 GDPR, and without prejudice to any other administrative or judicial remedy, you have the right to lodge a complaint with the supervisory authority. This right exists in particular in the Member State of your place of residence, of work, or of the place of suspected infringement, if you are of the opinion that the processing of personal data relating to you is contrary to the GDPR.

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Art. 6
Art. 6
Art. 6
Art. 15
Art. 15
Art. 16
Art. 17
Art. 17
Art. 18
Art. 20
Art. 21
Art. 77


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Tsai P., 1929: Description ofthree new species of Acridiids from China, with a list of the species hitherto recorded. 11 pp.
Tsankov G., Douma-Petridou E., Mirchev P., Georgiev G., Koutsaftikis A., 1999: Spectrum of egg parasitoids and rate of parasitism of egg batches of the pine processionary moth Thaumetopoea pityocampa (Den. Schiff.) in the Northern Peloponnes/Greece. 8 pp.
Tschek C., 1868: Beitraege zur Kenntniss der oesterreichischen Pimplarien. 12 pp.
Tschek C., 1868: Beitraege zur Kenntniss der oesterreichischen Tryphoniden. 12 pp.
Tschek C., 1869: Ueber eine neue Galle auf Eichen und deren Erzeuger. 2 pp.
Tschek C., 1871: Ichneumonologische Fragmente. 32 pp.
Tschek C., 1871: Zwei neue oesterreichische Cynipiden und deren Gallen. 2 pp.
Tschek C., 1872: Ueber einige Cryptoiden, meist aus der oesterreichischen Fauna. 22 pp.
Tschinkel W. R., 1984: Zophobas atratus (Fab.) and Z. rugipes Kirsch are the same species (Coleoptera: Tenebrionidae). 9 pp. The Coleopterists Bulletin 38(4): 325-333.
Tschirnhaus M., Schacht W., 2000: Zweiflügler aus Bayern XV (Diptera, Chloropidae). 10 pp. Entomofauna 21/3: 13-22.
Tschitschérine T., 1901: Neue Platysmatini aus Central-Asien. 3 pp.
Tschorsnig H. P., 1991: Neue Raupenfliegen (Dipt.: Tachinidae) aus Spanien und Marokko. 7 Abb., 8 pp. Stuttgarter Beiträge zur Naturkunde 459A.
Tschorsnig H. P., Ziegler J., Herting B., 2003: Tachinid flies (Diptera: Tachinidae) from the Hautes-Alpes, France. 62 pp. Stuttgarter Beiträge zur Naturkunde 656A.
Tschorsnig H.-P., Andersen S., Blasco-Zumeta J., 1997: New or interesting records of Tachinidae (Diptera) from the Iberian Peninsula. 46 pp. Stuttgarter Beiträge zur Naturkunde 556A: 1-46.
Tschorsnig H.-P., Schubert H., 1999: Raupenfliegen aus Baumkronen in Mitteleuropa (Diptera, Tachinidae). 12 pp. Entomofauna 20/14: 269-280.
Tschudi-Rein K., Benz G., 1990: The bipotentiality of lepidopteran primary spermatocytes questioned. 5 pp. Mitt. Schweiz. entomol. Ges. 63(1-2): 81-85.
Tshagelishvili N. D., 1972: Biologija jablonnoj minirujuščej moli-maljutki Stigmella malella Stt. (Lepidoptera, Nepticulidae) i ej vrednaja dejatelnost v Gruzii. 6 pp.
Tshelnokov V. G., 1987: New species of springtails of the genus Entomobrya Rondani (Collembola, Entomobryidae) from the North-East of the USSR. 6 pp. (in Russian). Entomologitsheskoe obozrenie 66(1): 96-101.
Tsherhyshev S. E., 1998: A new species of soft-winged flower beetle (Coleoptera, Malachiidae) from Vietnam. 4 pp.
Tshernova O. A., 1974: Rodovoj sostav podenok sem. Heptageniidae (Ephemeroptera) v golarktike i orientalnoj oblasti. 14 pp.
Tshernova O. A., 1976: Opredelitelnaja tablina rodov podenok sem. Hertageniidae (Ephemeroptera) golarktiki i orientalnoj oblasti po ličinkam. 15 pp.
Tshernova O. A., 1980: On a little known mayfly genus Cinygma Eaton (Ephemeroptera, Heptageniidae). 7 pp. (in Russian). Entomologitsheskoe obozrenie 59(1): 107-113.
Tshernova O. A., 1981: On the systematics of adult mayflies of the genus Epeorus Eaton, 1881 (Ephemeroptera, Heptageniidae). 14 pp. (in Russian). Entomologitsheskoe obozrenie 60(2): 323-336.
Tshernova O. A., 1981: On the systematics of adult mayflies of the genus Epeorus Eaton, 1881 (Ephemeroptera, Heptageniidae). 14 pp. (in Russian).
Tshernova O. A., Belov V. V., 1982: K sistematike imago palearktičeskich podenok roda Cinygmula Mc Dunnough, 1933 (Ephemeroptera, Heptageniidae). 19 pp.
Tshernyshev S. E., 2007: A new species of the genus Ebaeus Erichson, 1840 (Coleoptera, Malachiidae) from Kyrgyzstan. 8 pp. Entomofauna 28/20: 257 –264.
Tshernyshev S., 1997: Towards the knowledge of the genus Morychus Erichson (Coleoptera: Byrrhidae) in Russia. 18 pp. [M37] Entomologica Basiliensia 20: 115-132.
Tshernyshev S., Dudko R., 1997: A new species of the pill beetles (Coleoptera, Byrrhidae) from Siberian Altai Mountaines. 10 pp. [M32] Entomologica Basiliensia 20: 133-142.
Tshernyshev W. B., Danthanarayana W., 1998: Laboratory study of flight activity in some noctuids (Lepidoptera, Noctuidae, Heliothinae). 2. Activity from day to day. 5 pp. Russian Entomol. J. 7(1-2): 96-100.
Tshikolovets V. V., 1999: Butterflies of Turkmenistan. 34 plates, 237 pp. (in English).
Tshikolovets V. V., 2000: Butterflies of Uzbekistan. 43 colour plates, 6 figure-plates, 400 pp.
Tshikolovets V. V., 2003: Butterflies of Eastern Europe, Urals and Caucasus. An illustrated guide. 48 colour plates, 176 pp. (in English).
Tshikolovets V. V., 2004: The Butterflies of Tajikistan. 77 colour plates, 500 pp.
Tshikolovets V. V., 2005: Butterflies of Kyrgyzstan. 108 colour plates, 511 pp.
Tshikolovets V. V., 2005: The Butterflies of Ladak (N.-W. India). 30 colour plates, 176 pp.
Tshikolovets V. V., 2011: Butterflies of Europe & the Mediterranean area. 544 pp.
Tshikolovets V. V., Bidzilya O. V., Golovoskin M. I., 2002: The butterflies of Transbaikal Siberia. 48 colour plates, 320 pp.
Tshikolovets V. V., Yakovlev R. V., Bálint Z., 2009: The butterflies of Mongolia. 320 pp. incl. 48 colour plates.
Tshikolovets V. V., Yakovlev R. V., Kosterin O. E., 2009: The butterflies of Altai, Sayans and Tuva (South Siberia). 374 pp. incl. 48 colour plates.
Tshistjakov J. A., 1985: Osnovye morfologičeskie osobennosti imago chochlatok (Lepidoptera, Notodontidae) i ich sistematičeskoe značenie. 14 pp.

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In United States v. Anthony Lewis, Docket Nos. 15-3245-cr (L) & 15-3307-cr (CON), an unpublished summary order, the Court (Calabresi, Livingston & Rakoff (by designation)) rejected two appeals by Mr. Lewis from two denials of two § 3582(c)(2) motions for a reduced sentence based on two retroactively applicable Guideline amendments, one in 2010 and the other in 2014. The case is of interest principally for demonstrating the see-saw application of the Career Offender Guideline vis-a-via the Drug Guideline (§ 2D1.1) in the context of § 3582(c)(2) motions.
The Circuit issued no relevant published decisions today and only two short summary orders, one of which (marginally) bears wider interest. In United States v. Mobutu Thornhill, Docket No. 15-2147-cr, the Circuit (Jacobs, Calabresi, Raggi) affirmed Thornhill’s conviction, following a jury trial, for being a felon in possession of a firearm. The sole issue discussed in the summary order is Thornhill’s argument (not made below and thus reviewed here for plain error) that the trial court “improperly allowed a lay witness to offer expert testimony concerning the identification of the weapon[,] in violation of Rule 701 of the Federal Rules of Evidence.” Order at 1.
In United States v. Leroy Derry, Docket No. 15-1829-cr, which was issued yesterday but amended today, the Circuit (by Judge Parker, joined by Judges Pooler and Livingston) ruled as a matter of statutory interpretation that Derry was ineligible for a second sentence reduction under 18 U.S.C. § 3582(c)(2) because the new 2015 amendment (under which he was seeking the second reduction) did not lower the range determined by a prior Guideline amendment in 2011, under which Derry received a lower sentence (though not to the bottom of the amended range), even if this range was lower than the range employed at the original sentencing in 1999.
The Circuit did not issue today either a decision or a summary order relevant to criminal practice.
Nor did the Supreme Court.


§ 113-2 Statement of purpose.
§ 113-5 Lands to which this chapter applies.
§ 113-6 Basis for establishing the areas of special flood hazard.
§ 113-7 Interpretation and conflict with other laws.
§ 113-8 Penalties for noncompliance.
§ 113-9 Warning and disclaimer of liability.
§ 113-10 Designation of the local administrator.
§ 113-11 Floodplain development permits.
§ 113-12 Application for permit.
§ 113-13 Duties and responsibilities of the local administrator.
§ 113-15 Standards for all structures.
§ 113-16 Elevation for residential structures.
§ 113-18 Manufactured homes and recreational vehicles.
§ 113-20 Conditions for variances.
Subdivision of land — See Ch. 180.


Meetings of legislative bodies are covered by the Open Meetings Act, with the exception of the Alaska Legislature, which is expressly excepted from coverage of the OMA. AS 44.62.310(h)(3).
The state legislature. Meetings of the state legislature are public only to the extent provided for in guidelines for meetings of legislative bodies adopted by the legislature in AS 24.60.037, discussed in more detail below, and even then, only to the extent that legislators choose to follow these guidelines.
Until the 1994 revisions to the Open Meetings Act, the statute covered meetings of the state legislature. The Alaska Supreme Court had ruled, however, that courts could not enforce the OMA against the Alaska State Legislature, despite the statutory language covering the legislature, because of the "separation of powers" between the three branches of state government provided for in the Alaska Constitution. Abood v. League of Women Voters and Anchorage Daily News, 743 P.2d 333 (Alaska 1987). The Court held that two parts of the constitution require this result: The provision giving the legislature the sole authority over its own rules of procedure, and the provision giving legislators immunity from having to answer to the courts for things they say or do in the course of legislative business. The Court also declined to find that Alaskans have an implied constitutional right of access to meetings of their legislators.
A constitutional amendment would be required to change the effect of the Abood ruling and impose enforceable "open meetings" requirements on state legislators. Since Alaska does not allow citizens to amend the constitution through ballot initiatives, such an amendment would require approval of two-thirds of both houses of the legislature, or a constitutional convention. After the court's Abood ruling, a coalition of press and public interest groups tried to get a legislative open meetings amendment on the ballot. These efforts were unsuccessful. However, pressure from the public and press finally led to enactment of ethics legislation in 1992 that included a requirement that the Alaska Legislature must generally comply with the OMA. AS 24.60.037. When the OMA was subsequently revised, in 1994, the legislature resolved the awkward discrepancy between the OMA's language, indicating the legislature was subject to the act, and the reality that this provision was unenforceable, by removing references in the OMA to coverage of the state legislature.
When the state legislature removed any reference to itself from the OMA, it correspondingly changed a provision in the section of the state statutes dealing with standards of conduct for the Alaska legislature. Specifically, it changed the language stating that "legislators shall abide by AS 44.62.310-44.62.312 (Open Meetings Law)" to state that legislators shall abide "by open meetings principles." The practical effect of this is simply to make the language of the statute conform with the reality of the Abood decision. It eliminated any argument that the statute governing legislative conduct, in Title 24, literally required compliance with the provisions of the OMA, as such, potentially including but not limited to the provision voiding actions taken in violation of the OMA. It also eliminated the argument that legislators were still literally or technically violating the OMA, even though the courts had said that there was no remedy for these violations.
Requirements of openness contained in the open meetings guidelines specified in AS 24.60.037 and the guidelines adopted by the ethics committee pursuant to it are probably no more enforceable in a court—at least with respect to actually affecting whether proceedings are closed or open—than were the provisions of the OMA itself, for the reasons (the constitutional separation of powers doctrine) explained in Abood v. League of Women Voters. Any requirement of openness by legislators is dependent upon self-policing by the legislature (and public pressure).
For purposes of the legislative open meetings guidelines, a meeting occurs when a majority of the members of a legislative body is present and action, including voting, is taken or could be taken, or if a primary purpose of the meeting is the discussion of legislation or state policy. AS 24.60.037(b). The Uniform Rules of the Alaska State Legislature control the procedure for conducting open and executive sessions of a legislative body, ibid., and in general prevail in cases where there are conflicts between these guidelines and the Uniform Rules. AS 24.60.037(e). Legislators may meet in a closed caucus or in a private, informal meeting to discuss and deliberate on political strategy. Those meetings are exempt from the legislative open meetings guidelines. AS 24.60.037(c). For purposes of this subsection, "political strategy" includes organization of the houses, assignment of committee membership, scheduling of bills, vehicles for adoptions, house-senate relations, other procedural matters, caucus operations, meetings between majority and minority caucus leaders, meetings between majority and minority caucus leaders of both houses, meetings with the governor, deliberations with regard to political strategy, and discussions of issues in the context of political strategy. A "caucus" is defined as group of legislators who share a political philosophy, or have a common goal, and who organize as a group. AS 24.60.037(g)(1). A "meeting," as defined under these guidelines, does not include a gathering of members of a legislative body for primarily ministerial or social purposes; or forums where members of a legislative body have been invited to address a group on legislative issues or concerns. AS 24.60.037(g)(3).
A "legislative body," for purposes of these guidelines, includes the state senate and house of representatives, meeting separately or in joint session; a committee of the legislature, other than the Committee on Committees, but including a standing committee, special committee, joint committee, conference or free conference committee, committee of the whole, and permanent interim committee; a legislative commission, task force or other group established by statute or resolution; or a caucus of members of one or more of these bodies. "Legislative body" does not include, and therefore the legislature presumably intends to exempt from its open meetings guidelines, any committee or group of legislators considering only matters involving the organization of a committee or a house of the legislature, including selection of legislative officers; any committee or group of legislators and the governor or staff of the Office of the Governor; legislative leadership meetings; and officers of a caucus.
Legislative Ethics Committee The Alaska Legislature has created a Select Committee on Legislative Ethics, which now includes public members. Interestingly, the legislature has specified that the Legislative Ethics Committee itself is subject to requirements concerning open proceedings, but whether these requirements are more enforceable than previous requirements that the legislature comply with the OMA is yet to be determined. That said, the legislature has provided that proceedings of the Ethics Committee relating to complaints before it are generally public after the committee determines that there is probable cause to believe that a violation has occurred, and confidential until then. AS 24.60.170(l, m). Documents presented at a hearing, and motions filed in connection with the hearing, are subject to inspection by the public. Deliberations of the committee following a hearing, deliberations on motions filed by the subject of a charge, and deliberations concerning appropriate sanctions are confidential. A more complete discussion of legislative ethics complaints, ethics committee proceedings, and related issues concerning confidentiality or availability of documents associated with legislative ethics complaints, is found in the Open Records section of this Guide, at section II.B.17.
All meetings of the committee before the determination of probable cause are closed to the public and to legislators who are not members of the committee. However, the committee may permit the subject of the complaint to attend a meeting other than the deliberations on probable cause. The confidentiality provisions of this subsection may be waived by the subject of the complaint. AS 24.60.170 (l, m).
If the committee determines after investigation that there is not probable cause to believe that the subject of the complaint has violated the ethics law, the committee shall dismiss the complaint or portions of it as to which there is no probable cause there was a violation. The committee must issue a decision explaining its dismissal. The committee's deliberations and vote on the dismissal order and decision are not open to the public or to the subject of the complaint. AS 24.60.170(f).
As noted, confidentiality requirements can be waived by the subject of a complaint. Among other things, committee proceedings conducted to make a preliminary decision about whether a complaint should be pursued or dismissed, and documents that are part of such proceedings, and a dismissal for various reasons that can be addressed in such preliminary proceedings, are confidential as provided unless the subject of the complaint waives confidentiality. AS 24.60.170(c).
Advisory opinion discussions and deliberations of the Legislative Ethics Committee are confidential, unless the requester and anyone else named in the request whom this chapter covers waives confidentiality. The committee's final vote on the advisory opinion is a public record. AS 24.60.160(b).
c. Other legislative bodies. The Supreme Court ruling in the Abood case applies to and affects only meetings of the state legislature, because of its fundamental role in the constitutional framework of the government. The OMA otherwise remains completely enforceable, and specifically applies to other legislative bodies such as borough and municipal assemblies and school boards.
The OML generally applies to the Legislature. A.R.S. § 38-431(6). But the OML does not apply to any “political caucus”—i.e., the consideration of party policy with respect to a particular legislative issue without reaching a collective decision, promise or commitment. A.R.S. § 38-431.08(A)(1). Attorney General Opinions conflict on this issue. Compare Ariz. Att’y Gen. Op. No. I90-013 (advisory committee appointed by Governor subject to OML), with Ariz. Att’y Gen. Op. No. I92-007 (advisory committee appointed by Governor not subject to OML).
Conference committees of the legislature must be open to the public but need not follow the notice and minute requirements of the OML. A.R.S. § 38-431.08(A)(2).
The Attorney General has indicated that the General Assembly and its committees are subject to the FOIA. Ark. Op. Att’y Gen. No. 84-091. However, the Constitution expressly provides that “sessions of each house and of committees of the whole shall be open, unless when the business is such as ought to be kept secret.” Ark. Const. art. V, § 13. This provision is a broad exception to the FOIA, but applies only to both houses and to “committees of the whole” and thus apparently does not reach other legislative committees. See Ark. Op. Att’y Gen. No. 84-91. All meetings of the Legislative Council, a committee created by statute, “shall be open to the public, except in those instances in which the Legislative Council feels that it is necessary to go into executive session.” Ark. Code Ann. § 10-3-305(a).
Other legislative bodies, such as a city council and county quorum court, are clearly subject to the open meeting requirement. E.g., Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968) (city council).
State Legislature: Neither the Bagley-Keene Act nor the Brown Act apply to bodies of the State Legislature. However, separate open meeting laws for both houses of the California State Legislature can be found at California Government Code Sections 9027-9031. The law requires that meetings of either house of the Legislature or any of their committees be open and public. Cal. Gov't Code § 9027. Whenever a meeting is required to be open, notice must be given in accordance with the Joint Rules of the Assembly and the Senate. Cal. Gov't Code § 9028. Closed sessions are permissible for the same reasons as set forth in the Bagley-Keene and Brown Acts, and also may be held for party caucuses and to consider matters affecting the safety and security of members of the Legislature and their employees. Cal. Gov't Code §§ 9029, 9029.5.
(4) the lessee of any hospital that was first leased after January 1, 1994 pursuant to Health and Safety Code Section 32121, which exercises any material authority of a legislative body of a local agency. Cal. Gov't Code § 54952 (d).
“A commission, committee, board or other body of a local agency is ‘created by’ charter, ordinance, resolution or other formal action of the legislative body if the legislative body ‘ ‘played a role’ in bringing … ‘into existence’ the commission, committee, board, or other body.” Californians Aware v. Joint Labor/Management Benefits Comm., 200 Cal. App. 4th 972, 978, 133 Cal. Rptr. 3d 766 (2011) (quoting Epstein v. Hollywood Entertainment District II Bus. Improvement Dist., 87 Cal. App. 4th 862, 864, 104 Cal. Rptr. 2d 857 (2001) (internal citations omitted). For example, in Epstein, the court held that the Hollywood Entertainment Property Owners Association violated the state's open meetings laws by not holding its meetings in public and failing to post an agenda 72 hours in advance. The court determined that the nonprofit organization was a "legislative body" subject to the terms of the Brown Act. A 1996 city ordinance authorized the association to govern taxpayer-funded programs within business districts and this caused the association to fall under the Brown Act because the association exercised governmental authority otherwise controlled by the city. See Epstein, 87 Cal. App. 4th at 870-71.
Conversely, in Californians Aware a school district’s joint labor/management benefits committee, established as part of a collective bargaining process, was held not to be a legislative body under the Brown Act because the committee was brought into existence through a collective bargaining agreement, not through actions of the district. Californians Aware, 200 Cal. App. 4th at 980-81.
Colorado Constitution Article V, § 14 provides that the sessions of both houses of the legislature and their committees "shall be open, unless when the business is such as ought to be kept secret."
a. The Sunshine Law applies not only to the General Assembly, but also to meetings of any board, committee, or other policy-making or rule-making body of the General Assembly. Colo. Rev. Stat. § 24-6-402(1)(d).
b. This includes legislative caucus meetings at which public business is discussed. Cole v. State, 673 P.2d 345 (Colo. 1983).
c. Unless the legislature has expressly designated business which "ought to be kept secret" pursuant to § 14 of Article V of the state Constitution, it is presumed that all legislative and committee meetings are subject to the Open Meetings Act. Cole v. State, supra.
d. However, the Sunshine Law was not intended to interfere with the abilities of legislative bodies to perform their duties in a reasonable manner, and thus strict compliance with all requirements, such as giving notice of which matters will be considered at a particular meeting, may not be required. Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978).
The D.C. Council is subject to the Open Meetings Act. D.C. Code Ann. § 1-207.42(a); id. § 2-574(3).
The Act does not to apply to the Georgia General Assembly or its committees. Coggin v. Davey, 233 Ga. 407, 211 S.E.2d 708 (1975). See Fathers Are Parents Too, Inc. v. Hunstein, 202 Ga. App. 716, 717, 415 S.E.2d 322, 322 (1992) (explaining that “[t]he Court reasoned that the Act was not intended to apply to the legislative branch since the Legislature had historically exercised the authority to adopt its own internal operating procedures, and had subsequently adopted the procedures at issue inconsistent with the Act”). The Act aside, the Georgia Constitution provides that legislative sessions and all standing committee meetings shall be open to the public. Ga. Const., Art. 3, § 4, ¶ 11. But the Constitution permits either house by rule to provide for exceptions and each has done so. Id.
The rules and procedures of the State Senate and House of Representatives supersede the Sunshine Law and govern meetings among legislators. Haw. Rev. Stat. § 92-10. Among other things, notice, agenda, and minutes of the Legislature are not subject to the Sunshine Laws. Id.
The legislative branches are not expressly included in the definition of “public agency” found at Idaho Code § 74-202(4). However, the law specifically provides that all “standing, special or select committees” meetings of either house “shall be open to the public at all times, except in extraordinary circumstances as provided specifically in the rules of procedure in either house.” Idaho Code § 74-207. This statutory provision is in direct conflict with internal rules of the respective bodies of the legislature that allow such meetings to be closed in the discretion of the committee members. In practice, such meetings (with the exception of political party caucus meetings) are nearly always open. In 2004, the Idaho Press Club brought a constitutional challenge to the legislature's use of closed committee meetings, relying on Article III, § 12 of the Idaho Constitution. In Idaho Press Club, Inc. v. State Legislature of the State of Idaho, 142 Idaho 640, 132 P.3d 397 (2006), the Idaho Supreme Court held that the legislature’s use of closed committee meetings did not violate the Idaho Constitution.
The Act specifically covers legislative bodies. See 5 ILCS 120/1.02. However, the Illinois General Assembly and its committees are not covered by the Act, but are subject to the state constitutional requirement of open meetings. See Ill. Const. art. IV, § 5(c)) (providing that sessions of each house of Legislature, as well as committees, joint committees and legislative commissions, are open to the public; sessions and committee meetings of a house may be closed if two-thirds of members elected to that house "determine that the public interest so requires," and meetings of joint committees and legislative commissions may be closed if two-thirds of members elected to each house "determine that the public interest so requires," presumably by vote); see also Ill. Const. art. IV, § 7 (a) and (b) (requiring "reasonable public notice of meetings, including a statement of subjects to be considered" by committees of each house, joint committees and legislative commissions, as well as the keeping of a journal of house proceedings and a transcript of debates, with the journal published and the transcript open to the public).
Unless covered by a specific exemption, all meetings of legislative bodies are subject to the Act. Ind. Code § 5-14-3-2(a). However, the Indiana Supreme Court has held that separation of powers considerations prevent the courts from enforcing the access statutes against the Indiana General Assembly. State ex rel. Masariu v. Marion Superior Court No.1, 621 N.E.2d 1097,1098 (Ind. 1993). Also, although the Open Door Law’s definition of a “public agency” applies to all entities that exercise “a portion of the . . . legislative power of the state,” the statute explicitly exempts the General Assembly from its public notice of meetings requirements. Ind. Code § 5-14-1.5-5(g).
The Iowa legislature is a constitutional creation, not a statutory creation. Iowa Const. Art. IV. The statute covers only governing bodies created by statute or executive order, and those bodies specifically enumerated in Iowa Code § 21.2.
Covered by KOMA. K.S.A. 75-4318(a). K.S.A. 75-4319(b)(8). KOMA applies to legislative conference committee meetings. Kan. Att’y Gen. Op. 1993-113.
"Every state or local legislative board, commission and committee" is covered. Ky. Rev. Stat. 61.805(2).
The General Assembly is a public agency for purposes of the Open Meetings Act. See 93-OMD-63 and 94-OMD-23. Committees of the General Assembly, however, other than standing committees, are exempt from the Act. Ky. Rev. Stat. 61.810(1)(i).
Covered. La. Rev. Stat. Ann. § 42:13(2): “‘Public body’ means village, town, and city governing authorities; parish governing authorities. . . including any committee or subcommittee of any of these bodies enumerated in this paragraph.” The state legislature itself is governed by somewhat different provisions, La. Rev. Stat. Ann. § 42:18, 42:21, and is exempt from some provisions. La. Rev. Stat. Ann. § 42:19.
Legislative bodies are subject to the Act unless they are performing administrative, judicial, or quasi-judicial functions. §§ 3-101(h), 3-103(a).
The OMA covers state and local legislative bodies. A joint legislative committee is a "public body" within the meaning of the OMA. 1977-78 Op. Att'y Gen. 451 (1978). Further, any state or local body that is empowered by resolution to exercise governmental or proprietary authority is a public body under the OMA. See Jackson v. Eastern Michigan University Foundation, 215 Mich. App. 240, 246-47, 544 N.W.2d 737 (1996) (University foundation which was empowered to manage university's endowment was a public body); Jude v. Heselschwerdt , 228 Mich. App. 667, 578 N.W. 2d 704 (1998) (board of review appointed to review county drain commissioner's apportionment of benefits subject to OMA); Morrison v. City of East Lansing, 255 Mich. App. 505, 660 N.W.2d 395 (2003) (committee appointed by city council to be in charge of development of community center is public body subject to OMA); Davis v City of Detroit Fin Review Team, 296 Mich App 568; 821 NW2d 896 (2012) (financial review team appointed for city not a public body subject to OMA, since it did not involve independent decision-making and could only make recommendations, not act on them.).
Article V, § 10(3) of the Montana Constitution declares: "The sessions of the legislature and the committee of the whole, all committee meetings, and all hearings shall be open to the public." Indeed, there is no "privacy exception" to this rather broad constitutional provision. Arguably, then, legislative deliberative bodies may not, in any circumstance, close their meetings.
The Nebraska Legislature and its committees are not expressly subject to the Open Meetings Act, although one writer has opined to the contrary. See Note, Nebraska Unicameral Rule 3, Section 15: To Whom Must the Door Be Open? 64 Neb. L. Rev. 282 (1985). Neb. Const. Art. III, §11, provides "the doors of the Legislature and of Committees of the Whole, shall be open, unless when the business shall be such as ought to be kept secret." Rule 3, §16, Rules of Nebraska Unicameral Legislature (2018), provides that executive sessions of legislative committees may be closed to general public, but open to "members of the news media."
The State Legislature and all county and local legislative bodies are subject to all provisions of OPMA. N.J.S.A. 10:4-8a.
The Legislature exempted itself from significant portions of the critical work of certain legislative committees, including conference committees, any matters pertaining to personnel matters, matters "adjudicatory in nature" or any bill, resolution, or other legislative matter not yet presented to either House of the Legislature. NMSA 1978 § 10-15-2(A)(B). The New Mexico Press Association and the New Mexico Foundation for Open Government attempts to close the loophole have failed in the face of the legislative refrain that open government is good for everyone except the Legislature.
A slightly modified version of the Open Meetings Law applies to the North Carolina General Assembly generally, including its committees, subcommittees and commissions. The variation from the standard provisions is that the General Assembly has different notice provisions. G.S. § 143-318.14A. The Legislative Ethics Committee, conference committees, and a caucus by members of the General Assembly are not subject to the Open Meetings Law. However, no member of the General Assembly shall participate in a caucus which is called for the purpose of evading or subverting this Article. G.S. § 143-318.18.
Covered by the law. The January filing date for regularly scheduled meetings does not apply to meetings of the legislative assembly or any committee of the legislative assembly. N.D.C.C. § 44-04-20(3).
The state legislature is not subject to the statute. Ohio Rev. Code § 111.15(A)(2). The state legislature is, however, subject to a state constitutional provision requiring that the "proceedings of both Houses shall be public, except in cases which, in the opinion of two-thirds of those present, require secrecy." Ohio Const. Art. II, § 13.
Also, a separate statute requires prearranged discussions of public business of state legislative committees to be open to the public. The statute does not open the meetings of legislative caucuses, which are all members of either house of the general assembly who are members of the same political party. Ohio Rev. Code § 101.15.
The statute applies to legislative bodies of local governments, specifically "any legislative authority . . . of any county, township, municipal corporation, school district, or other political subdivision or local public institution," and any committee or subcommittee of any local legislative authority. Ohio Rev. Code § 121.22(B)(1)(a),(b).
The state legislature is exempt from the definition of public body for purposes of the act. 25 O.S. § 304.1. Open meetings of the legislature are conducted in accordance with rules adopted by each house thereof. 25 O.S. § 309. County and local legislative and governing bodies are covered by the act. 25 O.S. § 304.1.
All local legislative bodies are covered by the Public Meetings Law. The law’s applicability to activities of the state Legislative Body is not clear. Or. Const. Art IV, § 14 requires the Legislature’s deliberations to be “open.” The Attorney General has stated that this requirement does not apply to caucuses or closed sessions where permitted under common law or relating to proceedings concerning political party organizational activities.
Covered. However, excluded from coverage is any political party, organization or unit thereof. R.I. Gen. Laws § 42-46-2(3).
The legislature is subject to the act and specific provisions apply for meetings of committees and subcommittees. S.C. Code Ann. § 30-4-80(b). The General Assembly may enter into executive session as authorized by the state constitution and the rules of either house. S.C. Code Ann. § 30-3-70(e).
Covered by the Act. Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976). However, a single legislator's presence does not convert an otherwise private meeting of an interest group in a public facility into a public meeting under the Act. Op. Att'y. Gen. No. 02-131 (Dec. 12, 2002).
All legislative branch entities are subject to the Open Meetings Act, except political parties, groups, or caucuses; or conference, rules or sifting committees, or those legislative bodies consisting of less than two persons. See Utah Code § 52-4-103(9)(a)-(c).
The legislature is governed by the act in drafting its own rules, as it is allowed to do under Chapter II of the Vermont Constitution. 1 V.S.A. § 313(c).
The Act includes "any legislative body" in its definition of public bodies. Va. Code Ann. § 2.2-3701. Specific procedures and limitations regarding the General Assembly are addressed in Va. Code Ann. § 2.2-3707.01.
The OPMA does not apply to the state legislature. RCW 42.30.020(1)(a). However, it is an open question as to whether the Act applies to caucuses and committees of the legislature. Thus far, the issue has been avoided because the legislative caucuses and committees have adopted open meeting rules that are as broad or more broad than OPMA.
The Act applies to all legislative bodies, including the State Legislature or a city council. W. Va. Code § 6-9A-2(4). A 1993 amendment to the statute provides that "a governing body of the Legislature is any standing, select or special committee, except the commission on special investigations, as determined by the rules of the respective houses of the legislature." Id.
The definition of agency includes all legislative bodies except the state legislature. Wyo. Stat. § 16-4-402(a)(ii) (1977, Rev. 1995) This exclusion does not extend to committees composed of legislators and nonlegislators. Wyo. Att'y Gen. Op. 7317 (1973).